All GAB, No Action

March 26, 2018

By: George Nwanze

There is an old Latin saying “quis custodiet ipsos custodes” or “who will watch the watchers.” This saying has been invoked countless times over the centuries to suggest that to those who great power is conferred, it must be tempered with oversight. In the state of Wisconsin, however, it is not readily apparent who is behind the wheel of the state’s election process. Starting in 2008, Wisconsin sought to venture in a bold new direction in campaign finance law with its creation of a nonpartisan board, the Government Accountability Board (GAB), that would be tasked with regulation of campaign finance in the state. The GAB had its impetus in the 2001 campaign scandal in which staffers in the state legislature impermissibly used state funds to engage in partisan campaigning. In response to this scandal—in which both sides were accused of misappropriation of public funds–the first act of the 2007 legislative session called for the creation of a state agency, a combination of the state’s ethics and election boards, that would be charged with election supervision.

The GAB was given a sweeping mandate, endowed with the ability to both oversee and investigate matters pertaining to elections, campaign finance, lobbying, and the state ethical code. It was far more than a paper tiger. It was also empowered to: 1) administer state elections; and 2) train and educate election officials, lobbyists, and many of the other stakeholders in elections. The GAB was given insulation from the budgetary scrutiny of the Legislature in order to ensure that it could retain a degree of independence and was nonpartisan by statutory mandate. The board was made up of six former judges, to help remove any allegations of a partisan slant or impropriety, who were appointed by the governor to six-year terms and confirmed by the state legislature.

The GAB would go on to receive critical acclaim with many praising the board for being pioneering in its design as well as ambitious in its goals. The GAB oversaw one of the only recall elections in modern history, the Governor Scott Walker 2012 recall election, and later investigated alleged coordination between his campaign and outside conservative groups. Perhaps it was this Icarus-like ambition that destined the board to be burned.

While a great deal of praise was heaped upon the GAB, there were still other who were concerned. Many advocates for less government intervention felt that the centralized nature of the GAB afforded it too much power, without any system for holding it directly accountable to the voters. Some state legislators also worried that the insulation from legislative oversight would permit one party to install a sympathetic board and then use the GAB as a proxy for accomplishing their own political goals. The concerns only intensified after the GAB began its investigation into Scott Walker over whether Walker’s 2012 campaign had illegally coordinated with outside issue advocacy groups. The GAB was accused of political targeting were tossed, and mixed messages from those working in the investigation did not help the GAB articulately state its case.

In early 2016, Governor Walker approved a budget that effectively defunded the ability of the GAB to fulfill its legislative mandate and  dissolved the agency, splitting its duties between two newly created agencies. The new agencies, the Wisconsin Elections Commission and the Wisconsin Ethics Commission are not equipped with any of safeguards that made the GAB such a revolutionary agency. They are subject to legislative oversight, with appointments of citizens made under the auspices of ensuring greater accountability. Critics who were concerned about centralization of power by the GAB, succeeded in having the board’s jurisdiction divided to prevent it from being “weaponized” by partisans.

Many of these changes are made with the stated intent of increasing the transparency of the elections process and letting people know what they are getting with the partisan appointees with clear political leanings. However, as the former GAB Director Kevin Kennedy points out, not much is going to change transparency-wise, hearings still remained closed, only now they are free to act on whatever partisan impulses they see fit Wisconsin has effectively taken the ability to regulate the state’s elections out of the hands of officials who are obligated to remain neutral and placed it into the hands of people who are partisan by profession. This begs the age-old question in election administration: how capable are elected officials of properly passing, enforcing, and interpreting the laws and regulations that they themselves are subject to. The political system is one that relies a great deal on the ability of those in power to self-police and this is a custom that has been given great deference.

From the careful balance of powers written into our constitution at this nation’s inception, to the eventual establishment of the canons of government ethics and campaign finance, great emphasis has always been placed on holding the powerful accountable. However, the definition of insanity is doing the same thing over and over again and expecting a different result. History makes the most compelling case that time after time, in state after state, partisan officials have proven themselves unable of being impartial and judicious parties in the governing of their own affairs. Instead, they frequently have chosen to manipulate the system to their own political advantage or draw very fine lines when it comes to compliance with ethics laws.

The creation of a body like the GAB was a step in the right direction, a message to the nation writ large that Wisconsin was willing to engage in the trailblazing experiment in self-government to place the power of supervision in an agency designed to rise above the fray. Instead, the partisan impulses in the state brought the organization down. The takeaways from this should not be despair though, but rather of an example for what could be a system that works in other states. It turns out that although the inmates may be in charge of the asylum for the moment, that is not always the way things have to be.