The rise in third-party spending is “the most significant development in lack of accountability and transparency” in Wisconsin, said former state legislator Mordecai Lee, professor of political science at the University of Wisconsin-Milwaukee.
At the same time, the accountability board is under fire by Republican lawmakers who’d prefer to go back to the old ethics and elections boards, which were controlled by the party in power. “I think that system worked fairly well,” state Assembly Speaker Jeff Fitzgerald, R-Horicon, told the Milwaukee Journal Sentinel recently.
The Milwaukee County district attorney is leading a “John Doe” probe into Walker’s fundraising activities, a term that indicates its targets and scope are unclear but potentially wide-ranging. As of early February, the investigation had yielded criminal charges against four others with ties to Walker while he was serving as the county’s top executive, as well as the two former aides.
Timothy Russell, Walker’s former deputy chief of staff, and former county veterans official Kevin Kavanaugh were charged with stealing money from veterans’ groups; they have both pleaded not guilty. Russell’s partner, Brian Pierick, was charged with two felony counts of child enticement. A railroad executive and major Walker supporter, William Gardner, pleaded guilty to laundering campaign contributions to Walker through employees and exceeding contribution limits.
One of the two aides facing charges, Kelly Rindfleisch, was involved in the state caucus scandal and told investigators at that time that she had been doing campaign work while at her state job.
Redistricting closed to the public
A major flaw in the state’s institutional integrity, according to the State Integrity Investigation, involves its procedures for drawing new voting districts. Wisconsin scored a 15 on this process, much lower than it did in any other project ranking. That score was also lower than the comparable rating in many other states.
In each of the past five decades, the Legislature and governor have been deadlocked on redrawing the Legislature’s districts, and courts have stepped in. This past year was worse.
Madison’s mayor, Paul Soglin, who was elected as a nonpartisan, said the 2011 map drawn by GOP legislators looked “like moths have gotten in and eaten parts” of the city. It contained dozens of political islands where residents would have different representation than their neighbors. City officials said the map would force them to redraw ward maps and add new wards, including six below the 1,000-person threshold — one with just 31 people, jeopardizing voters’ anonymity.
“We were not consulted in any of this,” Dan Thompson, executive director of the Wisconsin League of Municipalities, told the State Journal. “Please slow down. We do not understand the ramifications of this bill.”
In January 2012, the flaws became even more obvious, when election officials confirmed that the maps didn’t always match up to municipal boundaries. Although it was not learned until February, Republican legislators signed pledges during the drafting process that they would not discuss redistricting publicly. Their stance was based on a supposed attorney-client privilege stemming from the use of a law firm to draw up the maps. A GOP memo also warned lawmakers to ignore public comments about the maps.
How did all this happen? In decades past, after the federal government’s spring release of census data, municipalities drew up wards by August. Legislators used those local demarcations to draw the larger districts. But in 2011, with both houses of the Legislature and the governor’s office in GOP hands, the process was radically condensed by the majority party.
Republican legislators unveiled maps on July 8, held a single public hearing five days later, and within two weeks, passed the plan. Instead of waiting for local governments to draw wards, as the law required, legislators changed the law and went first.
How lines are drawn determines how much power voters have, said McCabe of the Wisconsin Democracy Campaign. “If lines are drawn that create a lot of lopsided districts, then voters have no ability to change the party that holds the seat for that district,” McCabe said. “Voters lose their ability to shake up the system.”
“What they end up losing,” McCabe said, “is meaningful representation.”
A federal three-judge panel has ruled three times to let discovery proceed in a lawsuit Democrats filed over the maps. The panel said they had a right to learn exactly how Republicans had drawn the districts and required Republicans to pay a portion of the plaintiffs’ attorneys’ fees.
“Quite frankly, the Legislature and the actions of its counsel give every appearance of flailing wildly in a desperate attempt to hide from both the court and the public the true nature of exactly what transpired in the redistricting process,” one of the rulings said.
