Stung by the campaign finance probe into potentially illegal coordination between Governor Scott Walker and independent campaign finance groups, the Wisconsin GOP is on the warpath. Governor Walker called for "dismantling" of the Government Accountability Board (GAB), the nonpartisan, independent agency that oversees Wisconsin elections, campaign finance and ethics laws.
So now the GOP-controlled legislature is getting down to business.
Rep. Dean Knudson (R-Hudson), a veterinarian from North Dakota, is discussing dramatic changes to the GAB that the GOP wants to push through the legislature at speed before the April 2016 elections.
The changes will put the independent board firmly under the control of partisans. These changes include: getting rid of Kevin Kennedy, the director and general counsel, and Jonathan Becker, who runs the ethics and lobbying division; splitting the GAB into two agencies; getting rid of the all the retired judges on the board and replacing them with an even number of partisan appointees, a recipe for partisan gridlock; changing the rules so that the GAB cannot investigate on its own and must come back for approval from the legislature; and creating bright lines for referrals to District Attorneys. Plus the GAB would no longer have a sum-sufficient budget for investigations. GAB would have to go hat in hand to the very people it might be investigating in the legislature.
Many of these "reforms" have been tried before. Wisconsin's elections board used to have a partisan board, but few candidates were ever sanctioned. The abject failure of the partisan board to crack down on illegal behavior in the capitol resulted in the "caucus scandal" in 2002 that resulted in both leaders of the Wisconsin Assembly and Senate facing felony charges for literally shaking down donors in the halls of the capitol.
It was out of the caucus scandal that the GAB was born in a January 2007 special session. 2007 Wisconsin Act 1 was championed by former Senate Majority leader Mike Ellis (R-Neenah). It passed unanimously in the Senate and only two liberal Democrats voted against it in the Assembly.
When Knudson asks why if the GAB is such a national model has no other state replicated it? The explanation is simple: "the caucus scandal was a uniquely bipartisan one, leaders of both parties were brought down at the same time. After that, a nonpartisan GAB was relatively simple to get agreement on," explains Jay Heck who worked with the good government group Common Cause to create the nonpartisan GAB. Few other legislatures have faced such a cataclysmic bipartisan crisis.
But that does not matter to Knudson and friends who liken the new partisan board idea to the Federal Elections Commission, a do-nothing entity roundly condemned by both political parties.
"It's like setting up a disaster-relief agency and saying you're going to use the FEMA handling of Hurricane Katrina as your model," a former member of the board told the Cap Times. Knudson was not around for the caucus scandal, but Speaker Robin Vos (R-Racine) and Senate Majority Leader Scott Fitzgerald (R-Juneau) and 22 others who were in office at the time and voted for the bill.
Now those legislators will have to do a 180 to justify their new positions. As Heck explains: "The only thing that has changed since the creation of the GAB in 2007 and now is an enhanced need by the party in power to control decisions affecting elections, campaign finance and ethics. All the other false charges do not stand up to scrutiny." Below are a few of those false charges.
About Those Pesky Judges
Speaker Robin Vos recently told Steve Walkers on the Wisconsin Eye that he wants to go back to a partisan board like what Wisconsin had previously. "The notion that people are nonpartisan is difficult for people to accept, every human being has partisan inclinations." Further, "we want and equal number of Democrats and Republicans [on the board], so there is no partisan advantage as there is now."
State Rep. Joe Sanfelippo (R-New Berlin) takes the nuttiness one step further: "It's impossible for the GAB to be entirely nonpartisan in its current form," so we need to "make the agency completely partisan."
Minority Leader Peter Barca, (D-Kenosha) responded: "The irony of this is that the retired judges that currently serve on the GAB, the majority were appointed by Scott Walker and everyone one of them I believe is a Republican. So it is ironic that that is not satisfying Governor Walker and the Republican leadership…130 out of 132 legislators voted less than 10 years ago to get rid of the old system because it was fraught with so many problems."
Five of the six retired judges on the board were appointed by Walker, but apparently that is not enough for the hyperpartisan GOP.
