While Wisconsin voters tracked the doomed presidential ambitions of Republican Gov. Scott Walker this summer, legislators in Madison brawled over changes that Walker and his allies had proposed to the state’s open records law.
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As a parched summer gave way to September in the state’s leafy capital on five lakes, the town was buzzing over news that weeks earlier, Republican Assembly Speaker Robin Vos had begun work to draft a bill that would exempt the Legislature’s two houses from the state’s records law. The draft would allow lawmakers to write their own rules governing whether their emails, memos and other documents, all currently considered public, would instead be shielded from view.
The move came to light only after a liberal advocacy group released emails about the plan that it obtained through a public records request. And the Vos effort came just weeks after a failed attempt by Republican leaders to add to a budget bill even broader exemptions from the open records law.
Immediately after the draft surfaced, Vos held a news conference to say his office had abandoned the effort for this session. "We're not changing the open records law,” Vos said.
But transparency advocates saw something more sinister. “I think what is happening is an aberration, and a major departure from past Wisconsin tradition,” said Bill Lueders, president of the Wisconsin Freedom of Information Council, a nonprofit advocacy group. “What we are seeing, for the first time in my experience, is the emergence of a culture of contempt for the public's right to know.”
The differences of opinion in the Badger State go beyond public records. Almost from the day Walker took office in 2011, the Republican-controlled Legislature has waged war on Wisconsin’s Government Accountability Board — the latest iteration of a state ethics watchdog. The governor also led a successful push to strip most public employees of their collective bargaining rights.
All of this has contributed to Wisconsin earning a score of 64, or a D, placing it 20th among 50 in the State Integrity Investigation, a data-driven assessment of state government accountability and transparency by the Center for Public Integrity and Global Integrity.
Over the past few weeks, both houses of the Legislature have also approved sweeping changes to the state's campaign finance laws and a bill that would dismantle the Government Accountability Board by splitting it into two agencies, though the Assembly must now approve versions of the bills passed by the Senate. Last month, Walker signed a law that prohibits prosecutors from using a form of secret investigation — known as a John Doe — to probe allegations of public corruption. None of the recent moves factor into Wisconsin's D grade because they came after the project's study period had ended.
Wisconsin earned a grade of C- in 2012, when the State Integrity Investigation was first carried out. The two scores are not directly comparable, however, due to changes made to improve and update the project and methodology, such as eliminating the category for redistricting, a process that generally occurs only once every 10 years.
The report also found that Wisconsin has a significant "enforcement gap," which measures the difference between the laws on the books and how well they’re actually implemented.
Laurel Patrick, a spokeswoman for Walker, said in an email that while she couldn’t comment on the new scores without seeing all the data behind them, “the governor is committed to ensuring state government is transparent and accountable to the public.” Laurel pointed to a new website that publishes spending data for state agencies and the Legislature as evidence that “Walker and his administration have a proven record of implementing common-sense reforms and policies to promote transparency in state government while also working to streamline state government.”
Late night moves on open records
Wisconsin's open records laws have remained generally untouched since 1981 — well before widespread Internet use, emailing, and text messaging; experts insist an update is in order. But advocates for reform say the latest proposals look more like gutting than revising.
In the wee hours of an early July night, as the Republican-controlled Joint Finance Committee prepared to pass a budget bill, committee co-chairs John Nygren and Alberta Darling, after a request from Walker and his staff, slipped in language that could have eviscerated the open records law. The wording exempted from public disclosure any documents used during the “deliberative process” by the governor, lawmakers and other state and local government officials. Effectively, it could have been used to shield opinions, analyses, briefings, correspondence about drafts and any notes that lawmakers or their staff created in the process of drafting a bill.
There had been no public input on the proposal, which most people learned of the next morning, only after the committee approved the budget bill.
The move sparked outrage among the public and many political leaders. Within 24 hours, Republican Attorney General Brad Schimel criticized the plan. "Transparency is the cornerstone of democracy and the provisions in the Budget Bill limiting access to public records move Wisconsin in the wrong direction," Schimel said. Even some Republican lawmakers denounced the move. “I will not support a budget that includes this assault on democracy," Republican state Sen. Robert Cowles told reporters the next day.