The party in power makes all decisions, in secret
The fracas over redistricting is one example of what longtime Capitol watchers describe as a longstanding dysfunction in Wisconsin’s legislature: Because the public has little input, decision making is mostly done in secret, and the majority party — whichever it happens to be — holds nearly absolute power over how matters are decided.
In 2011, thousands of protesters thronged the Capitol for weeks and Democratic state senators fled to Illinois to stall a bill pushed by Walker that stripped most collective bargaining rights from public employees. That set the stage for a contentious budget process. But reporters and open-government advocates said public input got short shrift in the ensuing political melee.
Thousands of people come to budget hearings. But the legislature held just four such hearings around the state, down from seven in 2009, when the previous biennial budget was passed.
And Todd Berry, president of the Wisconsin Taxpayers Alliance, a nonprofit government watchdog called them “pro forma,” adding that “the majority party holds them where they want to hold them.”
Citizens may have influenced the final budget in some cases. Walker vetoed some budget provisions after critics fought language that would have made required statements filed annually by public officials about their economic interests less accessible.
But despite the protests and pushback from Democratic legislators, Walker won passage of his collective bargaining plan.
Many big decisions were made in secret partisan caucuses, a process defended by professor Lee. “There is a need for a forum where they can all let their hair down and talk things over frankly, the way politicians only talk to other politicians,” Lee said.
But Scott Adrian, an aide to Rep. Sandy Pasch, D-Whitefish Bay, complained that spending bills worth millions or billions are “done in office with drafters and the [Legislative Fiscal Bureau] and no one — not even the minority party — has seen them before they are introduced in committee.” Often the bills get to the floor before legislators in the minority have had a chance to read them, and their amendments generally fail, Adrian said.
He said the minority may object, but “for the most part they will be debating with themselves, because the majority has the votes and usually doesn’t engage the minority in debate much on the floor.”
Can justices really discipline themselves?
Partisan squabbling has also recently disrupted the operation of the Wisconsin Supreme Court. In June, the Wisconsin Center for Investigative Journalism and Wisconsin Public Radio broke the news that Justice David Prosser had put his hands on the neck of fellow Justice Ann Walsh Bradley during an argument. Prosser told investigators that Bradley had “charged at” him, putting one fist in his face, and that his action was a reflex.
A criminal investigation was launched, but a special prosecutor decided not to charge anyone. As of February — eight months since the incident — a probe of the incident by the Judicial Commission, which investigates judicial ethics violations, was still under way.
Aggressive action is not the commission’s hallmark. From 2006 to 2010, it received 2,299 initial inquiries about judges. Of those, only three were forwarded to the Supreme Court for discipline. Two of those involved members of the high court itself. But under the commission’s procedures, even if it recommends discipline against one of the participants in the argument, the high court itself is responsible for meting it out.
Moreover, the outcomes in some judicial cases have appeared markedly partisan. In a 2010 case, for example, three justices concluded that Justice Michael Gableman had violated a Supreme Court rule by falsely portraying his election opponent's record in a commercial, while three justices said Gableman had a free-speech right to air the ad. The opinions divided along ideological lines, and no sanction was imposed against Gableman.
James Alexander, the Judicial Commission’s executive director, said the Prosser-Bradley case did “magnify the flaw” in the system, but said many other states would have the same problem. “There are over 800 judicial officials subject to judicial discipline in Wisconsin. Only seven of those are affected by the flaw you see in the system,” he said. “Otherwise the system works well and should get high marks.”
In a poll taken after the physical altercation, however, the confidence of Wisconsin residents in the Supreme Court had plummeted to 33 percent, down from 52 percent three years earlier.
Better elections, ethics enforcers
State officials must disclose their financial interests annually, and sometimes these documents reveal important conflicts of interest. In 2007, the Wisconsin Democracy Campaign cited the filings when it initiated a complaint that Supreme Court Justice Annette Ziegler had overseen numerous cases in which she had financial interests. After the Ethics Board investigated, Ziegler acknowledged she’d violated the ethics code and agreed to pay about $17,000 for a fine and investigative expenses.
