Obsolete Campaign and Ethics Laws

Memo to selected members of the state legislature

December 3, 2012

TO: Selected Members of the Senate and Assembly

For generations, Wisconsin was known nationally as a beacon of clean, open and honest government. Today, if you ask people in our state for their impressions of Wisconsin politics and our state government, three words you will rarely if ever hear are “clean,” “open” and “honest.”

Wisconsin used to have the reputation for clean government for a very good reason: We used to have some of the nation’s best anti-corruption laws. There also is a very good reason our state’s reputation has taken a beating in recent years. Laws that once were valuable safeguards against political corruption have grown obsolete. They no longer provide the public much of any protection.

Our state used to have strong campaign finance laws that guaranteed transparency in election financing. Wisconsin’s disclosure laws are now badly out of date, having been rendered totally ineffective by the U.S. Supreme Court’s 2010 Citizens United decision. When five of the nine justices overturned century-old laws and opened the door to unlimited election spending by corporations, unions and other interest groups, eight of the justices ruled that disclosure of the donors fueling this spending could be required. But neither Congress nor Wisconsin's Legislature has responded to this judicial invitation and acted to put in place the needed disclosure requirements. This inaction leaves the public in the dark about who is paying for much of the election campaigning done by interest groups.

A small donor empowerment plan drafted at the end of last session (LRB-2774/2) includes the needed changes to Wisconsin’s disclosure laws that would restore their relevance in the post-Citizens United world.

Wisconsin also used to have a successful system of public financing for state elections, which proved effective for a decade or more in freeing candidates from dependence on wealthy special interests to fund their campaigns. This system fell into disrepair and was totally defunded last session. In recent years there were some excellent reform plans put forward to restore the old public financing system to good health. But these proposed reforms – most notably the Ellis-Erpenbach bill – were rendered obsolete by the Citizens United ruling and by a subsequent decision in an Arizona case. In that case, a key feature of Arizona’s public financing program which also was Ellis-Erpenbach’s heart and soul was declared unconstitutional.

As a result, a new approach to public financing is needed to work around this judicial obstacle. The small donor empowerment plan does just that. It reduces the influence of big money in elections by supercharging small donations, and it does it in a way that is legally viable and constitutionally sound.

Additionally, Wisconsin’s reputation for clean government was substantially forged by ethics laws enacted in the 19th and 20th centuries. These laws are ill-suited for the 21st century. They do not address today’s single biggest threat to ethics in government – election fundraising. Our state made bribing a public official a crime in 1897. A new form of legal bribery is growing up around us, making that old law a laughingstock.

In 1973 a comprehensive ethics code was established that included a strong conflict of interest law as well as a gift ban for public officials. Because these laws also are silent on the money in election campaigns, they have likewise been reduced to farce. A coalition of 15 citizen groups have put forward recommendations to start modernizing Wisconsin’s ethics code and restoring its effectiveness.

As the letter I sent you several weeks ago made clear, a supermajority of voters believe there is way too much money in politics and unlimited election fundraising and spending is corrupting our government. Voters of every political stripe – Republicans, Democrats and independents alike – want lawmakers to rein in the money game and put the public back at the controls.

Another area in dire need of reforming is the legislative redistricting process. A strong reform of the process was introduced last session as Assembly Bill 198. In a democracy, voters should choose their representatives, not the other way around. Creating a redistricting process that reflects this basic principle is another way to put the public in the driver’s seat and should be a top priority.

As you prepare for the upcoming legislative session, I hope you will commit to making an issue of Wisconsin’s obsolete campaign finance and ethics laws and working to make sure reforming these laws is on the Legislature’s agenda. I would welcome the opportunity to meet with you to discuss the reform proposals described in this letter.

Sincerely,

Mike McCabe
Executive Director
Wisconsin Democracy Campaign