CAMPAIGN FINANCE REFORM IN WISCONSIN
WHERE WE’VE BEEN, WHERE THINGS STAND TODAY
AND WHERE WE GO FROM HERE
Prepared by Mike McCabe, Executive Director
October 17, 2002
Wisconsin has long had a reputation for progressive politics and has a lengthy record of policy innovation to back up the claim. The country’s first kindergarten was started here, and Wisconsin created the nation’s first progressive income tax. The state also pioneered workers compensation, unemployment insurance, civil service, direct primary elections and utility regulation.
Wisconsin also has been known for squeaky clean government. Indeed, in response to concern about growing corporate influence around the turn of the last century Wisconsin banned corporate contributions to political campaigns in the early 1900s. Wisconsin also was the first state to prohibit legislators from accepting gifts from lobbyists. The state has been a breeding ground for political reformers – from "Fighting Bob" La Follette a century ago to the state’s current junior U.S. Senator, Russ Feingold, one of the chief architects of the recently enacted McCain-Feingold campaign finance reform law.
Some attribute the state’s anachronistic penchant for political cleanliness and progressivism to its rural character. What this theory ignores is that while the Progressive movement was indeed deeply rooted in prairie populism, it was by no means confined to rural Wisconsin. Milwaukee – the state’s largest city and by any measure an industrial center – was a hotbed of progressive politics as well. In fact, Milwaukee was governed by a Socialist mayor for many years. Such an explanation also ignores the fact that many of Wisconsin’s progressive reforms were the brainchildren of the state’s intellectual elite. The University of Wisconsin has long heralded the "Wisconsin Idea" - the notion that the borders of the university are the borders of the state and that the scholarly research conducted on campus should be applicable to life in every corner of the state. One practical manifestation of the Wisconsin Idea was a steady flow of political reform ideas from academics at one end of State Street to policymakers in the Capitol at the other end.
Others chalk up the state’s political traditions to the immigrant stock that gave Wisconsin its ethnic character. This theory holds that the settlers who made Wisconsin their home – whether they congregated in cities or on farms or in small rural towns – brought political traditions with them that shaped their new home’s government. What this common belief overlooks is that these settlers presided over a political process that, for a time at least, was a cesspool. In the late 1800s, corruption was rampant in Wisconsin as powerful timber and railroad barons ran roughshod over representative democracy at the statehouse. Stories abound of bags of cash being openly exchanged at the State Capitol. The Progressive movement was not merely a natural byproduct of country living or cultural inheritance. It was a response to corporate excess and political graft.
Campaign finance reform circa 1900
One cornerstone of the Progressive legacy in Wisconsin is the 1906 ban on corporate contributions. The prohibition on corporate donations ushered in a new ethic in Wisconsin politics. This early campaign finance reform proved effective for 90 years, removing direct corporate influence from the political process until so-called "issue ads" appeared in state elections in 1996 and cleared the way for the reintroduction of corporate money into Wisconsin election campaigns. Issue ads eventually became the loophole that devoured the campaign finance law, opening the floodgates to a torrent of special interest money that is at the root of the corruption that has reemerged in Wisconsin politics after nearly a century-long sabbatical.
Even though the early-20th Century reforms were still in good working order in the 1970s, the Watergate scandal prompted Wisconsin to again blaze a new trail in the area of political reform. In 1977, the state enacted a comprehensive campaign finance reform law that created a system of partial public financing of state election campaigns.
Features of the system included:
Voluntary spending limits for all state races
Public financing grants equal to 45% of the spending limit for candidates who agreed to abide by the limit
A $1 check-off on the state income tax form to fund the public financing grants
Limits on campaign contributions (including $500 to an Assembly candidate, $1,000 for the Senate and $10,000 for Governor)
The system worked extremely well for over a decade. The vast majority of candidates in both parties accepted public financing and ran campaigns under spending limits. But in 1986, the legislature made a fateful decision that contributed mightily to the eventual demise of the system when it opted to no longer adjust the spending limits for inflation. The spending limits that were in place then – $17,250 for Assembly races, $34,500 for the Senate and just over $1 million for Governor – remain unchanged today.
