GAB Doesn’t Need to be Saved

August 31, 2015

by James Wigderson
Special Guest Perspective for the MacIver Institute

The Milwaukee Journal Sentinel’s editorial board rides to the defense again of the Government Accountability Board. The agency, charged with overseeing the state’s elections, just survived another audit by the Legislative Audit Bureau (LAB). In an editorial, the newspaper declared, “As we suspected, a state audit released last week found no major problems with Wisconsin’s nonpartisan Government Accountability Board, which handles ethics complaints and supervises state elections.”

This follows an article by Scott Bauer of the Associated Press that claimed, “An audit released Thursday looking into how Wisconsin’s nonpartisan elections and ethics board handles complaints found no major problems, leading the panel’s director to say it should put to rest concerns about its operations even as Republicans and Gov. Scott Walker plan major overhauls.”

The editorial also quotes GAB Executive Director Kevin Kennedy, “It puts to rest any questions as to whether the six board members exercise independent judgment when they make decisions about complaints, investigations and penalties.”

Let’s start with the obvious. The recent audit was actually a continuation of another audit concluded in December. The more recent audit was only focused on how the GAB handled complaints. Even then, the audit did not look at the substance of the complaints or their outcomes, only how they were processed.

Claiming the LAB finds no fault with the GAB is like a defense attorney claiming his client, having been found guilty of robbing a bank, did not have a broken taillight on the getaway car. While the latest audit has minor criticisms, the December audit found several violations of state law and staff acting without the direction of the GAB. Somehow no mention of that audit found its way into the editorial defending the GAB.

Even the most recent audit found that staff did not provide the names of three investigators to the GAB when starting an investigation. The GAB also closed down 251 investigations recently because too much time had passed. The audit notes that many of those complaints were related to the recall elections.

The editorial understates how Republicans, “didn’t like the way the agency conducted recall elections in 2011 and 2012, the design of ballots in 2014 year or the GAB’s role in the John Doe investigation.” Certainly Republicans have good reason to be upset that, despite the Journal Sentinel’s dishonest claims, the GAB became a partisan agent for the Democratic Party.

As if Republicans needed more evidence, The Wall Street Journal reported on emails from GAB staff indicating the partisan nature of the John Doe investigations. In one email, GAB staff counsel Shane Falk wrote to Special Prosecutor Francis Schmitz, “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires.”

In another email, Falk expressed concern that the investigation was not helping Democratic candidate for governor Mary Burke,
“If you didn’t want this to have an effect on the election, better check Burke’s new ad,” Mr. Falk continued, “Now you will be calling her a liar. This is a no win.”

Other revelations about Executive Director Kevin Kennedy’s ties to Lois Lerner of the IRS scandal, including recent revelations of Kennedy emailing Lerner at her fake email address, also are very concerning to Wisconsin conservatives. We have also learned how the John Doe investigators wanted to include the IRS in its unconstitutional investigation of Wisconsin conservatives.

It isn’t just the staff that is the problem. In a recent interview, GAB Chairman Judge Gerald Nichols made clear his hostility to the First Amendment right of free speech.

The Milwaukee Journal Sentinel claims, “the GAB has performed its duties well and done its best to hew to a strict nonpartisan line.” That’s just a dishonest statement given the long history of incompetence going back to former Attorney General JB Van Hollen lawsuit to force the GAB to comply with federal law by crosschecking the voter registration database with the driver’s license database.

But what is also missing from the editorial is any admission of a conflict of interest by the Milwaukee Journal Sentinel who has benefitted from leaky John Doe investigations and post-investigation document dumps. Reforming the GAB and the John Doe process will not only protect the First Amendment rights of Wisconsinites wishing to participate in the Democratic process, it might also kill the golden goose that feeds the political gossip pages. The newspaper has been a willing ally of the smear and innuendo campaign against conservatives without having any qualms about the sources of the material. Now that the sources may be directly impacted by the proposed reforms, the newspaper is in a “say anything” mode to protect them.

The Milwaukee Journal Sentinel is correct when they compared reforming the GAB to the failed proposal to alter the state’s open records law. The government is acting to limit participation by the citizens in the political process. However, in the case of the GAB, the Milwaukee Journal Sentinel is on the wrong side.