Friday, May 31, 2013

All Vessel, No Cargo

I couldn't help but notice how former Governor Jim Doyle made Mike Tate's case for another term as the state Democratic Party's chairman.

Doyle said Tate "has really understood what modern politics is. He has understood the media side, the consultant and polling side of it, the money-raising side of it and the really focused data politics."

Is that really all there is to modern politics?

Doyle went on to say that Tate "has really been able to bring all that together, and he has become a very good leader of people."

Does bringing all that together really amount to leadership?

If political leadership has come to mean nothing more than doing what the consultants and pollsters tell you to do, raising money nonstop, assembling sophisticated digital voter files and spinning the media, then it is all vessel and no cargo.

Wednesday, May 29, 2013

How To Govern Without Public Support

A representative democracy is built on a simple premise: Those who govern need the consent of the governed. Win the most votes, get power. Earn public approval of your actions, stay in power.

That's the way it's supposed to work.

But no politician wants to give up power, so every politician's worst fear is losing an election. That explains the lengths to which politicians will sometimes go to make sure they win elections even when their policies fall out of public favor. In Wisconsin we are witnessing a step-by-step march to nullify the consent of the governed as a condition for governing.

Step One: Manipulate the political boundaries.

Once every decade, congressional and legislative district boundaries are redrawn to take into account population growth and shifts in where people are living. If one party fully controls the government when this task is to be done, there is a seemingly irresistible urge for that party to pack large numbers of its opponent's voters into a few districts and scatter the rest across the many remaining political jurisdictions. That creates an opportunity to win the most seats and hold onto power even when you are unable to win the most votes. That mission was accomplished after the 2010 census by the party in power in Wisconsin through partisan gerrymandering, and produced the desired effect.

Step Two: Suppress the vote.

If some group of citizens is more likely to vote for your opponent, election rules can be manipulated to either put up formidable hurdles that these voters must clear in order to cast a ballot or disenfranchise them altogether. Just such a law was enacted in Wisconsin in 2011, in the name of fighting voter fraud. Thing is, of the few cases of voter fraud Wisconsin has seen, not a single case has involved the one form of fraud this law could possibly prevent. That's the telltale sign that the law really aims to permit governing without the consent of the governed, not combat election fraud.

Before it could work its magic, this law ran into a hurdle of its own, namely the language in Wisconsin's Constitution spelling out the right to vote. New legislation has been drafted in hopes of working around this pesky constitutional obstacle and re-erecting the barrier to voting, while restricting early voting to boot.

Step Three: Rig the money game.

In addition to making it harder for some to vote, the legislation also opens the door to more campaign contributions from lobbyists. The bill, which might as well be called the "Govern Without Public Support Act," also removes language from state law that was put there in 1905 banning corporate election spending. That law was rendered unenforceable for the time being by the 2010 U.S. Supreme Court decision in the Citizens United case. But no ruling this unpopular with the people will stand the test of time.

With the party currently in power in Wisconsin overwhelmingly advantaged by corporate election spending, that party's desire to cement the legalization of this kind of electioneering is understandable. Just as it was understandable that the party in power rammed through a law in 2011 that caused the opposition party's biggest financial supporter, the state teachers union, to scale back its campaign contributions from $2.3 million for the 2010 elections to just over $946,000 for the 2012 elections.

When Citizens United finally succumbs to public opinion and is overturned, the party in power doesn't want a law on the books prohibiting corporate election spending that can once again be enforced. Again, that would breathe new life into all that consent of the governed business.

Step Four: Conceal the money power.

When politicians are trying to rig the rules to enable them to win elections even when they are losing public support, the last thing they want is for people to be able to readily see how they are doing it. That's why the Govern Without Public Support Act also assaults disclosure of campaign finances. It writes the "magic words" loophole into state law and nullifies disclosure rules approved in 2010 by the state Government Accountability Board. Meaning that interest groups would have state law's blessing to keep the public in the dark about who's paying for campaign advertising aimed at influencing state elections. Avoid using words like "vote for" or "vote against" in political ads, keep the money secret.

This legislation needs to be seen for what it is and what it would do . . . the next phase of an all-out assault on democracy being waged on multiple fronts to subvert the idea that those who govern can do so only with the consent of the governed.

Tuesday, May 21, 2013

Say It Ain't So, PBS

An eye-opening article in New Yorker magazine tells the story of how public television backed away from its commitment to fund a new documentary film titled "Citizen Koch." Readers learn that the politically meddlesome billionaire David Koch has given public television $23 million, and don't have to read between many lines to come to the understanding that public television cooled on the project in hopes of appeasing Koch.

It's always galling to see a news organization compromise its journalistic principles in the face of financial or political pressures. It's especially painful when you consider that the plan was to air the film on the PBS program "Independent Lens."