The Wisconsin legislature also never revisited the funding source for the public financing grants and never adjusted the $1 check-off for inflation. (Minnesota, on the other hand, enacted a campaign finance system mirroring Wisconsin’s but increased its check-off to $5, gave taxpayers a partisan option allowing them to steer their $5 to the party of their choice and authorized the use of general fund revenue to supplement check-off proceeds if they proved insufficient. Minnesota also continues to adjust its spending limits for inflation. Not coincidentally, Minnesota continues to have nearly universal candidate participation in its campaign finance system.)
Taxpayer participation in Wisconsin’s check-off has declined sharply over the years. It reached a peak in 1979 when 20% of taxpayers earmarked a dollar of their taxes to the Wisconsin Election Campaign Fund (WECF). Participation has since fallen to 8%. As taxpayer participation waned, there was no longer sufficient revenue in the WECF to provide candidates the grants promised them under the system. Candidate grants were prorated, with candidates for many offices often getting less than half of the full grant.
The depleted WECF and the 1986 decision to no longer adjust spending limits proved to be a fatal combination. Prorated grants gave candidates less incentive to abide by spending limits. And the spending limits were increasingly seen as artificially low and unrealistic. Candidates began to abandon the system, declining to accept the public financing grant and accompanying spending limit.
A third factor sealed the fate of Wisconsin’s once-effective campaign finance system and has set in motion a full-blown political arms race. In 1996, Wisconsin witnessed its first issue ads sponsored by special interest groups. Even candidates who until then remained committed to running campaigns under spending limits had to think twice about tying their own hands when they could face unlimited-cost campaigns run against them by special interest groups fueled by corporate and labor union money. By 1998, an explosion of issue ad spending coupled with unlimited candidate spending produced the first-ever million dollar State Senate race. Just two years later, $3 million was spent in the 10th Senate District race in the western part of the state.
The two candidates in the 2000 race in the 10th Senate District spent a combined $700,000 (keep in mind that the voluntary spending limit that remains on the books in Wisconsin is $34,500 for a Senate race). Despite the record spending by the candidates, they were outspent on the order of 3-to-1 by special interest groups that ran their own independent campaigns for or against the candidates.
It’s about to get even worse. At the end of 2001, legislators had 42% more in their campaign accounts than they had two years earlier (and 124% more than four years ago). Entering the stretch drive of the 2002 election campaign, current legislative office holders had a 14-1 cash advantage over their challengers. Wisconsin also will see record spending in the race for governor. Between $15 million and $20 million will be spent by the gubernatorial candidates (the previous record was $8 million), and that amount could be dwarfed by issue ad spending and other independent expenditures by special interests.
The incessant money chase required to run for public office has done profound harm to the electoral process. Voters have been robbed of competitive races and meaningful choices at the ballot box. One symptom of the problem is the dramatic increase in the number of uncontested races for the legislature. In 1970, there were no uncontested legislative races; every incumbent had at least a major party opponent. In 1982, 14% of candidates lacked major party opposition. By 2000, 40% of races were uncontested. In 2002, candidates in half of legislative contests – 57 of the 116 races – lack major party opposition.
The breakdown of Wisconsin’s campaign finance system also has led to distortion of the public policymaking process. For example, Wisconsin Democracy Campaign research shows that lawmakers who crafted the most recent state budget included items worth $819 million – tax breaks, pork barrel spending projects and other budget favors – benefiting special interests who made over $3 million in campaign contributions to legislators while budget decisions were being made.
Money’s influence in Wisconsin politics has had other damaging effects. Because legislative leaders exercise so much control over campaign purse strings, money’s growing importance has concentrated power in the leaders’ hands. In the course of a single generation, Wisconsin’s legislature has gone from being one of the nation’s most decentralized to one of the most centrally controlled. The maverick spirit that was a hallmark of past legislatures is gone. Rank and file legislators now have little choice but to dutifully walk lockstep behind their all-powerful leaders.
The failure of the state to adapt its campaign finance system to changing circumstances also is at the root of what is surely the widest and deepest political scandal in Wisconsin in recent memory. The Capitol corruption scandal already has resulted in the criminal indictment of a prominent state senator on 18 felony charges and will likely yield criminal charges against other top political leaders. The criminal investigation focuses on the misuse of public offices and resources by lawmakers and other state employees for electioneering purposes, as well as widespread allegations that legislators have traded public policy for campaign donations. In addition to apparent violations of campaign finance and ethics laws, prosecutors are looking into the possibility that employees may have violated the state’s open records laws by altering, hiding or destroying documents sought by investigators.