About those Emails in the Wall Street Journal
If you read the Wall Street Journal (WSJ) editorial board, which is being fed information from Eric O'Keefe of Wisconsin Club for Growth a subject of the recent John Doe probe, the GAB has run amok. The WSJ slams regulator Kevin Kennedy for one email to controversial IRS official Lois Lerner, but the email reveals nothing other than they knew each other. The WSJ slams emails by former GAB lawyer Shane Falk as proof of the probe's partisan motivations. In fact, they show the opposite as chief prosecutor Francis Schmitz goes out of his way to ensure that Walker is not named as a "target" of the John Doe investigation before the 2014 election, helping Walker and undercutting claims of his opponent Mary Burke. New emails in the WSJ this week similarly broke no news, but prompted more agitated calls for Kennedy's removal from State Senator Alberta Darling (R-River Hills).
The GOP is hoping that all the smoke will obscure the lack of fire.
About those Regulators Run Amok
Speaker Vos has been working on his reform spin for a while now. He previously claimed that GAB judges "are not in charge" and have been manipulated by Kevin Kennedy and other staff into serving as "a rubber stamp." But former GAB Board Chair Thomas Barland, a former Republican lawmaker, said Vos' comments were "grossly exaggerated and sensationalized."
Current GAB Chairman Judge Gerald Nichol, a former Republican District Attorney appointed to the board by Scott Walker, set the record straight on WISN's Mike Gousha show: "I think the GAB in its current structure is very responsive to the people and the public of the state of Wisconsin. You have six retired, reserve judges who are nonpartisan and can't be involved in politics that have the oversight of the agency and meet on a regular basis to review the agency and all of its obligations to the people of the state."
With regard to Kevin Kennedy: "In the eight years I have been on the board, I have nothing but the utmost respect for him. He is a national leader and the people of Wisconsin are well served by his service. He serves at our pleasure and we review him every year, I have no qualms with his leadership and he certainly has a great staff…I am the chair and my wife tells me I talk to Kevin Kennedy more than I do her. In the eight years I have been on the board, I have always been aware of what is going on."
About the GAB's Authorization of the John Doe
GAB Chairman Gerald Nichol also explained for the first time the agency's involvement in the John Doe: "You have to remember that the Attorney General JB Van Hollen referred the Milwaukee District Attorney to the GAB with the subject matter of the John Doe, and DA John Chisholm came to us with information and material and asked us to evaluate it, which was our obligation. Based upon what we thought was the existing law at that time, we authorized an investigation and gave assistance, but did not conduct the John Doe." The GAB looked at 20 candidates and picked Francis Schmitz, a respected federal prosecutor with extensive Republican credentials, to lead the investigation, but that has not prevented the GOP from ceaselessly bashing the John Doe probe into potentially illegal campaign coordination between Friends of Scott Walker and various dark money groups as a "partisan witchhunt."
Do you have any regrets, asks Gousha? "No I don't. When you have these outside groups with scads of money looking to spend it on candidates and issues it should be transparent and people should be accountable and the public should have full knowledge of what is going on," said Nichol.
About the GAB's Handling of the Recall Elections
Governor Walker's Act 10 bill, which ended collective bargaining in the state, triggered an unprecedented 14 primary and general recall elections in 2011-2012.
While the recalls demanded an incredible effort from GAB staff, the GAB did not receive a penny more from the legislature. But the GAB was unfairly attacked on a number of grounds.
The GAB was attacked for:
1) Failing to flag or remove what were assumed by Republicans to be thousands of fake names from recall petitions. State law does not require the GAB to verify every recall signature or create a signature database; the law leaves that to the candidate campaign committees if they chose to challenge the signatures, yet the GAB did so anyway. With over 900,000 signatures submitted in the case of the Governor alone, only four fake names were found.
2) Scheduling the Republican and Democratic recall elections on different days. Yet, this decision was in the hands of Dane County Circuit Judge Richard Niess and the court ordered the separation of the recalls.
3) Using the maps from the 2000 redistricting and not the maps from the 2010 redistricting for the recall elections. Yet, this decision was required by state law and the redistricting schedule the GOP forced upon the state.
