By David Gordon, associate editor
Chippewa Valley Post
The state Legislature’s decision to do away with Wisconsin’s Government Accountability Board (GAB) is nothing other than “a public lynching,” in the opinion of Judge Thomas Barland.
Barland, a retired Eau Claire County Circuit Court Judge and a six-year member of the GAB, strongly criticized the Legislature’s action in a recent interview with the Chippewa Valley Post.
“It’s a great step backwards for the state,” he said, and added that the changes will be very hard to undo. That would require “the electorate as a whole to come to an understanding that what was done was wrong,” he said.
Both houses of the Legislature have approved a bill to replace the GAB with two separate bodies, effective next June 30. The Ethics Commission will oversee campaign finance, ethics and lobby law compliance while the Elections Commission will oversee all state elections. The bill now goes to Gov. Scott Walker for his signature, which is almost a certainty.
Barland said his “public lynching” comment referred both to the recurrent attacks on the GAB by members of the Republican majority in the Legislature, and to the actual destruction of the Board.
Some Background
The Legislature, with strong bipartisan support, established the GAB in 2007 by merging the State Elections Board and the State Ethics Board – the exact opposite of its current action. The move followed a series of scandals involving staff workers for each party caucus doing political campaign work on state time. This resulted in the prosecution and conviction of five legislators – from both parties – as well as several legislative staffers.
Six retired nonpartisan circuit judges make up the GAB’s current membership. They were nominated by a committee composed of one judge from each of the state’s four appeals court districts, and appointed by the governor. The board’s “nonpartisan structure, and the process for selecting its board members is unique in the United States,” according to the GAB’s website.
By contrast, the members of the Ethics and Elections Commissions will be appointed by the legislative leadership of both parties and the governor, assumedly from a pool of party loyalists. Two members of the Elections Commission must be former county or municipal clerks and two of the Ethics Commission members must be former state judges. That last requirement was added in the state Senate to pick up the votes of several Republican senators who otherwise threatened to vote against the bill.
Barland dismissed the addition of two retired judges to the Ethics Commission as having little significance. He said that the new structure is no better than what existed prior to 2007, when the split partisan membership produced an impasse on many matters that came to a vote.
Barland said the six current GAB members have varied political backgrounds with both Democrats and Republicans represented. Barland himself was elected to three terms in the Assembly in the 1960s as a Republican and the Board’s current chair, Judge Gerald Nichol, was elected Dane County district attorney as a Republican in 1970. Judge Harold Froelich served 10 years in the Assembly as a Republican, including two terms as Assembly Speaker and one as minority leader, as well as a two-year stint in the U.S. House of Representatives.
Barland also noted that he was appointed to the GAB by former Gov. Jim Doyle, a Democrat, and is the only current Board member who was not appointed by Walker.
Barland, who retired as an Eau Claire County circuit judge in 2000 after 33 years on the bench, served as GAB chair in 2011 and 2014 before officially completing his six-year term in May. He did not seek reappointment to the Board this year but, by statute, remains a member because the governor has not nominated a successor. Since the GAB will go out of existence at the end of June, it’s unlikely that Walker will appoint a replacement, but Barland said he’s thinking seriously of resigning anyway.
He said he will attend the GAB’s next scheduled meeting in mid-December but may submit his resignation early in 2016. Barland said one other GAB member is also thinking of resigning, which could create some problems in regard to preparations for the 2016 spring and fall elections.
By law, the GAB is prohibited from taking any action unless four of its six members vote in favor of that action. Until it goes out of existence at the end of June, the Board is responsible for such pre-election steps as training clerks, designing the ballots and approving any requests to replace old voting machines – “a lot if detail work,” some of which may not get done, Barland said.
If the Board is reduced to four members for the first half of 2016, any one of those four could block any action simply by not voting, he noted.
The transition to the two new commissions could conceivably be smoothed by a Senate amendment to the original bill that enables the governor and the party leadership in the Legislature to appoint members to serve on the GAB in a nonvoting capacity, starting on Feb. 1, 2016. More information about the legislation as passed by the Assembly and amended by the Senate may be found at https://docs.legis.wisconsin.gov/2015/related/lcamendmemo/ab388.pdf.