The last reform breakthrough
Although the 1977 campaign reforms enacted in the wake of the Watergate scandal mark the last time Wisconsin has made wholesale changes to its campaign finance system, the state did pass one notable reform law in the late 1990s. As evidence of growing special interest influence in state government mounted and calls for better disclosure grew louder, the legislature responded in 1998 by adopting a "Citizens Right to Know" law requiring electronic filing of campaign finance reports.
A broad coalition of reform advocates, including the Wisconsin Democracy Campaign, actively worked for the passage of the Citizens Right to Know bill. But among all the advocates, one group – Wisconsin Citizen Action – deserves special credit. WCA made the bill its top reform priority and focused its energy and resources on securing passage of the measure.
Under the Citizens Right to Know law, the state Elections Board was supposed to implement a system of electronic filing by July 1999. The Board failed to do so. It was not until Wisconsin Citizen Action and the Wisconsin Democracy Campaign threatened a lawsuit seeking a court order that the Elections Board finally adopted an emergency rule in May 2002 implementing the law. The campaign reports filed by candidates in July 2002 were the first to be submitted in an electronic format in Wisconsin.
Recent reform developments
Not surprisingly, discussion of comprehensive campaign finance reform intensified as the campaign arms race accelerated. In 1996, then-Governor Tommy Thompson appointed a blue ribbon task force to recommend changes to Wisconsin’s campaign finance law. The panel, chaired by University of Wisconsin political science professor Don Kettl, became known as the Kettl Commission. Kettl’s colleagues on the commission were fellow academic David Adamany and three consummate political insiders – attorney and Democratic operative Robert Friebert, Thompson aide James Klauser and Republican campaign operative Brandon Scholz. In a May 1997 report, the Kettl Commission recommended wide ranging revisions to Wisconsin’s campaign finance system, including:
Revised spending limits ($60,000 for an Assembly race, $140,000 for the Senate and $3.5 million for Governor)
Public financing grants to candidates who agree to limit their spending equal to 25% of the spending limit
$750,000 of general tax revenue to fund the public financing grants. (Even when coupled with the slightly more than $300,000 generated annually by the $1 income tax check-off, the proposed funding fell far short of covering the estimated $3 million cost of the recommended system.)
Increases in the existing contribution limits on political parties and political action committees (PACs)
Registration and reporting requirements for issue ads and other independent spending activity by special interest groups
A provision releasing candidates from spending limits, removing the limit on allowable contributions from a political party and doubling all other contribution limits if candidates have issue ads or other independent campaigns run against them
The Kettl Commission’s recommendations were not enthusiastically received in the reform community and failed to gain traction in the legislature. But after spending $7 million on his successful re-election bid in 1998, Governor Thompson added $750,000 to his proposed 1999-2001 state budget as a down payment on any campaign finance reforms that the legislature might approve later in the session. While the amount was much less than needed to fully fund the Kettl Commission plan, the governor’s gesture was seen by some as a change of heart for Thompson, a traditional opponent of public financing of election campaigns.
Governor Thompson’s advocacy for campaign reform ended there. The legislature didn’t pass reform legislation and thus never used the $750,000 the governor set aside in his budget. Thompson was not heard from again on the subject until he pledged in his January 2000 State of the State Address to sign any campaign reform bill that reached his desk - a nice but empty gesture considering it was clear by that time that leaders in the Assembly and Senate had no intention of working out an agreement on reform.
Legislators also offered a flurry of proposals to overhaul the campaign finance system during the 1999-2000 legislative session. The two most notable comprehensive reform proposals were Senate Bill 111 – co-sponsored by Democratic Senator Brian Burke and Republican Representative Steve Freese – and Senate Bill 113 introduced by Senator Mike Ellis. The Burke-Freese bill mirrored the Kettl Commission recommendations in many respects, but called for 50% public financing rather than 25%. The Ellis proposal was much bolder than Kettl, breaking new ground with a proposal to give candidates matching grants to counter independent spending by special interests or high-spending opponents.
