Curious Cure: Wisconsin GOP Injects Partisan Politics Into Nonpartisan Elections Board

After a scorching two-year controversy involving a “John Doe” criminal investigation into potential illegal coordination between Wisconsin Governor Scott Walker’s campaign and outside big money groups, state GOP leaders are readying a legislative package to dismantle the nonpartisan elections board.

State Rep. Dean Knudson (R-Hudson) is proposing a curious cure. He announced that he will author a bill to add partisan appointees to the Government Accountability Board (GAB), now governed by a nonpartisan board of retired judges.

Why add partisan members to a nonpartisan board that is supposed to act as an independent arbiter of elections, campaign finance law, and ethics? Because the board is currently too partisan, says Senate Majority Leader Scott Fitzgerald.

“I’ve been looking at the board structure, and whether there would be some advantage to continue to have judges, but also add on some additional members that may have strengths, knowledge, background that would be different from the judges. What I would call a hybrid board,” Knudson told the State Journal.

Prior to 2008, the GAB was governed by a partisan board that was ceaselessly deadlocked. Knudson’s proposal would turn back the clock and usher in the bad old days, say critics.

Rare Chance to Dismantle “Pernicious Regulatory Machine,” Says Wall Street Journal

Republicans, who have newly expanded majorities in the Assembly and Senate, have been fuming about the GAB’s authorization of the John Doe investigation into potentially illegal campaign coordination that conservatives call a “partisan witch hunt,” but the Center for Media and Democracy’s (CMD) legal team has found to be well-grounded in Wisconsin law and precedent.

The Wall Street Journal editorial board scolded Governor Walker for even considering a settlement to the case and suggested instead in a May 2014 editorial that “the legal backlash to the John Doe probe offers a rare chance to dismantle” what it calls Wisconsin’s “pernicious regulatory machine.”

The GAB’s lawful and appropriate role in the investigation has inspired Assembly Speaker Robin Vos to claim that “the GAB routinely doesn’t follow the law and there’s no accountability whatsoever” and Sen. Alberta Darling to call the GAB a “rogue agency.”

Especially telling, Sen. Darling said at a recent hearing that she thinks the GAB “staff really stepped on our toes and I’m very concerned about that.”

Jay Heck, Executive Director of Common Cause Wisconsin — a good government watchdog non-profit — was involved with the creation of the GAB in 2008 in the wake of another campaign financing scandal. Heck told CMD, “The GAB is doing their job when nobody really loves their work, at least through a partisan lens. They’re not supposed to please partisan leadership…. Democrats, when they were in power, didn’t much care for the GAB…. The recent vociferous opposition by Vos and Fitzgerald [and others] is really, I think, centered on the fact that this is one part of state government that they can’t exercise total control over.”

Retired Judge Gerald Nichol, who has been part of the GAB since its creation and recently became its chairman, told the Milwaukee Journal Sentinel that no board reforms are needed. “It truly is independent and in my experience … the six members come at all the issues honestly,” he told a reporter. “We’re not always in lockstep, and we function well.”

GAB board members Timothy Vocke and Harold Froehlich — a former Republican Congressman — testified recently that they believed the GAB board was functioning well and exercised proper supervision of the staff.

Former GAB judge Michael Brennan opined in state newspapers, “Obviously, the plan Knudson has in mind is, ‘We want our people running things.’… Political hacks are no substitute for (mostly old and usually cranky!) retired judges.”

Legislative Leaders Anxious to Dismantle the Board Voted to Create it in 2008

The GAB, whose six non-partisan retired judges are already appointed by the governor and confirmed by the legislature, was created in 2008 in response to the Legislative Caucus Scandal of 2001 and 2002, which rocked the state when top Democratic and Republican legislative leaders were charged and convicted of felony and misdemeanor misconduct in public office.

The idea for an independent, nonpartisan elections and ethics board is attributed to former Republican Senate President Mike Ellis. He sat down with members of both parties, as well as good government advocates like Jay Heck of Wisconsin Common Cause, to envision what would become the first — and still the only — independent nonpartisan elections entity in the country.

As Heck noted, “The whole key to having it work would be to make sure they had at least independent authority to investigate corruption in the capital, and so funding for that had to come from an independent source, not subject to the legislative approval of leaders of the joint finance committee.”

Another essential element was that the board had to consist of nonpartisan retired judges, Heck says, “because the appointment process in place for the [previous] state elections board often led to partisan votes on every issue without regard to the merits of the issue.” All too often, the board was deadlocked.

Rep. Knudson was not yet in office when the caucus scandal upended business as usual in the capitol building, but Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald were. The two legislative leaders who appear most eager to dismantle the GAB in fact voted to create it, along with every Republican in the legislature in the Special Session of early 2007.

Since its creation, the GAB has been hailed as “America’s Top Model” for election administration by Ohio State University law professor Daniel Tokaji, among other awards and accolades. It was placed in the extraordinary position of overseeing nine recall elections — including those of the Governor and Lieutenant Governor — in 2011 and 2012, and it did so in a manner that held the public’s trust.

GAB Audit Being Used as a Weapon

Hoping to dig up dirt on the respected board, the legislature demanded an audit of the GAB’s performance over the last four years. The recently completed audit report was substantially positive: “In recent years, GAB was responsible for completing a number of tasks that increased its workload. These tasks included helping to administer recall elections in 2011 and 2012, administering a statewide recount, implementing redistricting legislation, and working on photo identification issues.” At the same time, “GAB’s expenditures decreased from $5.8 million in fiscal year (FY) 2009-10 to $5.6 million in FY 2013-14, or by 3.0 percent.”

Nowhere in the audit report was there a suggestion that the GAB engaged in partisan behavior. Nonetheless, the GOP-controlled legislature will continue to hype audit bureau suggestions on how GAB can improve its performance and pound the GAB over minor details.

As CMD’s Brendan Fischer observed in a new report — “The Assault on Clean Election Laws: The Well-Funded Campaign to Legalize Coordination in Wisconsin and Nationwide” — the Republicans “have called for killing their own watchdog…. Elevating politics over law, unfortunately, has become routine in Wisconsin.”