Differing Opinions
Rep. Dean Knudson (R-Hudson), the lead sponsor on the original Assembly bill, has called the GAB a “colossal failure” and said that it was “a stain on Wisconsin’s reputation for clean and open government.”
Asked to comment on this, Barland responded that Knudson’s statement was “part of the rhetoric of a public lynching. It’s hyperbole and I totally disagree with his comment.”
Barland traces some of the opposition to the GAB back more than six years. He noted that when he was nominated to the GAB in 2009, he met with as many state senators as he could, since Senate confirmation technically is required for nominees. (Barland, however, is the only current GAB member who has received Senate confirmation.)
Barland said that when he met with Sen. Scott Fitzgerald (R-Juneau), now the Senate Majority Leader, Fitzgerald argued that the GAB should not be overseeing legislative ethics questions because its members had no legislative experience and therefore didn’t understand the issues. Barland noted in the interview that he had mentioned his own legislative experience to Fitzgerald at the start of that conversation.
Why the Opposition?
Barland said that the Republicans’ desire to dismantle the GAB stems mainly from two things: the John Doe investigation into whether Walker’s 2012 recall election campaign coordinated illegally with outside conservative groups; and the GAB’s inability to circumvent state law and hold all of the 2011 Senate recall elections on the same day, as Senate Republicans preferred.
He said that, as 2011 chair of the GAB, he asked the Board’s staff if it would be possible to hold all of the recall elections on the same day. He said he was told that, because the recall petitions were filed on different dates, state law required that the elections be on different dates. Barland added that the Board also went against the Republicans’ wishes when it decided that recall voting should be based on the election district lines as they existed when the senators were elected rather than using new boundaries established in the redistricting process.
There have also been GOP charges that the GAB’s staff was inappropriately involved in the John Doe investigation without proper authorization by the Board. In response, Nichol – the GAB chair for 2015 – wrote in an early 2015 public letter to Assembly Speaker Robin Vos (R-Rochester) that “all of the Board Members have been closely involved in overseeing all of the staff’s investigative activities.”
He added that “the staff has taken no action in these matters without the Board’s full knowledge and prior approval” and that “it is simply not true that Board staff has done things ‘their own way’ without consulting the Board and carrying out its directions.” Nichol noted that, collectively, the six members of the GAB “have more than 120 years of experience as nonpartisan Circuit Court judges, so we do not undertake investigations lightly, and do not participate in fishing expeditions or partisan witch hunts.”
Winding Down
Barland said he has been told by Kevin Kennedy, the GAB’s director and general counsel, that there are some ethics complaints pending against current state legislators. However, because the Board will be in a lame duck status as soon as Walker approves the bill, it will have neither the resources nor the time to pursue the complaints and is “toothless at the moment,” Barland said.
As his time on the GAB winds down, Barland said that “on the whole, it was a good experience, up until my final year.” That year saw the release last December of an audit of the GAB’s performance by the Legislative Audit Bureau, which criticized the Board and its staff on several counts in regard to the 150 duties assigned to it by statute. The Audit Bureau later revised some items in its original report on the basis of the GAB’s responses.
Barland said that the GAB’s enemies, particularly in the Assembly, “distorted badly the audit findings” in what proved to be a successful effort to kill the GAB. He said that the only hope of keeping the Board in existence lay with the Senate but “enormous pressure was brought on the Republican senators” who were wavering.
In addition to insisting on the Senate amendments that met some of their concerns, those senators faced “a lot of political pressure” both from constituents who were mobilized to express opposition to the GAB, and from sources of political funding, Barland said.
He expressed some surprise at the number of people who have talked to him about the GAB and the effort to dismantle it. Those conversations have been with Eau Claire area residents from across the spectrum of occupations, social status and – to some degree – political ideology, he said, and added that there apparently is “considerable voter concern” here about the Board’s fate, including some expressed by people whom Barland referred to as staunch Republicans.
Barland noted that the court proceedings that have arisen from the John Doe investigation are proving to be costly to Wisconsin taxpayers. And, as he said in an earlier interview last May, those proceedings are also “extremely puzzling and complex to those both on the outside and the inside” and are “going to go on long after I go off the GAB.”