The key elements of SB 113 included:
33% public financing of state election campaigns
revised spending limits, including $2 million for governor, $120,000 for senate and $60,000 for assembly
supplemental grants to candidates facing opponents who refuse to limit their spending
prior notice of anticipated independent spending by special interest groups
treatment of issue ads as independent expenditures subject to regulation if they mention a candidate, office or party within 60 days of an election
supplemental grants to candidates who have independent campaigns run against them or on behalf of their opponent
elimination of leadership-controlled legislative campaign committees (LCCs)
complete nonseverability, meaning if any part of the bill was found unconstitutional, the entire law would be void.
SB 113 was formally endorsed by Common Cause in Wisconsin. While the Democracy Campaign was lavish in its praise of many of the bill’s provisions, WDC never formally endorsed SB 113. WDC chose to withhold an endorsement primarily for two reasons: 1) the bill only had Senate Republican sponsors; and 2) discomfort with prior notice of planned independent spending as well as the bill’s nonseverability.
SB 113 was never allowed a vote in the Senate. Instead, Senate Democrats passed their own version of reform – Senate Bill 190 – which contained many elements of SB 113 but differed most notably in the size of public financing grants to candidates. SB 113 provided 33% public financing, while SB 190 provided 57%.
The Assembly approved weak legislation that promised 33% public financing but provided no funding source for the grants and also included no issue ad disclosure or matching grants for independent expenditures. When the Assembly and Senate took no action to reconcile their differences, comprehensive reform was dead for the 1999-2000 session.
Judicial reform efforts in 1999-2000
The other significant reform proposal that gained some traction during the 1999-2000 legislative session was the "Impartial Justice" bill, SB 181. The proposal called for 100% public financing for state Supreme Court candidates who agreed to limit their spending. The effort to promote the Impartial Justice bill was led by Wisconsin Citizen Action.
In the early part of the session, the Wisconsin Democracy Campaign board of directors adopted the following statement:
"We want to express our general support for the Impartial Justice bill. There are still details that need to be worked out, but we believe Supreme Court elections offer a workable testing ground for the concept of full public financing and a good place to start a meaningful debate on the issues surrounding this concept. Our primary purpose, however, is to encourage comprehensive proposals that deal with legislative campaigns."
WDC did not actively advocate for the Impartial Justice bill, however, instead staying focused on promoting comprehensive reform.
After killing comprehensive reform legislation, the legislature turned its attention to the Impartial Justice bill in the final days of the session. After the legislature’s Joint Finance Committee approved SB 181 and sent it along to the Senate for floor debate, the Milwaukee Journal Sentinel – at the urging of Common Cause in Wisconsin – weighed in on the issue. In an editorial entitled "Lawmakers walking away from reform that matters," the newspaper wrote:
"(T)he Legislature is once again primed to walk away from campaign finance reform, edging toward adoption of a paltry half loaf instead of comprehensive overhaul of discredited practices and procedures…. (T)heir so-called impartial justice bill that provides state campaign grants in exchange for accepting spending caps is merely a sideshow to the real drama unfolding in the Capitol: the dismemberment of any legislation that approaches comprehensive reform…. The Supreme Court simply is not where the most serious problems lie. The problem of special interest influence is most notorious in contests for the Legislature and statewide offices. Neither Common Cause nor the Wisconsin Democracy Campaign has endorsed the impartial justice bill. That’s not necessarily a knock on the bill’s goals. It’s just a matter of priority. Why can’t this dithering Legislature recognize the same thing? Guess."
The Senate nevertheless passed the Impartial Justice bill on a 30-3 vote, but the Assembly held up the bill and ultimately ran out the clock on the session without taking action.
2001-2002 legislative session
As soon as the 1999-2000 legislative session wrapped up, WDC immediately started crafting a new comprehensive reform plan that could bridge the gap between competing factions in the legislature and began working to assemble a coalition of advocacy groups in support of the proposal. The plan, dubbed "Voters First," took the best elements of SB 113, SB 111 and other reform proposals (including some elements of the Kettl Commission plan). Voters First split the difference between the two parties’ positions on the level of public financing. It called for 45% public financing, half way in between the 33% called for in Republican proposals and the 57% passed by the Senate Democrats.
