Fireworks coming on GAB and campaign finance reform debate

MADISON, Wis. — Get ready for more fireworks Wednesday as the Assembly takes up two bills aimed at reforming Wisconsin’s troubled campaign finance law and overhauling its even more troubled political speech regulator.

Under a Republican proposal, the state Government Accountability Board would be split into two commissions, an elections entity and an ethics operation. The six election commission members would be partisan, evenly appointed by both parties and the governor, and the directors of the commissions would be appointed to four-year terms, subject to reappointment.

Created in 2007 with the support of both parties, the GAB regulates the state’s campaign finance, elections, ethics and lobbying laws.

The GAB and its supporters — including minority Democrats in the Legislature — have broadly criticized the overhaul as partisan, predicting the reforms will bring back the procedural muddle of the agency’s predecessor.

Majority Republicans say changes are necessary in the wake of an audit that found the GAB had failed to perform many of its duties and revelations it has operated as a rogue agency in pursuing a politically motivated John Doe investigation against dozens of conservative groups and the campaign of Gov. Scott Walker.

On Tuesday, the Legislature passed a bill that would end the secret John Doe probes into suspected political crimes among outrage from the left.

“It’s mind-boggling to me that we were rushed to get a new complicated law in place without careful deliberation about whether this law is going to present difficult enforcement problems,” GAB board member John Franke said of the campaign finance measure, as quoted Tuesday by the Associated Press. The GAB discussed the bills at its meeting Tuesday.

A spate of federal and state court decisions have declared sections of Wisconsin’s Chapter 11 law unconstitutional — some of it too difficult for campaign finance attorneys to understand.

Indeed, GAB members claimed as a defense to the unconstitutional John Doe investigation that state law is even too complicated for the political speech regulator to understand.

Among the biggest changes in the bill, driven by a state Supreme Court ruling in July, is a provision that clearly states candidates may coordinate with issue advocacy groups. The only prohibition is if those groups run ads that expressly call for the election or opposition of a candidate.

The reform bill also raises individual contribution limits from $10,000 to $20,000. The U.S. Supreme Court in recent years has broadened political speech. Critics of rulings like the landmark Citizens United say the court has opened a Pandora’s Box on corporate and big-donor influence on elections. Conservative targets of an unconstitutional and secret probe will tell you the left has attempted to craft the law as it likes it through bureaucratic rule-making and prosecution.

Constitutional law expert Rick Esenberg said the Legislature’s decision to address campaign finance reform is the right one.

“It is inconceivable that Wisconsin could go into the next election cycle without reform of existing law,” asserts Esenberg’s Wisconsin Institute for Law & Liberty in an analysis of campaign finance reform. “Much of Wisconsin’s existing campaign finance framework has been declared unconstitutional. This creates confusion regarding its scope and applicability.”

WILL notes there are a few matters in the reform bill that “warrant further debate.”

In particular, WILL suggests lawmakers clarify the bill’s definitions of “express advocacy,” or communications that directly support or oppose a candidate, and “coordination.”

“Additionally, the legislation continues Wisconsin’s past practice of potentially making speech a felony, and the prohibition on anonymous speech by independent expenditure and referendum committees is likely unconstitutionally broad,” the review states.

Proponents for broadly strict limits on issue advocacy believe issue ads are “phony” covers for express advocacy messages.

“I don’t think there is such a thing. If people are talking about issues they are talking about issues,” said Esenberg, founder and president of WILL. “What you see are people who wish the Supreme Court had gone in another direction and left more room for politicians to regulate speech by people during and related to elections that decide whether these politicians get to keep their jobs or not.”

As Wisconsin Watchdog has reported, a former staff member for the state GAB, months before he was hired as staff counsel for the agency, urged the GAB to find ways to “get around the constitutional right to free speech.”

In his 2008 testimony, Shane Falk made clear his contempt for conservative groups such as Wisconsin Manufacturers and Commerce, which, like their liberal counterparts, participate actively in political debate.

“When it comes to the point of it affecting an election, the compelling interest rises to the level where the state can get around the constitutional right to free speech,” Falk testified, begging the board to come up with rules blocking issue ads within a couple months of an election.

On an audio recording of the testimony, a GAB member appears to tell Falk that “getting around the constitution” is not the kind of phrasing the “nonpartisan” agency embraces. The sound of laughter drowns out the member’s complete comment.

The GAB, however, took up Falk’s idea of pushing the bounds of the constitution, cobbling together what one conservative target of the political John Doe investigation has described in a lawsuit as a “Frankenstein monster” of campaign finance rules and regulations. The U.S. Court of Appeals for the 7th Circuit in May 2014 ruled the state’s campaign finance laws as they relate to issue advocacy and the GAB’s interpretation of them are unconstitutional. And the state Supreme Court in July in a 4-2 ruling declared the investigation unconstitutional and ordered it shut down.

HEATED DEBATE AHEAD: Kevin Kennedy, director of the state Government Accountability Board, recently defending his embattled agency to the press. The Assembly takes up GAB overhaul legislation today.

Assembly votes today on GAB reform Bill.

FReep Mail me if you want on, or off, this Wisconsin interest ping list.

The Walker administration continues to take down the structure advantages that the left has built for itself in Wisconsin law.

Goodness, but isn’t the idea of having a: “...political speech regulator”

The exact opposite of the first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Constitution also says the right to bear arms “shall not be abridged,” and that language is ignored all the time.

The admonitions “abridging” various rights enshrined in the Constitution have already been rendered moot. There’s absolutely no reason to believe that freedom of speech will be immune.

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