But these disclosures are limited. The asset disclosures are not posted online or machine-readable. Some income and asset categories are very broad, such as “$5,000 to $50,000” and “above $50,000.” The forms don’t ask about former business partners and employers. And while Government Accountability Board staffers check some forms for completeness, they don’t audit them.
The board nonetheless showed some spunk when it investigated Gardner, the major Walker donor and fundraiser, after the Milwaukee “John Doe” investigation began. He pleaded guilty to two felonies and his company, Wisconsin & Southern Railroad, paid a $166,900 penalty — the largest ever — for illegally laundering personal and corporate funds through employees and others to donate to candidates, including Walker.
The board is “probably as effective as Wisconsin’s ever had,” said Jay Heck, the executive director of the nonpartisan clean-government advocacy group Common Cause in Wisconsin. “It’s less partisan and more independent.”
The board is nonpartisan, and its members are former judges. Funding for its investigations is “sum-sufficient” by law — meaning the board gets what it needs — although the budget for its other tasks is dependent on the Legislature, like other state agencies. Spokesman Reid Magney acknowledged the agency, as a result, isn’t always able to keep up with required duties.
According to Wisconsin Democracy Campaign research director Mike Buelow, the board appears to have done little or nothing regarding 2010 and 2011 complaints about missing information in campaign finance reports filed by Walker and three state senators, including a failure to list donors’ employers or occupations. The board also has not acted on complaints Buelow’s group filed in July 2011 about Walker and 10 wealthy donors who exceeded campaign contribution limits. And it appears to be putting some open records requests on the back burner, Buelow said.
Its investigations are secret unless it takes action, making it hard for outside observers to measure its effectiveness. But in 2009, the board asked the Legislature to pass a law allowing it to say more.
“I don’t know any other situation where a state agency has tried to be less secret — where it has identified secrecy as a problem in the performance of its mission,” said Bill Lueders, reporter at the Wisconsin Center for Investigative Journalism and president of the Wisconsin Freedom of Information Council, a nonprofit group that advocates for open government.
But the Legislature never took up the proposal.
More money, with less disclosure
Normally, an individual cannot donate more than $10,000 to all Wisconsin political committees in any calendar year. But due to a quirk in the law that became suddenly relevant last year, these limits do not apply to some spending by candidates in elections sparked by voter-initiated recalls. Money raised above the limits can only be used to respond to the recall petitions, which can include advertising. However, once an election is ordered, money raised above the limit must be returned to donors or given to charity.
“It’s difficult to write about the levels of money now being pumped into Wisconsin’s electoral process without using terms like ‘jaw-dropping’ and ‘eye-popping,’ ” wrote Lueders in his Feb. 2 Money & Politics column.
Walker, for example, by mid-January had raised at least $12.2 million for his political fights, including a battle over his recall — more than the $7.7 million all 132 legislators raised in the 2009-2010 election cycle — with nearly half from outside the state. State Democratic Chairman Mike Tate estimated that spending on the recall races could surpass $100 million.
Meanwhile, Democrats seeking Walker’s recall raised $3.9 million, with much of it also coming from outside the state.
And while Wisconsin still bans direct corporate donations to candidates, corporations now can make unlimited and undisclosed expenditures on independent campaigns on behalf of candidates. That’s due to the 2010 U.S. Supreme Court ruling in the Citizens United case and a separate lawsuit in which the Wisconsin Right to Life PAC successfully argued against limits on contributions to PACs that make only independent expenditures.
Last year, outside groups outspent nine state senators embroiled in recall fights by nearly four to one. The total spending of $43.9 million estimated by the Democracy Campaign amounted to about $57 per vote. Said McCabe: “The vast majority of campaign messages that voters saw and heard came not from those who were seeking to represent those voters, but rather from special interest surrogates.”
Amy Karon, Sarah Karon and Lauren Hasler contributed to this report.
Clarification: This story has been clarified to add details about when, during a recall, Wisconsin's usual limit on individual contributions does not apply.