WDC unveiled the plan in July 2000. At that time, Voters First had the support of 20 groups, including Common Cause in Wisconsin. The coalition eventually grew to 47 organizations that remain in the alliance to this day despite the fact that some have been pressured by legislative leaders to remove their names from the coalition list.
During the 2000 election campaign, the coalition asked candidates to pledge support for the Voters First plan. By election day, 67 legislative candidates - Democrats, Republicans and independents alike – had pledged their support for the initiative.
Right after the election and before the 2001-2002 legislative session began, WDC and some of the coalition partners started contacting legislators about sponsoring a Voters First bill. We lined up a bipartisan group of legislators to introduce the legislation. (The efforts of coalition partners like the Coalition of Wisconsin Aging Groups, which secured Republican Senator Peggy Rosenzweig’s support, were critical.)
Legislative sponsors and Voters First coalition members held a press conference on February 13, 2001 to announce the proposal, which was introduced as Senate Bill 62. An identical companion bill, AB 155, was introduced in the Assembly. Voters First was the first comprehensive campaign finance reform bill to be put forward by legislative sponsors from both parties in both houses.
Meanwhile, Senator Mike Ellis reintroduced his reform legislation, this time as Senate Bill 104. The bill continued to call for 33% public financing, and it continued to require prior notice of planned independent spending activity by special interest groups. SB 104 also remained completely nonseverable.
Hearings were held in both houses on the major comprehensive campaign reform bills, including SB 62/AB 155 and SB 104. The hearings also focused on SB 115, the reintroduced Impartial Justice bill. The Senate Judiciary, Consumer Affairs and Campaign Finance Reform Committee, chaired by Milwaukee Democrat Gary George, took action first. Senator George integrated many of the key elements of the Voters First plan into SB 104.
George changed SB 104 in several major ways. These included: 1) the level of public financing was increased from 33% to 45% as called for in Voters First; 2) prior notice of anticipated independent spending was replaced with contemporaneous reporting; 3) the ban on PAC-to-PAC transfers in Voters First was included; 4) spending limits for statewide offices were brought into line with those in Voters First, while legislative spending limits were left at the levels called for in the original Ellis bill (but the legislative limits in SB 104 were later lowered to Voters First levels); and 5) a ban on fundraising during the budget process was added.
Senator George also borrowed many less significant provisions from Voters First in recrafting SB 104. For example, he changed requirements for qualifying for a public financing grant to mirror those in SB 62, he replaced SB 104’s funding source with SB 62’s (a $5 income tax checkoff with a partisan option supplemented with general tax revenue), and he incorporated limited severability into the bill (the severability provisions were not exactly the same as those in Voters First, but they were close).
In July 2001, the committee approved the plan on a bipartisan 4-1 vote. The Ellis-George compromise significantly broadened the bipartisan legislative coalition by adding the support of George, Senate Democratic Majority Leader Chuck Chvala, Republican committee member Joanne Huelsman, Ellis allies like Robert Cowles and Dale Schultz, plus Voters First authors including Milwaukee Democrat Brian Burke, River Falls Republican Sheila Harsdorf and Wauwatosa Republican Peggy Rosenzweig.
WDC’s executive director met with Mike Ellis some time after the bill cleared the Judiciary Committee. Ellis expressed concern about the issue ad disclosure language George had inserted and indicated a desire to try to amend it on the floor of the Senate. WDC suggested an amendment that would retain a contemporaneous reporting approach but would strengthen the language, bringing it in line with the issue ad disclosure provisions in Voters First. Ellis had an amendment drafted to that effect.
Before SB 104 went to the Senate floor, Common Cause in Wisconsin intervened on the question of issue ad disclosure. CC-WI’s director later told WDC that he and Ellis had decided to "load the bill up" for strategic reasons. Among the changes was a return to prior notice of anticipated independent spending, including issue ads. (Paradoxically, it was this feature that was later used by Assembly Speaker Scott Jensen and Senate Majority Leader Chuck Chvala to doom reform to failure in court. When condemned for doing so, Jensen and Chvala shot back at critics, "You really should not continue to blame others for accepting your suggestions.")
SB 104 passed the Senate on a bipartisan 25-8 vote February 26 of this year. Later that same day, the Assembly passed its own, less ambitious version of reform (AB 843) on an 87-12 vote. Leaders in the two houses did not agree to convene a conference committee, however, blocking the final negotiations needed to work out differences between SB 104 and AB 843 before the legislature’s regular session ended March 14.
