WDC Testimony on Government Accountability Board and Campaign Finance ‘Reforms’

Joint Public Hearing of the Senate Committee on Elections and Local Government and Assembly Committee on Campaigns and Elections

October 13, 2015

The Wisconsin Democracy Campaign is a nonpartisan political watchdog that tracks money in state politics and believes that every citizen’s voice should be heard and every citizen’s vote should be counted. We strongly encourage committee members OPPOSE the two major de-form bills before you today.

Assembly Bill 387/Senate Bill 292: Campaign Finance

Looking beyond the fast-track nature of and minimal opportunity for public input on these far-reaching proposals, the campaign finance bill is absolutely the wrong way to go as it would reduce Wisconsin citizens to mere spectators in the political arena.

The legislation increases the amount that individuals may donate and further loosens the rules on disclosure. This means that big money would dominate our political system even more than it does now. The voice of the average citizen would be further drowned out.

Until last year, Wisconsin had a $10,000 limit on contributions to political parties. Now this bill says the sky’s the limit. As a result, the billionaires and multimillionaires will have an outsized influence over who gets elected. In fact, political contests will now be less between candidates and more between tycoons.

The bill also fails to include an obligation for outside groups that run so-called issue ads at election time to disclose their donors. That even goes against the plea of arch-conservative U.S. Supreme Court Justice Antonin Scalia.

In Doe v. Reed in 2010, Scalia wrote: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” He lampooned those who “anonymously” try to influence the outcome of an election, “hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."

Assembly Bill 388/Senate Bill 294: GAB Overhaul

The proposal to gut the independent ethics, elections and lobbying oversight agency is a recipe for more scandal and corruption. Putting partisans on the GAB will lead to a replay of the Caucus Scandal. The old Elections Board had partisan members on it, and they blocked investigations into alleged wrongdoing. This led to no enforcement of campaign rules and no disciplinary action for wrong-doing, a recipe for the Legislative Caucus Scandal of 2001-2002, a scandal that brought felony indictments against the leading Democrats and Republicans in the legislature.

The bill is built on a constant drumbeat of misinformation and vengeful accusations that the GAB renders decisions in a partisan manner, exceeds its authority and is unaccountable. None of this is the case.

Wis. Stat. 5.05 (2m), says: “The board shall investigate violations of laws administered by the board.” In addition, the U.S. Seventh Circuit Court of Appeals ruled in the Barland decision that “the GAB has joint enforcement authority with elected district attorneys to investigate violations of the state election laws.” It was common practice for the o ld Elections Board to either dismiss complaints filed or simply respond with what amounted to a slap on the wrist. Currently, no complaints need be filed for the GAB to investigate and funding is sum sufficient – the government watchdog has teeth.

These bills are the next major links in a chain of attempts toward Legislative control over an independent agency – the continued power grab by the majority in the State Legislature . One justification used by the bill sponsors is that GAB investigations are not transparent, however this issue is not even addressed in their proposal. It was the Legislature in 2007 who made the investigations of campaign finance complaints a closed process, so the GAB is simply enforcing the law. GAB staff themselves believe investigations should be open.

The GAB is accountable to the State Legislature and voters of Wisconsin. GAB’s board is chosen by a panel of appellate judges who choose several retired judges as potential board members to nominate. From that list of nominees, the governor appoints one of the retired judges, and then the state senate confirms the appointment. So there is accountability to each of the three branches of government. Gov. Walker appointed or reappointed five of the six current members of the Board, so it’s unfounded to say the board is unaccountable.

Further, judges are trained decision-makers – they see all sides to the matter at hand unlike partisans.

Bill sponsors are purposefully creating a dysfunctional system. Congress setup the Federal Elections Commission for total gridlock, and the state GOP has a similar goal. The bill would place an equal number of Democrats and Republicans on a reconstituted Elections Commission and Ethics Commission, ironically modeled after the FEC, which has been immobilized because of its partisan makeup. Even the head of the FEC acknowledges that it is “worse than dysfunctional.”

According to Ohio State law professor Daniel Tokaji, the Government Accountability Board is the nation’s “top model” for nonpartisan election oversight, lauding how it has “been successful in administering elections evenhandedly.” And the Sunlight Foundation applauded Wisconsin’s lobbying oversight, saying that Wisconsin is in the top five states in the country for lobbying transparency. That’s because of the good work of the GAB.

Why are no other states instituting such a model ? There are 37 states with an elected Secretary of State. Removing the authority to administer elections from the SOS is not a simple feat. Wisconsin has a very complex elections administration system due to their highly decentralized structure (none other like it). This unique circumstance brings its own set of challenges that the GAB has dealt with effectively.

The Ohio academics who tout GAB as a national model have nothing to gain unlike the partisans who see the GAB as a “failure” and in need of major overhaul. Today’s bill sponsors have no experience with the past system or the dysfunction of the FEC. These Republican proposals seem more self-serving than truly serving their constituents and the people of Wisconsin.

There are accusations of GAB staff “run amuck.” But a recent Legislative Audit Bureau analysis says GAB was enforcing the law when the GAB assisted with the John Doe investigation.* Further, there are plenty of examples of both parties having been upset with GAB decisions in the past demonstrating even application of the law.

Alternative proposals exist and we need not rush into such major overhauls overnight. The GAB does a great job administering elections, and we’ve got big elections coming up. Now is no time to upend or destroy this agency, which could cause chaos in November 2016.

GAB’s procedures can be changed without gutting it. First, make campaign finance investigations open. Second, remove the home-court advantage of legislators under criminal investigation – citizens do not have this privilege. Fix these two things and we strengthen the system while keeping independent oversight. The Republican proposal maintains the special legislative advantages in criminal investigations while removing all of the advantages of an independent oversight structure.

It is imperative that the committee reject these two major bills to overhaul our campaign finance system and elections and ethics oversight in Wisconsin. The rush of public review of these bills is of major concern. Others have highlighted significant drafting errors and major loopholes in these bills and they need to be fixed. Further, the timing of their implementation raises major implications for the secure and smooth implementation of Wisconsin’s November 2016 state and federal elections.

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* Here is what happened: One of the prosecutors in the John Doe I investigation brought evidence of alleged criminality to the attention of the Government Accountability Board. It had to do with alleged coordination between Scott Walker’s campaign and so-called independent groups, with Walker allegedly helping to raise money for those groups. There was cause to believe that such alleged coordination was in violation of the campaign finance laws of the state of Wisconsin. The GAB is authorized by Wisconsin statutes to investigate such violations. So the GAB did its job, and started to investigate and then cooperated with the John Doe II. It did what it was supposed to do: It tried to enforce the election laws of the state. (Then the State Supreme Court ruled that the statute against coordination was unconstitutional, so that ended the John Doe. It wasn’t up to the GAB to decide whether coordination was unconstitutional; it was up to the GAB to make sure the laws on the books were being followed.)