Republican leaders backed off two days after introducing the change and withdrew the language from the budget bill. But as became clear in September, that was just the beginning of the fight. In secret, Vos, the assembly speaker, had begun devising a draft bill that would exempt legislators and their staff from the open records law.
While Vos said later he had abandoned the proposal, his statement left the door open for future changes. “It is not our goal to make any changes this session,” he said.
Wisconsin was one of many states to receive a failing grade from the State Integrity Investigation in the category of access to information.
Attack on an ethics watchdog
Ethics enforcement has also been a battleground. Back in 2002, five lawmakers were charged with illegally running political campaigns out of their state offices in what became known as the “caucus scandal.” All five were eventually convicted or pleaded guilty, and the fallout led lawmakers in 2007 to merge a largely ineffective state Ethics Board with the State Elections Board to create the Government Accountability Board.
The six-member board — all retired state judges — was charged with administering and enforcing Wisconsin law on campaign finance, elections, ethics and lobbying. But over the past three years, the board has been dragged into an ongoing, bitter partisan fight between Walker and the state’s Democrats. It started when local prosecutors initiated a secret investigation — using the John Doe system that Walker and the Legislature have since prohibited — into whether the governor and his allies had coordinated with independent political groups in 2012, in violation of campaign finance laws. Conservatives argued that no law had been broken, and the matter ended up before the state Supreme Court. The Wall Street Journal later reported that a staff counsel for the accountability board pushed an unsuccessful plan to force some conservative justices to recuse themselves from deciding on the Walker probe. Republicans charged that board staff members had taken sides.
In July, the Supreme Court ruled 4-2 in favor of Walker, finding that no laws were broken, in part because the state's campaign finance laws were "unconstitutionally overbroad and vague," and ordering the investigation to be closed.
Though Walker won out, state Republicans remained livid over allegations of the board's interference. Walker has called for the nonpartisan watchdog agency to be dismantled, and the Legislature is poised to do just that. Both houses have passed bills that would split the board back into two entities comprised of partisan appointments. The Assembly is slated to meet later this month to consider changes made by the Senate.
Campaign finance laws in tumult
As the campaign finance oversight agency has struggled, a series of federal court rulings has also challenged and undermined the laws it is charged with overseeing, forcing the board to back off enforcement of several campaign contribution restrictions. In addition, Walker’s budget bill in 2011 eliminated a state program for public campaign financing.
Since 2010, courts have struck down the state’s limits on how much corporations can spend to support and recruit for their political action committees — which had been capped at either $20,000 or 20 percent of the amount the committee had raised the previous year, whichever was greater — as well as the state’s “aggregate limits” on contributions — a cap on the total amount that an individual could contribute to all candidates and committees, once set at $10,000 per year.
The result has been a series of decisions by the accountability board to effectively cease enforcing many of the state’s limits on campaign contributions.
At a hearing last spring on legislative plans to rework the state’s campaign finance law, Jay Heck, executive director of Common Cause in Wisconsin, an advocacy group, said both sides view the shifting legal environment as an opportunity. His organization wanted “to strengthen our once effective and widely admired campaign finance laws and return Wisconsin elections and state government to the citizens,” while others wanted to “deregulate” campaign financing in the state.
Lawmakers are now tweaking a rewrite of campaign finance law that, among other changes, would allow candidates and independent political groups to coordinate their operations under certain conditions — potentially legalizing the same practices that were the subject of the secret investigation into Walker's campaign. Both houses have approved versions of the changes, and the Assembly is expected to take up the Senate version when it meets later this month.
With Walker back in Wisconsin full time after ending his presidential run, he has refocused on his proposals — and added major changes to Wisconsin’s historic civil service system to his agenda. Partisan battles are a way of life in Madison.
This story is part of State Integrity 2015. How do each state's laws and practices deter corruption, promote transparency and enforce accountability?. Click here to read more stories in this investigation.