After the legislature adjourned its regular session, WDC called for an extended session of the legislature to finish the remaining work on campaign reform legislation. Neither legislative leaders nor the governor agreed to call a special session. Reform appeared dead.
The legislature did need to convene in special session to deal with a $1 billion state budget deficit. During deliberations on the budget repair bill, Senate Democrats attached SB 104 to the legislation. Because the Senate-passed version of the budget adjustment was different than the Assembly’s (among the many differences was the presence of campaign reform in the Senate bill and the absence of reform in the bill adopted by the Assembly), a conference committee had to be convened to work out a compromise.
The compromise ultimately included a comprehensive campaign reform plan. The plan included many of the features of SB 104, but it did not include a guaranteed funding source (instead using a voluntary $20 income tax checkoff to finance the plan). It also had a delayed effective date of July 2003 and funneled matching funds through the political parties rather than giving them directly to candidates. Like the Senate-adopted version of SB 104, it required prior notice of planned issue ad spending, though it required reporting of anticipated activity only 30 days in advance of an election rather than 63 days in advance under the Ellis bill.
The plan was panned by reform advocates. Only University of Wisconsin professor Don Kettl unequivocally praised it, calling it a "major step forward." Senator Ellis and Common Cause in Wisconsin urged Governor Scott McCallum to veto it in its entirety. WDC urged the governor to use his partial veto to eliminate the prior notice provision, calling it a "poison pill" that "unnecessarily exposes the plan to risk of being overturned in court." WDC also urged a partial veto of the nonseverability clause, saying it was "designed to prevent the reforms from ever taking effect."
The governor chose to approve the plan in its entirety. It was immediately challenged in court by a collection of special interest groups ranging from the state chamber of commerce and the state teachers union to the realtors association and the state’s largest anti-abortion lobby group. The matter is pending in court, and in all likelihood it will be struck down.
Judicial reform activities in 2001-2002
The Impartial Justice bill was reintroduced in early 2001 as Senate Bill 115. Advocacy in support of Impartial Justice was again led by Wisconsin Citizen Action.
While WDC and WCA had fundamental strategic and policy differences in the past, the two organizations took important steps in 2000 and 2001 to improve the relationship and narrow philosophical and policy differences. Perhaps most notably, WDC and WCA reached an understanding on the Impartial Justice bill that put WDC in a position to be able to formally endorse the bill. When the bill was finally drafted, however, WCA opted for an approach to issue ad disclosure that the WDC board could not support. As a result, WDC remained neutral on SB 115.
In the end, neither house of the legislature took action on judicial reform legislation in the 2001-2002 session.
Reflections on past developments & lessons learned
Honest differences of opinion unquestionably exist between members of Wisconsin’s reform community on policy questions as well as strategy. On the policy front, Wisconsin Citizen Action and its reform allies believe that only full public financing will remedy what ails Wisconsin politics, arguing the state needs a "clinically-tested, maximum-strength cure" like the reforms that have been put in place in Maine and Arizona. The Wisconsin Democracy Campaign, Common Cause in Wisconsin and 45 other advocacy groups have been willing and able to coalesce around reform legislation that calls for 45% public financing.
In terms of strategy, Wisconsin Citizen Action and its coalition members have focused on judicial reform, with the idea that it would be easier to get legislators to enact reform that does not directly affect them. Their theory is that a breakthrough on judicial reform would amount to a foot in the door that would then enable reformers to argue that what’s good for the judges is good for lawmakers. Groups like Common Cause in Wisconsin and the Wisconsin Democracy Campaign have taken the position that advocacy efforts should focus on comprehensive reform because the most serious problems are found in the legislative and executive branches, not the judiciary.
Despite the philosophical and strategic differences, Wisconsin’s reform community has been able to project a remarkably united front and has been able to move together in the same general direction, albeit sometimes on parallel tracks. For example, both judicial and comprehensive reform legislation have gained traction simultaneously in the legislature. More importantly, the legislation has been able to move on duel tracks without fracturing legislative support for either comprehensive or judicial reforms and without discernibly slowing progress on either front.
