by Kevin Kennedy Former Director and General Counsel of the Wisconsin Government Accountability Board
Speech delivered at Wisconsin Democracy Campaign's 2017 annual meeting held on May 22. Video of event can be found on WisconsinEye.
Thank you for the opportunity to speak with you this evening. I am a great admirer of the Wisconsin Democracy Campaign and the people associated with it. The impact of the Democracy Campaign on Wisconsin politics is and has been profound.
Matt Rothschild has been one of my personal heroes since his time with the Progressive Magazine. Of course Mike McCabe continues to speak truth to power as he explores ways to build on his time with the Democracy Campaign. And each of you present gives me hope for the future. Because it is your involvement in the work of the Wisconsin Democracy Campaign and other progressive causes that will be the catalyst to reinvigorating Wisconsin and the nation with the energy to move forward rather than backward. To freeing us from the quagmire of selfishness and shortsightedness that has engulfed our government since 2011.
My admiration for the Wisconsin Democracy Campaign is also rooted firmly in my past with connections to the former State Elections Board. To some I was the S.O.B. at the SEB, but two of my co-workers left the State Elections Board to play a vital role in the work of the Democracy Campaign.
Gail Shea and I worked together as the leadership team at the SEB. She left the Elections Board in 1985 to serve as the first Director of the Wisconsin Democracy Campaign. Gail and I remain close friends and a strong source of support for each other.
David Julseth continues to serve the Wisconsin Democracy Campaign doing the unheralded work that ensures the accuracy of the information that is at the core of your mission. A role he also played at the SEB.
Information is one of the most powerful tools in the craft of the Democracy Campaign. David is vital to keeping that tool sharp and effective.
This evening I will talk a little bit about “Accountability in Wisconsin Government.” I hope to inspire a “Look Forward.” Because recently we have taken more than just a “Step Backward.”
It is important to look at where we have been to articulate a path going forward towards more transparency and accountability. We cannot go back to a “better time” but we can go forward using the lessons we learned to develop a more transparent and accountable framework for government at the state and national level.
We have much to be proud of as residents and voters of the Great State of Wisconsin!
Wisconsin has been a leader in the areas of election administration and lobbying regulation as well as campaign finance. Like many “good government” initiatives, scandal and human greed were at the root of the development of campaign finance and lobby reform in Wisconsin.
In the mid-1800s the lumber barons and railroad moguls controlled Wisconsin government. In 1858 the Governor and several legislators were caught taking bribes from these industries. Interestingly, the Governor fled the state before being convicted - eventually becoming attorney general in Arizona. He may actually be the first Wisconsin snowbird.
This scandal was key to the first enactment of registration and disclosure of campaign finance and lobbying activity in Wisconsin.
Lobby regulation was put in place in 1858 – no gifts, disclose who you are working for and how much you are paid.
Campaign finance disclosure was in place by 1897 with the passage of the Corrupt Practices Act. In 1905 corporate contributions were banned in Wisconsin and campaign finance disclosure for all political campaigns was in place by 1911.
Administration and enforcement of campaign finance, election and lobby laws was vested in the office of the Secretary of State – similar to many states.
These reforms were institutionalized and became part of the political culture in Wisconsin. However, like most long standing institutions, fossilization developed. Oversight and enforcement became lax or nonexistent.
By the early seventies, spurred on by Watergate, Governor Lucey appointed his Revenue Secretary, David Adamany, who was a leading political scientist at the University of Wisconsin, to head a study committee on political finance. (David passed away late last year. A very personal loss for those of us who knew him.) David’s report provided the basis for sweeping legislation requiring comprehensive registration and reporting requirements for candidates for public office, political parties and political committees at both the state and local level. These requirements were coupled with detailed contribution and spending limits.
In 1976, in light of the Buckley decision, the law had to be tweaked, if you call jettisoning spending limits a tweak. In 1978, Wisconsin instituted a comprehensive public funding program for candidates for legislative and statewide offices including candidates for the State Supreme Court.
What has followed since has been a series of court cases at the state and federal level eviscerating much of the disclosure requirements by limiting the scope of applicable regulation and narrowing the range of contribution limits.
Of course it was also a scandal that triggered the bipartisan consensus that led to the creation of the Government Accountability Board.
Madison newspaper headlines along with detailed accounts of the campaign activity of legislative staff on state time shed light on what was happening under the facade of post-Watergate reform. This forced the Dane and Milwaukee County District Attorneys to act. Five legislative leaders were convicted and sent to prison. And all this came to light because of the revelations of a jilted lover.
But like the institutionalization of the 19th and early 20th century reforms there was more to the creation of the G.A.B.:
- Increasingly partisan decision making by the State Elections Board.
- Board Members publicly overriding staff recommendations.
- Dissatisfaction with the other SEB - the State Ethics Board. The agency had successfully pursued some high level cases, but generally preferred not to ruffle feathers in its day-to-day advice and enforcement activity.
