On June 30th, the nation’s strongest model of ethical electoral oversight was quietly laid to rest after a short battle with state legislators.
Since 2008, Wisconsin’s nonpartisan Government Accountability Board (“GAB”) had served as a nationally-admired model for the administration and enforcement of election laws. It was the exception among deliberately partisan state models for election oversight: rather than serve as party representatives, its board of six former judges were prohibited from involvement in parties, PACs, and campaigns.
Born out of Wisconsin’s huge “Caucus Scandal,” the GAB was a direct response to the lackadaisical and partisan enforcement of election and ethics laws by the state Election and state Ethics Boards, which allowed the scandal to flourish. The vote to create the GAB was both bipartisan and nearly unanimous. Fittingly, the vote to kill it was neither.
During a November 2015 special session, the Wisconsin legislature voted to return the state’s electoral and ethical oversight to the model which proved so disastrous. The bill was a reaction to the GAB’s so-called “John Doe” investigations into coordination between Governor Scott Walker’s campaign and conservative groups supporting Walker with political ads during the 2011 and 2012 recall elections. The investigations resulted in the convictions of five Walker aides and associates, but were halted by the Wisconsin Supreme Court on First Amendment grounds. An appeal of the ruling has been filed with the United States Supreme Court.
Some Republican legislators felt the John Doe investigations amounted to a political witch hunt. Though the claimed goal of the 2015 legislation killing the GAB was safeguarding the state’s electoral watchdog against future partisan abuse, the legislation almost certainly guarantees that partisan abuse in the form of limited investigation and gridlock on enforcement will become the status quo.
Perhaps the most significant change from the apolitical GAB to the new Election Commission and Ethics Commission model is that the six-member Commissions are now comprised of three individuals chosen by one party, and three chosen by another. The Commissions will be split evenly on party lines, but while an equal split may seem “fair,” numerical tidiness does nothing to counter Commissioners’ incentive to make decisions benefitting the parties they represent. The votes of four Commissioners are needed to take any action, meaning one will need to break party ranks to move forward on any matter. Wisconsin is known for many great things, but in recent years the ability of its Republicans and Democrats to set aside party loyalty and unite on controversial matters has not been one.
Further, the legislature gave the ruling party another way to control—and punish—the Commissions’ enforcement activity. Where the GAB was provided with a “sum sufficient” for investigating—a legal term of art meaning there was no specific amount appropriated for GAB investigations, but rather that the GAB could draw from a revenue source as needed to “financ[e] the costs of investigations”—the new Commissions are subject to a “sum certain,” allowing the legislature to set a specific, capped amount it feels the agency deserves. A controlling party may now simply choke a Commission into obedience or, at least, incapacity.
Even if Wisconsin’s political parties were to boldly go where no party has gone before and embrace an unprecedented spirit of bipartisan oneness, newly-elevated evidentiary rules hobble the Commissions’ ability to investigate. While the GAB was able to initiate its own investigations based on “reasonable suspicion” a violation occurred, Wisconsin is now one of only eight states in the country prohibiting Commissioners from initiating one. The new rules instead require a sworn, named complaint be filed by someone other than a Commissioner before an investigation can begin. Gone, too, is the ability of a circuit court to permit the inspection and copying of financial records during the course of an investigation, based on probable cause that a violation may have occurred and such records may contain relevant information.
The impact of these measures is neither unknown nor minimal: states with similar systems have abysmal investigation records. Consider New York’s Joint Commission on Public Ethics (“JCPE”), which has an equal number of Republicans and Democrats. The JCPE, too, requires votes of more than half its members to both investigate and conclude the law has been violated. In 2015, out of the more than 200 matters it processed, the JCPE conducted just thirteen investigations into ethics violations, only one of which was found to provide a substantial basis to conclude a violation of law had occurred.
Also consider Florida’s Commission on Ethics (FCOE), which interprets and implements Florida’s ethics and financial disclosure laws. Six of the nine FCOE Commissioners must approve every agency action, which includes an investigation, a determination of whether probable cause exists, and a subsequent public hearing to determine whether the law was actually violated. Of the 244 complaints the FCOE received in 2015, just sixteen made it to the public hearing stage. Even the FCOE’s odd number of partisan Commissioners, a provision offering somewhat better protection against investigatory roadblocks, is not enough to allow the FCOE to determine whether the law was violated in more than six-and-a-half percent of complaints.
Finally, one need look no further than our nation’s ethical election watchdog, the Federal Election Commission (FEC), which Wisconsin’s new Commissions closely model in partisan composition, funding structure, and approval thresholds for action. Ample evidence shows Congress has successfully structured the FEC to avoid accountability for campaign finance violations.
The Congressional Research Service (CRS) found that 23.67% of enforcement matters brought to the FEC between 1996 and 2004 were closed with no further action taken in spite of finding “reason to believe” a violation may have occurred. More recent by Public Citizen shows the FEC has become increasingly unwilling to vote on enforcement matters, and more likely to deadlock when it actually does vote. From 2003 to 2014, there was a 83% reduction in matters that even got to a vote, down from 1,036 annually to just 176 annually, and the increase in the annual number of deadlocked votes tripled. CRS suggests the percentage of deadlocked votes on matters subsequently closed is even higher, up from 13% in 2008-2009 to 24.4% in 2014.
According to the FEC, its decreased action on matters cannot be attributed to a decrease in cases brought for its consideration. The FEC’s Enforcement Query System shows the annual number of new enforcement cases filed more than doubled during this time. FEC data shows 41 new Matters Under Review (MURs) were opened in 2003, compared with at least 91 in 2014 (as of July 29, 2016).
What’s more, cases linger for years at the FEC without resolution. FEC data obtained by Bloomberg shows that in 2015 the FEC had a backlog of 191 MURs, more than one-quarter of which remained unresolved for two years or more. Exacerbating the situation, from 2013 to 2015 the FEC had no general counsel to oversee investigations, due to reported “internal divisions among the commissioners” about who to appoint and how the job should be performed. In its FY 2017 Congressional Budget Justification, the FEC that it had fallen far short of its FY 2015 goal to resolve 75% of cases within fifteen months of their being filed, instead resolving just 49%.
In 2004, Senator John McCain called for a new enforcement agency to replace the FEC, noting that, “It is clear that the FEC is a failed agency with overtly partisan commissioners who oppose both new and longstanding campaign finance statutes.” More than a decade later, during the months leading up to the Wisconsin legislature’s adoption of a FEC model, then-FEC Chairwoman Ann M. Ravel confirmed that the FEC hasn’t changed. In an extraordinarily blunt and widely-publicized article, then-Chairwoman Ravel stated that the FEC is “worse than dysfunctional,” and that the likelihood it ever actually enforces laws “is slim.”
At first blush, with results—or lack thereof—of similar ethics enforcement models amply documented, it is peculiar that Wisconsin would willingly adopt the system it has. Inaction and deadlocks mean that campaign finance law is not enforced, important legal questions have no clear answers, and the politically active do not know whether their planned activities will violate the law.
But perhaps that is the point. The effects of abolishing the GAB will play out in the coming years, but there is no reason to expect the result in Wisconsin will be any different than what led to the Caucus Scandal, or what occurs elsewhere under similar laws. In lieu of flowers to mark its passing, expect campaign donations—the legality of which may now be of little consequence.
Thanks to Colleen Schmalberger and Warner Sallman of the Democracy Law Project, University of Pennsylvania Law School, for research assistance.