The nonpartisan state Government Accountability Board (GAB), created with near-unanimous bipartisan approval in 2007 in the wake of the legislative caucus scandal, was killed off last Thursday—the victim, its ex-chief says, of being too good at its job.
“On the one hand we were important enough, did enough good things that the people who wanted to control the process needed to squelch it,” the GAB’s ex-executive director Kevin Kennedy told Wisconsin Eye’s Steve Walters last week. “That’s almost a vindication of how good we did our jobs.”
A National Model
Wisconsin’s GAB was a rare thing in the United States: a national model of an independent, nonpartisan elections and ethics board that was led by retired judges who were nominated by the governor and approved by two-thirds of the state Senate.
The GAB was in place for Wisconsin’s recent political turmoil—the recount in the spring 2011 election for state Supreme Court, the recalls, the enactment of photo ID and a host of new elections laws, as well as the John Doe investigation into Gov. Scott Walker’s apparent coordination with allegedly independent groups during the 2011 and 2012 recalls, which was shut down by a John Doe judge and the state Supreme Court but might be taken up by the U.S. Supreme Court.
As of June 30, Wisconsin now has the regulatory model that was in place when the early 2000s caucus scandal hit: two separate commissions led by members appointed by partisan politicians.
The new Wisconsin Elections Commission and the Wisconsin Ethics Commission each has six-members and will be staffed by experts from the former GAB. Each commission is made up of two appointees from the governor, two from the majority leader in each house and two from the minority leader in each house. That means that Republicans picked four of six members on each commission—not exactly neutral representation. Each commission will have an administrator; Mike Haas was appointed the Elections Commission’s administrator.
Unlike the vote that created the GAB, the one setting up the new commissions was utterly partisan. Republicans pushed the proposal, along with a host of ethics and elections law changes that are coming to fruition now. The Republicans targeted the GAB primarily for its role in the John Doe investigation into Walker and his allies, charging that it was a partisan witch hunt. Democrats, on the other hand, opposed the Republican’s “reforms,” saying that they were payback for the GAB’s successful run as the state’s ethics and elections watchdog.
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Assembly Minority Leader Peter Barca (D-Kenosha) and Senate Minority Leader Jennifer Shilling (D-La Crosse) nominated the Democratic appointees to the new commissions. Barca told the Shepherd that he was confident that the commissioners would work hard to ensure that Wisconsin’s government and elections have integrity, but that the destruction of the GAB was unnecessary.
“Not only was this not necessary, but it’s not a good thing for clean, open and transparent government in Wisconsin,” Barca said. “There’s no doubt in my mind that this was put together because the Republicans don’t want to be held accountable.”
Ethics and Elections Changes
The death of the GAB is just one of many changes Republicans recently made to campaign, elections and ethics laws in Wisconsin right before the hotly contested presidential election this fall.
In the last legislative session alone, Republicans increased the campaign finance limits for candidates, allowed corporate donations to legislative committees controlled by Senate and Assembly leaders, legalized coordination between candidates and “independent” groups on issue ads that don’t explicitly contain the magic words “vote for” or “vote against” or the like—a type of coordination the state Supreme Court blessed when it shut down the John Doe investigation last summer—and eliminated the requirement that big donors need to identify their employers on campaign finance documents, making it much harder for the public to figure out if there is any connection between campaign donations and government perks.
But the destruction of the GAB might be the most critical change of all. In addition to returning to partisan commissions, it also requires these commissioners to ask the legislative Joint Finance Committee for funds for major investigations. That’s the same process that was in place when the caucus scandals roiled the Capitol.
Kennedy said the Elections Board was “stymied” during the caucus scandal because it didn’t have the resources to conduct an investigation or support from local prosecutors.
But Milwaukee attorney John Savage, a Republican appointee who was the final Elections Board chair when it dissolved in 2007 to transition to the GAB, told the Shepherd that money was never an issue.
“We were never turned down,” said Savage, who served on the board for 10 years.
He said the creation of the GAB nine years ago wasn’t necessary.
“I can’t speak for the Ethics Board, but the Elections Board did everything we had to do,” Savage said.
But the GAB’s Kennedy, in his exit interview with Walters, said the partisan structure of the old and new commissions has its drawbacks.
“The staff is what really runs the show in the sense of making things work on a day to day basis,” Kennedy said. “The commissioners are there to set policy, make decisions, resolve disputes. And that might be where the conflict is, where they have to put their finger up to the wind or look over their shoulder to see what’s the right decision, as opposed to what the former judges did, which was to look at the facts that were in front of them, apply the law to that.”
Crippling the John Doe Investigation
Republicans attacked the GAB often for its role in investigating Walker and conservative independent groups that were coordinating their campaign efforts during the recalls, which was likely illegal at that time. Since then, of course, Republicans legalized coordination between candidates and outside groups on issue ads, which are thinly disguised campaign ads, without disclosing that relationship to the public.
In addition, Republican legislators changed the law to exempt political crimes—such as bribery and corruption—from being the subject of a John Doe investigation. For political-type crimes, local prosecutors can conduct grand juries instead, which are more costly. Also, a few years ago Republicans changed state law so that elected officials charged in crimes like bribery and corruption, which were typically charged in Dane County, could change the venue to their home county, where they know all of the officials, including the judges and the district attorney. These actions made elected officials’ fear of being held accountable for such crimes as bribery and corruption much less of a concern.
Kennedy offered more information about the GAB’s role in Scott Walker’s John Doe in his interview with Walters, saying that the GAB was obligated to look into Walker’s potential lawbreaking. The investigation was halted and never finished.
“We were presented with facts that suggested there was a violation of the law,” Kennedy said. “The law banning coordinated activity. The law banning corporate activity. And it was a law that had been in place since 2000, in terms of what the Elections Board had applied the law, it had been reaffirmed by the Government Accountability Board in 2008, it was the advice which we gave everyone. And quite frankly, it would have been the death knell of the GAB had it chosen not to do that. We would have been coopted like the former boards had been coopted.”
He said the GAB did exactly what it was supposed to do when it participated in the John Doe, but that state law prohibited the board from discussing the allegations in public.
“It would have been nice if people had heard the discussions, had seen what the staff was presenting, on our investigation that was coupled with the John Doe,” Kennedy said. “I think you’d have a whole different perspective. People would have been saying, why aren’t you doing more?”
Kennedy noted that the statute of limitations has already run out on civil charges resulting from the John Doe, but that if the U.S. Supreme Court allows the investigation to continue, prosecutors could go ahead with their criminal probe. If that happens, they might not be able to use a John Doe investigation, since political corruption is now exempt from it.
In addition, the campaign coordination that was prohibited back in 2011 and 2012 might be legal now, thanks to a “reform” pushed by Republican legislators and signed into law by Walker after the state Supreme Court deemed it legal. (Prosecutors are asking the U.S. Supreme Court to review this new policy.)
“This truly is a sad day for Wisconsin,” Barca said on the GAB’s last day of existence. “Taken as a whole, this really is the end of clean, open and transparent government in Wisconsin. I believe we’re ripe for corruption and it disturbs me enormously.”