With respect to the Impartial Justice bill, Common Cause in Wisconsin and the Democracy Campaign have had philosophical and strategic reservations. Common Cause’s concerns remain unchanged, while WDC’s have softened over time. In the most recent legislative session, WDC remained neutral on the legislation and even for a time entertained formally endorsing it.
On comprehensive reform, Wisconsin Citizen Action and its network of allies have not endorsed the legislation favored by the 47-member Voters First coalition and have instead backed alternative legislation calling for 100% public financing for all state offices. That legislation has not gained steam, however, and the differences of opinion within the reform community on the scope of public financing certainly have not stopped legislation backed by the Voters First coalition from advancing.
While the Wisconsin Democracy Campaign and Common Cause in Wisconsin generally have seen eye to eye on the overall makeup of comprehensive reform legislation and have promoted the same bills, strategic differences do exist between the two groups. As mentioned previously, Common Cause has embraced constitutionally dubious prior notification of anticipated issue ad spending for strategic reasons. WDC takes a dim view of the strategy and has sought to steer policymakers toward an approach to issue ad disclosure based on the state’s time-tested practice of contemporaneous reporting. But such disagreements on the details of reform hardly have prevented comprehensive reform legislation from progressing.
In many states, movement on reform bills is measured in inches – getting a piece of legislation introduced or passing a bill out of committee in one house is often as much progress as can be realistically expected in one session. In Wisconsin, both houses of the legislature have passed comprehensive reform bills and the final budget repair compromise included a campaign finance reform plan that was signed into law by the governor. The plan features many of the reform components advocates were pushing for, but was weak tea in other respects and includes a self-destruct mechanism that practically assures the plan will never be allowed to take effect.
The escape route legislative leaders found was in the form of the nonseverability clause that voids the entire law if any part of it is found unconstitutional. (Senator John McCain summed it up best when he said "nonseverability is French for killing campaign finance reform.") And the leaders who cut the deal virtually guaranteed the nonseverability clause would do its dirty work by planting a provision requiring 30 days prior notice of anticipated independent spending by special interest groups. (A similar provision requiring five days prior notice has already been struck down in Florida.)
The reform community’s future challenge will be to capitalize on the political fallout of the corruption scandal and build on the progress that has already been made on campaign finance reform legislation. Both the Senate and the Assembly are now on record in support of 45% public financing of state campaigns. That is notable, especially in the Assembly where Republicans who control the lower house have traditionally been vehemently opposed to the use of any public money for campaigns. And pressure to clean up the system will continue to grow as the corruption investigation yields more criminal charges. What remains is the continuing – and very arduous – task of pinning down lawmakers on reform issues and cutting off their escape routes. That is easier said than done. Wisconsin reformers would do well to remember that current office holders will never be persuaded to change a system that is rigged in their favor, they have to be forced. This premise was articulated more colorfully by one challenger for statewide office who observed that our current crop of elected officials "rode into town on this horse, they're not going to turn around and shoot it."
Several important lessons can be gleaned from past experience in Wisconsin. To seize the opportunity for progress that exists in the state, reformers will need to:
Continue to make the case for reform by documenting campaign finance abuses and the political corruption that is taking root in Wisconsin through painstaking data collection, research and analysis.
Use the data to connect the dots between systemic problems and the actions of specific elected officials. Systems don’t vote to change laws, individual politicians do.
Exercise extreme caution in anointing heroes. The most dangerous opponents of reform are those who are unusually skilled at masquerading as champions.
Take great care to advance reform proposals that are legally sound and responsible.
Be ever mindful of the importance of finding bipartisan common ground.
Expand the reform community by building bridges to groups that may appear on the surface to be unconventional partners but whose interests are adversely affected by the current campaign finance system.
Be patient and thick-skinned. Political reform won’t happen fast and it won’t be won without a fight. The closer reformers get to victory, the more tenacious the resistance they'll face. Reformers can’t afford to flinch now.
For reform efforts to succeed, reformers can’t merely complain about the broken campaign finance system, they need to offer a clearly defined alternative. Once the 2001-2002 session concluded, WDC initiated a "Clean Sweep" campaign aimed at challenging candidates for the legislature and statewide office to take a public stand on 12 detailed features of campaign reform legislation, including the issues of nonseverability and prior notice of planned activities.
