Wisconsin Democracy Campaign Testimony on January 2007 Special Session Assembly Bill 1

Assembly Committee on Judiciary and Ethics

January 16, 2007

Thank you for holding this public hearing today. More importantly, thank you for what you have done leading up to today to demonstrate the Legislature’s commitment to working in a bipartisan fashion on much-needed ethics enforcement reform legislation.

The bill before your committee is a necessary but not fully sufficient response to a glaring and crippling shortcoming in Wisconsin’s system of enforcement of ethical standards in state government. Wisconsin has a reasonably strong state ethics code in place, one that most certainly could be improved upon, but a reasonably strong one nonetheless. The problem is that these ethics rules are not worth the paper they are written on unless they are faithfully, consistently and rigorously enforced. And enforcement in recent years has left a great deal to be desired. A great deal.

Similarly, state law still contains the remnants of what were once some of the nation’s best campaign finance laws. But these laws have been shot full of holes and now offer the public little protection from political corruption. Tragically, it’s often been those responsible for enforcing our campaign finance laws who have been doing the shooting. What’s worse, even what little is left of Wisconsin’s campaign finance regulations is not being taken seriously by the authorities charged with enforcing them.

The state Elections Board and Ethics Board have failed the people of Wisconsin. They are no longer effective, and they need to be replaced. Because of the frequency with which the campaign finance and elections issues the Elections Board oversees intersect with the ethics and lobbying matters the Ethics Board is responsible for, it makes sense to replace them with a single enforcement authority.

Wisconsin needs a politically independent enforcement agency under the direction of a nonpartisan board. And this new enforcement authority needs real teeth.

Since receiving a copy of the draft legislation last week, we have been carefully reviewing its content. As it was initially drafted, the bill:

  • Does a good job of creating a new politically independent enforcement agency under the direction of a nonpartisan board.
  • Gives the new agency the authority to investigate possible wrongdoing and, most importantly, gives the new Government Accountability Board the financial means to independently conduct investigations.

However, there are other elements of the bill that need fixing. These include:

The bill as it is written creates an overly cumbersome process that must be followed and is overly restrictive with respect to how prosecution of both civil and criminal cases must be handled. Instead of needlessly throwing hurdles in its way, the new Government Accountability Board should be given the freedom to do what the Ethics Board and Elections Board have so noticeably failed to do in recent years. Ultimately, the new agency needs to have the authority to make sure both civil and criminal prosecutions are seen through to their conclusion. As you work to craft legislation that does this, we repeat that a critically important goal of this ethics reform legislation should be to do no harm to other existing ethics enforcement tools as it seeks to repair the Elections Board and Ethics Board. In reviewing the draft legislation, this goal has not yet been met.

Particularly troubling are unprecedented new penalties for leaking information, including a possible 9-month prison sentence and $10,000 fine for violating the restrictions spelled out in the draft legislation. Government employees with knowledge of botched investigations or cover-ups or other official misdeeds should be able to act on their duty to alert the public. This bill as it is currently written would severely punish them for doing so.

  • Prosecution authority. While the bill equips the Government Accountability Board with reasonably strong investigatory powers, the new board is more shackled when it comes to prosecution. We believe the new Government Accountability Board should be able to prosecute both civil and criminal cases. Just as importantly and perhaps even more so, the bill should focus on fixing what is wrong with the Elections Board and Ethics Board and should not limit or infringe upon the authority of any other law enforcement official in the state. As the Milwaukee Journal Sentinel editorialized Saturday, the "bill’s intent should be to augment the (enforcement) tools available, not limit them."
  • Public access to records and other public information. Public knowledge of what is going on in government is an incredibly important component of ethics enforcement. Public awareness - or even the possibility of public awareness - of ethical problems is a valuable deterrent to wrongdoing. As it is written, the ethics reform bill before your committee is actually somewhat more restrictive than current law in terms of public access to records and other public information. By rights, good ethics reform should recognize the importance of public knowledge in the enforcement of an effective code of government ethics and should include measures to increase public access. But at a bare minimum, the bill should ensure at least as much access as the public and media currently enjoy. This bill currently does not pass that test.
  • Nonseverability. The bill contains an unconventional nonseverability clause that would wipe out the entire new law if any portion of it were challenged in court and ultimately ruled unconstitutional. In fact, the provision appears to not only invalidate all the newly created enforcement structure and capacity, but also prevent the restoration of the pre-existing agency structure and laws replaced by the new law. This is the first time we have ever seen such an extreme nonseverability provision attached to a piece of legislation in Wisconsin. It is unnecessary and in fact is dangerously irresponsible. No good public purpose is served by this approach, and the clause should be removed. We believe any provision in the bill should be severable from the rest; in other words, if one element of the bill is struck down in court, the remaining elements should remain in effect.

All of the problems we have identified with the draft legislation are easily fixable, and there is ample time to make needed repairs to the bill before its passage and presentation to the governor for his signature. As long as legislative leaders and the governor are open to changes that make the new enforcement structure more workable and effective, there is no reason why major ethics enforcement reform cannot become reality in the next few weeks.

Thank you once again for holding this public hearing and listening to our suggestions of ways to improve this important legislation.