Republican proposal to gut Wisconsin GAB appears to allow for Republican majorities on seperate elections and ethics commissions

AUTHOR’S NOTE: The author of this blog post is not an attorney and does not claim to be one.


Having read the relevant part of this Republican-backed legislative proposal that, if enacted, would create two new partisan commissions to replace the non-partisan Wisconsin Government Accountability Board (GAB), I can state definitively, that, based on my interpretation of the language of the proposed statute, that Republicans would be effectively guaranteed a 4-2 majority on each of the two replacement commissions with Republican Scott Walker currently in the Wisconsin governor’s office.

In Wisconsin, the GAB is the state-level body that administers elections and handles ethics complaints, among other things. Republicans that control Wisconsin’s state government are moving to replace the officially non-partisan GAB with two separate and officially-partisan state election and ethics commissions.

How the Wisconsin Elections Commission would be selected

Under the Republicans’ proposal, Wisconsin’s state-level elections commission, which would be responsible for state-level administration of Wisconsin’s elections, would consist of six members. Four of the members would be selected by Democratic and Republican state legislative leaders (Assembly Speaker, Assembly Minority Leader, Senate Majority Leader, and Senate Minority Leader getting one appointment each), with no other statutory qualifications that I can find. The other two members would be former county and/or municipal clerks appointed by the governor (currently Scott Walker, a Republican) from a list of six recommendations, with Democratic legislative leaders getting three recommendations and Republican legislative leaders getting three recommendations. There is no explicit statutory requirement that Walker pick one recommendation from each party. Should a political party that does not have a majority or official minority in either house of the state legislature (i.e., a third-party) field a candidate who receives at least 10% of the vote in a Wisconsin gubernatorial election, that party’s chief officer (i.e., state party chairperson) would get to recommend three people to the governor, and the governor would appoint an additional member to the commission from that list.

Current state legislative leaders in Wisconsin that would be responsible for four of the six appointments to the elections commission are as follows:

  • State Assembly Speaker Robin Vos (Republican)
  • State Senate Majority Leader Scott Fitzgerald (Republican)
  • State Assembly Minority Leader Peter Barca (Democratic)
  • State Senate Minority Leader Jennifer Shilling (Democratic)

Here’s what is horrible about the proposed state elections commission:

  • Under this proposal, there is nothing prohibiting state legislative leaders from appointing themselves, other elected officials (up to and including Scott Walker himself), active candidates for public office, lobbyists, and/or campaign donors to the state elections board, with elected officials serving as both an elections board member and an elected official, candidate, lobbyist, and/or campaign donor simultaneously.
  • There doesn’t appear to be a statutory requirement that the  elections commission members be Wisconsinites. In fact, one could even interpret the clause requiring Walker to appoint two former county and/or municipal clerks as allowing Walker to appoint people who formerly served county and/or municipal clerks in other states.
  • The clause authorizing Walker to appoint two former county and/or municipal clerks to the election commission appears to be worded in a manner that would allow Walker to appoint two of the Republican recommendations, instead of one recommendation from each party, as the requirement that “no members of the same political party select, collectively, more than 3 individuals” appears to apply to the list of recommendations for the gubernatorial appointments, not all appointees to the elections commission.

How the Wisconsin Ethics Commission would be selected

Under the Republicans’ proposal, Wisconsin’s state-level ethics commission, which would be responsible for hearing ethics complaints filed against state elected officials (governor, other elected state executives, state legislators, etc.), would, like the elections commission, consist of six members, four selected by state legislative leaders in both major parties and two appointed by the governor from a list of recommendations from state legislative leaders in both major parties. Additionally, should a third-party field a gubernatorial candidate who receives at least 10% of the vote, that party’s Wisconsin state chairperson would get to recommend three people to the governor, and the governor would select one of those to serve as an additional member of the commission. However, there are two main differences in regards to the qualifications of ethics commission members compared to elections commission members. First, for the gubernatorial appointments, there’s no requirement that the appointees be former county and/or municipal clerks. Second, all members of the ethics commission cannot be a lobbyist, an elected official other than a federal elected official, state circuit judge, or state appellate judge, and/or an active candidate for state or local office in Wisconsin.

Here’s what’s horrible about the proposed state ethics commission:

  • Under this proposal, not only are state circuit judges or state appellate judges explicitly allowed to serve on the ethics commission and on the judicial bench simultaneously, there’s no explicit prohibition on federal elected officials, candidates for federal office, or campaign donors from being on the ethics commission, provided that they aren’t lobbyists, active candidates for state or local office in Wisconsin, and/or holders of elected offices other than a federal office, state circuit judgeship, or state appellate judgeship.
  • Like with the elections commission, there’s no statutory requirement that I could find requiring ethics commission members to be Wisconsinites.
  • Like with the elections commission, the clause authorizing Walker to appoint two individuals to the ethics commission appears to be worded in a manner that would allow Walker to appoint two of the Republican recommendations, instead of one recommendation from each party, as the requirement that “no members of the same political party select, collectively, more than 3 individuals” appears to apply to the list of recommendations for the gubernatorial appointments, not all appointees to the elections commission.