The Clean Sweep initiative establishes 12 key tests of legitimacy for future campaign finance reform measures considered in Wisconsin, including:
Spending limits for all state races (for example, $2 million for governor, $100,000 for senate and $50,000 for assembly) that sharply reduce campaign spending in the highest-spending races and level the playing field for all candidates.
Public financing grants equal to at least 45% of the spending limits to candidates who agree to limit their spending.
A guaranteed source of revenue that fully funds the cost of the public financing system and prevents the grants promised to candidates under the law from being prorated or denied.
Matching grants provided directly to candidates who agree to limit their spending but who face opponents who refuse to abide by spending limits or who have independent campaigns run against them by special interest groups. (The campaign reform plan included in the budget repair bill provides funds for matching grants to the state political parties rather than to individual candidates.)
A ban on campaign fundraising by elected state officials during the state budget process and a prohibition on campaign fundraisers in Dane County any time the legislature is in session.
An explicit legal prohibition on "pay to play" activity (trading official action or inaction for campaign donations).
A reduction in the size of allowable campaign contributions.
Disclosure of the identity of groups that run "issue ads" within 60 days of an election that refer to a clearly identified candidate on the ballot in that election, and reporting of the amount spent and the source of money used to pay for the communications for or against the candidate.
Disclosure of issue ads and other forms of independent campaigns based on the established legal tradition in Wisconsin requiring campaign activities to be reported when money is spent or an obligation to spend money is incurred. (The campaign finance plan in the budget repair bill requires prior notice of anticipated activities, which makes it vulnerable to legal attack on the grounds that the reporting requirement amounts to prior restraint of speech.)
Elimination of the partisan legislative campaign committees under the control of legislative leaders.
Elimination of "SuperPACs" by banning transfers of funds from one political action committee (PAC) to another.
At least limited "severability" so that if one element of the bill is found unconstitutional, other reform provisions will remain in effect. (The plan included in the budget repair bill is completely nonseverable; in other words, if one provision is found unconstitutional, the entire law is void.)
All 12 elements of the Clean Sweep campaign finance reform package are bipartisan, having been supported at one time or another in the legislative process by both Democrats and Republicans in both houses.
The Clean Sweep initiative also calls for other political reforms, including changes in the structure of the enforcement agencies overseeing ethics and campaign finance practices, most notably the State Elections Board. The Board is a classic example of the fox guarding the henhouse, with members appointed by the legislative leadership, the governor, the two major political parties and the chief justice of the state Supreme Court. Clean Sweep would transform the Elections Board into a nonpartisan citizen board. This change is a critical piece of the reform puzzle, because any reforms that can be won in Wisconsin will be of little value if the new laws are not enforced.
Other parts of the Clean Sweep package of reforms include the creation of a nonpartisan commission to handle reapportionment of legislative districts, improvements to the state ethics code and lobby law, an independent source of funding for ethics investigations (the state Ethics Board currently has to go to the legislature’s Joint Finance Committee for authorization every time it contemplates an ethics probe), elimination of all staff positions left over from the now-defunct partisan legislative caucus offices, and an end to the use of public funds to pay the legal bills of legislative employees under criminal investigation.
WDC sent a Clean Sweep questionnaire to all candidates for governor, lieutenant governor and state legislature. Over 100 candidates replied, and 52 pledged their support for the entire package of Clean Sweep reforms. But 80% of current office holders refused to respond to the questions.
In an August 22 editorial, the Wisconsin State Journal congratulated the four incumbent lawmakers from south central Wisconsin who "had the guts to answer the WDC’s rather pointed questions." The newspaper also named 18 state senators and representatives from its circulation area who did not reply, saying there are "several reasons these elected officials might have chosen to dodge the WDC questionnaire – none of them valid."
The State Journal noted that candidates "get lots of questionnaires from all kinds of groups – many of which will give the candidates money if they answer the questions the right way. The WDC isn’t one of those groups: It’s a statewide citizens group worried about the corrupting influence of money in politics. There are undoubtedly some questionnaires that candidates can afford to ignore – but not the WDC’s."
In the next legislative session, WDC will seek the introduction and consideration of legislation that mirrors Clean Sweep. And Clean Sweep will be used as a measuring stick to judge the legitimacy of any and all reform proposals the next legislature considers.