Bill Lueders
Protesters outside the Senate chambers hours before Republicans defiantly pushed through controversial legislation.
Last Friday night, as the state Senate weighed bills to revamp the state’s campaign finance law and dismantle the nonpartisan Government Accountability Board, Minority Leader Jennifer Shilling (D-La Crosse) noted some recent editorial headlines on the topic. They included: “GAB, campaign finance bills take state in the wrong direction”, “Legislature hinders residents’ ability to follow the money” and “GOP seeks to ram through laws undoing Wisconsin’s good government tradition.”
Shilling mused that her Republican colleagues had done a rather poor job of winning support. But, of course, that didn’t matter. At the end of the day (and into the next), the bills passed. Democratic amendments to address perceived problems were clubbed to death one after another, like baby seals.
“I get it,” said Sen. Chris Larson (D-Milwaukee), during this process. “You have the votes. You can do whatever the heck you want. It doesn’t make it right.”
Jay Heck of the nonpartisan reform group Common Cause in Wisconsin, in a press release, called the process regarding these bills “among the most abusive, disrespectful, secretive and despicable in the history of the Wisconsin Legislature.”
Most of the key decisions were made behind closed doors, in Republican caucus sessions. The Senate took up the bills in an extraordinary session, rather than in last week’s scheduled floor period, which let lawmakers limit discussion and expedite passage. Details of GOP amendments were not unveiled until late Friday afternoon, shortly before the votes. The session stretched into the wee hours of Saturday morning, tempers flaring on both sides.
Because the Senate versions differ from what the Assembly had earlier passed, the bills will return to that body to be rubber-stamped on Nov. 16. But their impact on the state will be debated for years to come.
“Someday somebody is going to sit in these seats and say, ‘What the hell were they thinking?’” predicted Sen. Tim Carpenter (D-Milwaukee).
The new campaign finance bill will open the door to unlimited spending on state political campaigns. It will leave so-called issue ad groups with no fundraising or spending disclosure requirements. It will allow candidate campaigns to coordinate with these groups. It will let wealthy donors give as much as they want to political parties and campaign committees controlled by legislative leaders, who can then dole out money to candidates. It will end the requirement that donors of significant sums disclose their place of employment.
The old law’s declaration of purpose held that “our democratic system of government can be maintained only if the electorate is informed.” It said “excessive spending on campaigns for public office jeopardizes the integrity of elections.” And it found a compelling state interest in “designing a system for fully disclosing contributions and disbursements made on behalf of every candidate for public office, and in placing reasonable limitations on such activities.”
All of this language is gone. The new bill opens with a directive to impose “the least possible restraint on persons whose activities do not directly affect the elective process” — i.e., issue ad groups, which stop just barely short of expressly telling people how to vote.
The bill’s greenlighting of coordination with outside groups follows the Wisconsin’s Supreme Court’s ruling this summer that this is not illegal. Heck calls this an “outlier decision that’s going to be appealed” and could be overturned; no federal court has reached this conclusion. The change means candidates can simply direct donations above the legal limit to outside groups and then help plan how these are spent.
Senate Democrats, seeking an amendment to require disclosure of funding sources for third-party groups, noted that even the U.S. Supreme Court, in its infamous Citizens United decision that opened the floodgates to so-called independent spending, encouraged making outside groups disclose the source of their funds.
“The public has an interest in knowing who is speaking about a candidate shortly before an election,” the court wrote. “Disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
Senate Majority Leader Scott Fitzgerald (R-Juneau) argued that there was no way Wisconsin could require disclosure without being challenged in the courts. The amendment was defeated on a party-line vote, 18 to 14.
A similar fruitless debate played out over language to remove the requirement that donors of more than $200 disclose where they work. This exemption was added to the bill on the day it passed the Assembly by Speaker Robin Vos (R-Rochester), with no public hearing. Early reports indicated that the Senate was planning to strike this change but that did not happen.
GOP lawmakers said this disclosure rule might make people afraid to contribute, thus chilling their freedom of speech. Sen. Carpenter responded by quoting conservative Supreme Court Justice Antonin Scalia: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Sen. Chris Kapenga (R-Delafield) derided this, citing what he claimed was another, unfairly overlooked quote by Scalia: “The more money in politics, the better.” This may be overlooked because it’s a fabrication. Scalia’s actual quote: “Thomas Jefferson would have said the more speech the better.”
The amendment was defeated on a party-line vote. The bill as a whole passed 17-15 at midnight, with one Republican, Sen. Rob Cowles of Green Bay, voting no. He said he objected to more money in politics and eliminating disclosure of donors’ employees.
The second bill, which passed at 2:24 a.m. Saturday, splits the Government Accountability Board into two commissions; one would oversee elections, the other state laws governing ethics, campaign spending and lobbying. Both would be overseen by partisan political appointees — half Democratic, half Republican — but the ethics commission, per a Senate amendment, would include two former judges. The current GAB is governed entirely by former judges.
The new commissions would need legislative permission to spend more than $25,000 on any investigation, potentially giving veto power to the people being probed.
Republican lawmakers have affirmed they want to dismantle the GAB in part over its role in authorizing the John Doe probe into alleged coordination between the campaign of Gov. Scott Walker and outside groups. (They’ve since passed, and Walker has signed, a bill barring the future use of John Does to probe political misdeeds.) They also claim the GAB was a “failed experiment” in dire need of reform.
In fact, the board was hailed as a national model and its performance during elections ranked among the best in the country. Kevin Kennedy, the agency’s director and general counsel, on Oct. 27 provided a point-by-point rebuttal to criticisms that had been leveled against the board by Sen. Leah Vukmir (R-Wauwatosa).
“The reasons given for doing away with the GAB are based on inaccurate, incomplete and, in many cases, completely false assertions by the proponents of this legislation,” Kennedy asserted.
For instance, Vukmir alleged that the GAB “neglected to investigate” an allegation against a liberal group. But Kennedy said “a legislator’s lack of knowledge as to whether the Board has investigated a complaint does not mean the Board has not investigated it.” That’s because the Legislature has decreed that GAB staff who disclose information regarding agency investigations are subject to criminal penalties. The new bill preserves this gag rule.
During last week’s session, several Democrats argued that the GAB was being treated unfairly, especially compared to Walker’s signature job-creation agency, the Wisconsin Economic Development Corp., which they felt was more deserving of being labeled a “failed experiment.”
The bill dissolving the GAB passed on a party-line vote, with no GOP dissenters.