Relevant text of legislative proposal (pages 66-69 of proposal)

15.61  (title)  Elections commission; creation.
SECTION 172.  15.61 (1) (a) 1. to 6. of the statutes are created to read:
15.61 (1) (a) 1.  One member appointed by the senate majority leader.
2.  One member appointed by the senate minority leader.
3.  One member appointed by the speaker of the assembly.
4.  One member appointed by the assembly minority leader.
5.  Two members who formerly served as county or municipal clerks and who
are nominated by the governor, with the advice and consent of a majority of the members of the senate confirmed. The governor shall choose the nominees from a list of 6 individuals selected by the senate majority leader, the senate minority leader, the speaker of the assembly, and the assembly minority leader and in such manner that no members of the same political party select, collectively, more than 3 individuals.
6.  For each political party qualifying for a separate ballot under s. 5.62 (1) (b) or (2) whose candidate for governor received at least 10 percent of the vote in the most recent gubernatorial election, one member, nominated by the governor from a list of 3 individuals selected by the chief officer of that political party and with the advice and consent of a majority of the members of the senate confirmed.
SECTION 173.  15.61 (5) of the statutes is created to read:
15.61 (5) (a)  If a vacancy occurs for a member appointed under sub. (1) (a) 1.
to 4., the individual responsible for making the appointment shall appoint a new member no later than 45 days after the date of the vacancy.
(b)  If a vacancy occurs for a member appointed under sub. (1) (a) 5. or 6., a new member shall be selected, nominated, and submitted to the senate for confirmation no later than 45 days after the date of the vacancy.
SECTION 174.  15.62 of the statutes is created to read:
15.62  Ethics commission; creation.  (1) (a)  There is created an ethics
commission consisting of the following members who shall serve for 5−year terms:
1.  One member appointed by the senate majority leader.
2.  One member appointed by the senate minority leader.
3.  One member appointed by the speaker of the assembly.
4.  One member appointed by the assembly minority leader.
5.  Two members, nominated by the governor and with the advice and consent of a majority of the members of the senate confirmed.  The governor shall choose the nominees from a list of 6 individuals, one each selected by the senate majority leader, the senate minority leader, the speaker of the assembly, and the assembly minority leader and in such manner that no members of the same political party select, collectively, more than 3 individuals.
6.  For each political party qualifying for a separate ballot under s. 5.62 (1) (b) or (2) whose candidate for governor received at least 10 percent of the vote in the most recent gubernatorial election, one member, nominated by the governor from a list of 3 individuals selected by the chief officer of that political party and with the advice and consent of a majority of the members of the senate confirmed.
(2)  No member of the commission may hold another office or position that is a state public office or a local public office, as defined in s. 19.42, except the office of circuit judge or court of appeals judge under s. 753.075.
(3)  No member, while serving on the commission, may become a candidate, as defined in s. 11.01 (1), for state office or local office, as defined in s. 5.02.
(4)  No member may be a lobbyist, as defined in s. 13.62 (11), or an employee of a principal, as defined in s. 13.62 (12), except that a member may serve as a circuit judge or court of appeals judge under s. 753.075.
(5) (a)  If a vacancy occurs for a member appointed under sub. (1) (a) 1. to 4., the individual responsible for making the appointment shall appoint a new member no later than 45 days after the date of the vacancy.
(b)  If a vacancy occurs for a member appointed under sub. (1) (a) 5. or 6., a new member shall be selected, nominated, and submitted to the senate for confirmation no later than 45 days after the date of the vacancy.

Conclusion

Not only is the idea of replacing one non-partisan board responsible for administering elections and handling ethics complaints in Wisconsin with two partisan commissions, one for administering elections and another for handling ethics complaints, an inherently awful idea, the two partisan commissions would be guaranteed to be controlled by the Republican Party, based on my interpretation of the wording of proposed legislation. The thought of a single political party having majority control of an state elections commission and a state ethics commission in any state, let alone the state that will probably decide the 2016 presidential election, is absolutely frightening. Republicans could easily use the Wisconsin Elections Commission to change election administration procedures to benefit Republicans, and they could also use the Wisconsin Ethics Commission to wage baseless, Joe McCarthy-style witchhunts against Democrats for purely political reasons.

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