Selective Enforcement And Selective Outrage

The state Elections Board decided yesterday to stick by its August 30 ruling ordering Republican candidate for governor Mark Green to get rid of nearly $468,000 in illegal donations, but punted the question of whether another $775,000 that the state Justice Department and a circuit court judge contend runs afoul of federal law should also be dumped by the Green campaign.

It's pretty obvious that political calculations and public relations implications were behind the Board's reluctance to wade any deeper into the legality of Green's money. The Board's chairman said as much, telling reporters after yesterday's meeting that the controversy over the Board's previous ruling on August 30 "kind of put the kibosh" on efforts to consider any further action.

It's somehow fitting that this latest chapter in the Board's long history of selective enforcement of Wisconsin's campaign finance laws was brought on by the selective outrage expressed by the state's political bosses, radio talk show hosts and letter-to-the-editor writers. Democrats pounced on the rulings that the donations were illegal to make Green out to be a corrupt lawbreaker. Republicans focused instead on the politicking in advance of the Elections Board's August 30 decision to characterize Green as an innocent victim of a rigged process.

In truth, Green is neither a criminal nor a victim. There is no evidence that he willfully set out to break the law. The Elections Board had previously wrongly permitted then-Congressman Tom Barrett to transfer large sums of money he raised in Washington to his campaign for governor in 2002. The Board's legal counsel also evidently gave the Green campaign some very dubious advice that left Green with the impression that he was on the right side of the law.

But how Green responded to later evidence that his money dump was in fact illegal cost him any claim to victimhood. The Democracy Campaign pointed out how the donation from Green's federal campaign committee to his campaign for governor violates Wisconsin's campaign finance laws, and Green didn't dispute the laws we cited, but rather said his donation was really a "conversion" of funds and the law shouldn't apply. When the Elections Board disagreed with this creatively murky interpretation of crystal clear laws and ordered him to divest himself of nearly a half million dollars, Green effectively said "order, schmorder." When state Justice Department attorneys and then a circuit court judge said the Elections Board had actually let Green off easy considering that nearly all of the $1.3 million his federal campaign donated to his state campaign for governor is illegal under federal law, he continued to say in effect "screw the law."

Of course, Green has every legal right to challenge the Elections Board's order and the circuit court judge's decision. But he is not following the customary legal path in exercising that right. Green's legal team clearly has assessed the chances of getting the circuit court ruling reversed on appeal and decided against following the normal route of asking the state appeals court to review the lower court's ruling. Instead, he is doing what lawyers call "forum shopping" – looking for a court that will give him the ruling he wants. His lawyers obviously have decided his best shot is before the state Supreme Court. So he's asking the state's highest court to take "original jurisdiction" over the case; in other words, pretend that Green never went to circuit court to challenge the Elections Board's order and the judge never ruled against Green. He's asking for a do-over, starting fresh with the Supreme Court.

It's already been reported in the media that at least five of the seven state Supreme Court justices have potential conflicts of interest in this case that could be serious enough to require them to recuse themselves. It was not reported that a sixth member of the court – Justice Patience Roggensack – received a $500 donation from Green for Congress on December 12, 2002.