The tumultuous time often had Democrats furious with the GAB as well. Democrats accused the GAB of dragging its feet in certifying the Walker recall petitions, allowing Walker more time to raise unlimited campaign donations for the election. Democrats were also mad the GAB did not crack down on "fake" Democratic candidates, put up by the Republican party. But the GAB wisely held it was not its job to decide who was a real candidate. Democrats also went ballistic when a Waukesha county elections official discovered 7,000 untabulated votes the day after the election, which put conservative Justice David Prosser over the top in a close Supreme Court election. The GAB investigation pointed to incompetence, not corruption and the data later proved them right.
At the end of the day, the recall elections were certified and a hotly divided public had confidence in the results. And the GAB won plaudits from the press and the public for their innovative handling of the recall signatures (they smuggled the signatures to an undisclosed location and put 24 hour cameras on the staff as they process them).
About that Ballot Design
In October 2014, Speaker Vos used strong language to attack the GAB for hiring a Democrat to redesign the Wisconsin ballot and spring it on the public. Vos alleged that the GAB redesigned the ballot with a "sweetheart contract, going to somebody who is an elected Democrat, on the San Francisco Board of Supervisors" and that the GAB "didn't unfurl it until several days before it all has to go out."
In truth, there was no contract to redesign the ballot; the GAB had been making gradual changes to the recommended ballot design for years in consultation with county clerks. While ballot designs are often the topic of controversy, the GAB followed procedure and published the design on its website on July 12, months before the election, for scrutiny by partisans and the public. The GAB did hire Ms. Dana Chisnell, a nationally-recognized "usability expert" to train staff in methods of usability testing to improve the MyVote Wisconsin website which tells the public where, when and how to vote.
About those Audits of the GAB
A 2014 audit from Wisconsin's respected nonpartisan Legislative Audit Bureau (LAB) led Speaker Vos to proclaim: "We know that the GAB routinely doesn't follow the law and there's no accountability whatsoever." But the 2014 audit, and another released this month, both cover the cataclysmic recall period and identify very minor issues. For instance, the first audit suggested that the GAB was not conducting post-election felon checks as efficiently as it should, but this was due to bad data coming out the Department of Corrections resulting in false positives.
The second audit revealed that the GAB's ethics division received 204 complaints involving campaign finance, lobbying, code of ethics, but only initiated 21 investigations. GAB's expenditures for investigations totaled $315,800 from FY 2010-11 through FY 2013-14, hardly an agency run amok.
What is remarkable about these complaints and investigations is how little we know about them. A provision in the statutes spearheaded by former GOP Speaker Mike Huebsch requires the GAB keep investigations and their resolutions secret. While the GOP regularly complained about the secrecy of these investigations (before complaining about leaks) it was in fact Republican leadership who insisted on it over the objections of good government groups. If GAB was a leaking sieve as alleged, the public would know a lot more about the 11 special prosecutors that were hired during this time period and the results of their investigations, but we have only the auditors' dry tally.
The August 2015 audit criticizes the GAB for such minor issues as not consistently giving board members three candidates from which to chose investigators. In one of those instances, says the GAB, the board was already actively considering 20 candidates. It can be assumed that one of these 20 was Francis Schmitz, a respected Republican prosecutor, who lead the second John Doe investigation.
In truth, both LAB audits are snoozers. The audits found zero problems with financial accounting or spending, unlike the two damning audits that the LAB did on Governor Walker's flagship economic development agency the Wisconsin Economic Development Corporation (WEDC). WEDC broke the law in dozens of ways and lost track of some $12 million in loans that it could not account for over a long period of time. Taxpayers will never recover untold millions from unsecured loans to Walker donors, like the $500,000 loan it has no hope in recovering from donor Bill Minahan.
Independence Is What the Partisans Cannot Abide
The mission of the independent GAB is to "vigorously maintain public confidence in representative government." Through unprecedented recalls during a time when the electorate was bitterly divided, the GAB has overseen elections in a fair and impartial manner at a very low cost to the taxpayers. It has continued to advance voter participation in the face of an onslaught of measures, including Voter ID, designed to discourage voter participation. And Wisconsin citizens and newspapers across the state have strong confidence in the electoral results.
By every objective measure, the independent GAB is a nationally recognized leader in clean, fair and open elections. It is ranked #3 in the nation on the PEW foundation's election performance index.
Perhaps this is what the partisans in the legislature cannot abide.