- There was also a need for one-stop shopping. The interplay of campaign finance, ethics, lobbying and even election issues often forced the regulated community to make several contacts with the two SEBs to get a full answer.
This is our mixed legacy that gives context for developing a means to move forward.
Oversight agencies are created by legislative action. Their regulatory structure reflects the degree to which the regulated community is willing to allow watchdog agencies to act independently and transparently. One measure of the viability of these agencies is the extent to which the decision-makers who authorized the agencies become “Hands-On” or Hands-Off” in the operations of the oversight agency.
For eight and half years, the Wisconsin Government Accountability Board shined as an example of what an independent ethics agency could be. A Hands-Off” model. Its nonpartisan members were former judges selected by the Governor from a list of nominees compiled by a group of randomly chosen sitting appellate court judges. Board members were subject to confirmation by a two-thirds vote of the State Senate. The six members served staggered six-year terms.
The agency staff was required by law to be nonpartisan and the agency head could not have ever been a candidate for or held an elective partisan office. The agency had an unlimited investigative budget.
On June 30th of last year, the G.A.B. was replaced by two bipartisan commissions: the Wisconsin Elections Commission and the Wisconsin Ethics Commission. A Hands-On” model.
Each commission has six members. Four members are directly appointed by legislative leaders. The remaining two members are appointed by the Governor, subject to confirmation by the State Senate, from partisan lists provided by legislative leaders.
The agency head serves a 4-year term and is subject to State Senate confirmation. Neither commission may spend more than $25,000 on an investigation without legislative approval. Each commission is required to file annual reports with the legislature detailing delegated staff activity and agency enforcement actions. Maybe a “Hands-In” model is a more apt description.
The demise of independent oversight in Wisconsin reflects the tension between the regulated community and watchdog agencies. As creatures of the governing body, with the approval of the chief executive, watchdog agencies have to have some level of accountability. The degree to which the regulated community is hands on or hands off in its approach to the oversight agency is a reflection of the values and circumstances that engendered the establishment of the agency.
It is hard to fathom how a regulatory agency under the virtual control of the legislature could have steered Wisconsin through the turbulent political activity that engulfed the Capitol between 2011 and 2016. The steadfastness of the G.A.B. and its staff was a calming and stabilizing presence in the midst of that political maelstrom.
Most oversight agencies are conceived in the wake of scandal. Watergate was a seminal factor in the creation of campaign finance and ethics agencies at the federal and state level in the early 1970s. The need for an independent enforcement agency predates the Watergate scandal. Independently elected Secretaries of State often took charge of campaign finance, elections and lobby administration and compliance.
Independent bipartisan boards compelling more financial disclosure were the hallmarks of the post-Watergate reforms. Bipartisan composition provided the regulated community a measure of influence over the actions of these boards. More often than not enforcement decisions were the driving factor in reigning in or restructuring these agencies.
What is often overlooked is that the primary role of regulatory agencies is to provide advice and guidance to its clientele. Public officials, political committees and lobbyists routinely seek direction in navigating the ebb and flow of laws governing campaign finance, ethics and lobby activity. Here a “Hands-Off” model works well for imbuing public confidence in agency actions.
Nowadays the rallying cry for a “Hands On” approach is that guidance and enforcement decisions should not be in the hands of “unelected, unaccountable bureaucrats!” However, the public outcry in response to Congress’ recent attempt to emasculate its independent ethics agency reflects a desire that our elected officials be accountable not just at the ballot box.
There is an expectation that public officials adhere to a clearly articulated code of conduct that is enforceable by a neutral entity. There is never a guarantee that advice and enforcement decisions will be universally accepted, but public confidence in the integrity of elected officials is increased when there is an independent agency for public officials to turn to for guidance. That confidence is bolstered if the agency has the authority and resources to hold public officials accountable for ethical lapses and transgressions.
Ultimately we can gauge an oversight agency’s effectiveness by the degree to which the regulated community is hands on or hands off in its control over the operations of the agency.
In order to move forward we need to cultivate the expectation that public officials adhere to a clearly articulated code of conduct that is enforceable by a neutral entity. It has to be a given that our elected officials are accountable on a daily basis not just at the ballot box. Central to that accountability is a transparency of action by an independent agency that provides direction, guidance information and enforcement under a structure that is hands off by the regulated community.
To achieve this goal requires the unrelenting efforts of people like those of you here tonight to persist like Sisyphus in pushing the building blocks for this new edifice to the top of the mountain.
We do not have to wait for a scandal. We are already mired in the muck of government focused on serving the self-centered needs of wealthy vested interests under a veil of misinformation and in many cases a shroud of secrecy.
It is past time to move forward and I am confident that you and many, many others can carry these ideas to the public.
Thank you for your indulgence this evening – but more importantly thank you for what you have been doing and what you will continue to do.