As the Government Accountability Board ends, what’s the future for Wisconsin campaign finance regulation?

Published on Wednesday, June 22, 2016

Wisconsin’s Government Accountability Board, the election and campaign agency that supporters laud as a pioneering success and critics call a failed experiment, ends this month after nearly a decade in existence.

The board, born in bipartisanship from the state’s caucus scandal in 2001, when both parties ran political campaigns from the Capitol, was the only nonpartisan model of its kind in the country with six former judges appointed by the Governor and confirmed by the state Senate to oversee elections. It was armed with a budget unfettered by Legislative oversight to investigate campaign finance, ethics and lobbying complaints.

Its dissolution on June 30, which came with a rewrite of the state’s campaign finance rules, signed into law earlier this year by Gov. Scott Walker, is a necessary reform to some, but step backwards for others who question whether violations of campaign finance law will be aggressively policed and how citizens will know from where money flows to politicians.

GAB, which oversaw historically tumultuous recall elections and joined an investigation into the 2012 recall campaign of Walker, is set to be replaced with separate ethics and elections boards. Lawmakers will have a bigger role in the agency charged with regulating them, with authority over the majority of the commissions’ appointees and its funding for investigations.

“This is really a branch that has a strong legislative imprint, which can raise some serious separations of powers questions,” said Kevin Kennedy, GAB’s outgoing director said in an interview. “This is really a big change. It’s bigger than the old model because of the legislative control and the very clear partisanship. How it’s going to play out, it’s going to be interesting to see.”

Kennedy, Wisconsin’s longest serving election official who is set to retire in two weeks, says he doesn’t regret the boards’ investigation into coordination between conservative groups and Walker’s recall campaign with the Milwaukee County District Attorney’s Office. He warned the state’s next iteration of lobbying and ethics regulation will remain contested, as past models have, because deliberations will not be public.

Republicans have criticized the board for operating unchecked in secret, launching expansive investigations with public money targeting their party. Republican legislative leaders and conservative groups have cast Kennedy as a liberal activist who unjustly targeted them.

“The only criticism I would have of the GAB structure is we forced too much of it to be behind closed doors,” Kennedy said. “None of that changes. None of the discussion is going to be public … this is no more transparent because you put an R and D above the decision makers because none of the processes have changed.”

Republican lawmakers and conservative groups disagree. They designed the new model to be different and it will come with more citizen oversight, said Rep. Dean Knudson (R-Hudson) who led the effort to dismantle the board and create a new model.

“The concentration of all that power in one agency really led to problems no other state had ever done anything like that before,” said Knudson, who is retiring from the Legislature this year after three terms.

He said the architects of the new model purposefully took what they learned from GAB and incorporated safeguards, including citizen appointees and Legislative review of the commissions’ rules to ensure better oversight.

The new model will ensure that violations are properly investigated and not politicized, said Lucas Fuller, executive director of the Wisconsin Alliance for Reform, a conservative advocacy group.

The new model prevents “the organization from being weaponized by a political activist as we saw occur with the GAB,” he said.

The new model will operate with clear guidance from the Legislature and updated campaign finance law, not with ad hoc rulemaking and an unlimited budget, he said.

“We’re transitioning to a very common and proven system,” he said. “I have every confidence it will work well. By no means are we going back to what we had before.”

Critics of the Walker administration’s handling of transparency and its changes to the campaign finance law balk at the idea that GAB was a failed experiment.

“The only thing that failed was that they didn’t do what you wanted them to do and they weren’t supposed to do what you wanted them to do,” said Jay Heck, executive director of Common Cause Wisconsin, which tracks campaign finance and elections issues.

Heck and others are concerned about how the new model will fare with the presidential and U.S. Senate election, the commission’s first significant test.

“ It’s going to take an election cycle or two for that to play out for people to see how much money is flowing without public knowledge,” Heck said. “I think there’s only a matter of time before there’s another scandal.”

Critics of the new model says it will have partisan gridlock akin to the Federal Election Commission.

“The big problem with the bipartisan model is stalemate,” said Daniel Tokaji, a professor of law at The Ohio State University, at who has written several academic papers praising the GAB. “It becomes very difficult to take enforcement action. Politicians don’t like watchdogs, so this entity was set up to be a docile watchdog.”

Knudson disagrees.

“I find people who bring that up to be stunningly disparaging to the citizens who have just accepted positions to these boards,” he said. “What you’re assuming is that they will fail to do their duty because they’ll be so blinded by partisan allegiance and I just don’t expect that to happen.”

Kennedy says he has continued to learn from his time as the state’s chief elections regulator, but said there is little in the way of the GAB’s major initiatives that he would have done differently.

“There is very little to criticize that is not coming from some personal bias … in the sense that it went against their self interest.”

He said despite changes to the laws and the model of campaign finance and election regulation, Wisconsin’s culture of clean government remains entrenched among those who run for public office.

“There is less problems in Wisconsin than there are in other states because there is a culture of asking for advice from the former ethics board, from the former elections board,” he said. “We shouldn’t overlook that. That doesn’t mean that its better moving forward, but we do start with a heads up than other states because we do have a culture and the people who run for office come from that. That’s why we don’t have three governors in jail like you do in Illinois.”