I know "Citizen Koch" well. I was interviewed at length for the project and appear in the film. It made its debut at the Sundance Film Festival in Utah at the beginning of the year and got its first screening in our state at last month's Wisconsin Film Festival.

With public television pulling out, the movie's producers have to find other ways to bring it to audiences. That's where you come in. You can watch the trailer and organize a screening in your community. While you're at it, you might consider contacting the PBS ombudsman who is billed as "as an independent internal critic within PBS (who) reviews commentary and criticism from viewers and seeks to ensure that PBS upholds its own standards of editorial integrity."

Thursday, May 09, 2013

It's Time For GAB To Reconsider Surrender

Wisconsin's campaign finance disclosure system once was the envy of the nation but now leaves a great deal to be desired. That sad reality came into sharp focus with the recent revelation that a private school voucher advocacy group, the American Federation for Children, told its members and funders that it spent close to $2.4 million last year to influence elections in Wisconsin after reporting less than $345,000 in campaign spending to state election authorities.

That hidden $2 million only came to light because of an enterprising news reporter, and now is the subject of a formal complaint seeking an investigation and enforcement of existing disclosure rules. The American Federation for Children was able to hide that electioneering because of a decision made nearly three years ago by Wisconsin's Government Accountability Board.

In March 2010, the GAB unanimously approved an amendment to the state's disclosure rules closing the very loophole AFC exploited last year to keep nearly all of its election spending a secret. The new rules took effect on August 1 of that same year. They remained in effect for nine days. Interest groups on both the left and the right sued the GAB in three different courts. Before any judge ruled on the cases, the GAB surrendered on August 10, agreeing not to enforce key parts of the new rules.

The decision looked like capitulation at the time, but the GAB insisted that under the agreement it still would be able to "require disclosure of the identity of those sponsoring communications that are susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate. Such ads do not need to say 'vote for' or 'support' to be subject to regulation."

Time has told. The GAB has not acted on that ability. Since 2010, not a single group I am familiar with that sponsored messages plainly aiming to elect or defeat candidates but masquerading as "issue ads" has been required to come clean and disclose their election activity, not even in a case where a group ends up admitting publicly that its so-called issue advocacy was really intended to get its favored candidates elected.

It is clear that the GAB is not doing what it said back in 2010 it would be able to do. And the American Federation for Children revelation makes it equally clear it is time for the board to take down the white flag of surrender and start enforcing its disclosure rules in their entirety.

If the GAB does that, it will be sued again. Interest groups on the left and the right will again argue the rules are invalid because the board lacked the authority to make them. They'll say only the Legislature can close the issue ad loophole. There are two problems with this argument. First, state law says interest groups that spend money for a "political purpose" are subject to registration and reporting requirements under the law and the Legislature's own attorneys said the GAB has the authority to define what "political purpose" means. Second, Wisconsin's elections board has always defined what constitutes a political purpose and these interest groups never challenged the board's authority when past definitions were to their liking. It's only when the definition threatened to cramp their style that they questioned the GAB's rulemaking authority.

The special interests also will challenge the constitutionality of the GAB's disclosure rules. The board is on solid ground here as well. In FEC v. Wisconsin Right to Life, with Chief Justice John Roberts writing for the majority, the U.S. Supreme Court ruled that disclosure can be required if an ad is the "functional equivalent" of advocacy for or against a candidate. Roberts went on to explain what he meant by "functional equivalent," namely advocacy that is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The GAB borrowed his definition for the 2010 amendment to Wisconsin's disclosure rules.

In Citizens United v. FEC, eight of the nine justices on the nation's highest court again came down squarely in favor of disclosure and again upheld Roberts' functional-equivalent test.

Ads like those sponsored by the American Federation for Children clearly meet that test. Groups engaging in such electioneering should have to fully reveal their activities. The Government Accountability Board has the authority and the power and the legal grounds to make that happen, if not the nerve.

It is time for the GAB to summon the nerve.

Tuesday, May 07, 2013

Closed Loophole Remains Open

More than three years ago, the retired judges who serve on the state Government Accountability Board acted unanimously to close a gaping loophole in Wisconsin's disclosure rules for election campaigning  putting a stop to the phony "issue ad" gambit employed by interest groups that involves careful avoidance of what have come to be known as the "magic words" of election advocacy in order to sidestep disclosure requirements.

Or so they thought.

As Milwaukee Journal Sentinel reporter Dan Bice's recent story about hidden election spending by a national group pushing school privatization makes clear, the issue ad loophole the GAB closed is still very much open . . . and coming in quite handy to groups like the pro-voucher American Federation for Children, thank you very much.

Say what? How can a closed loophole be open?

The GAB's amendment to Wisconsin's campaign finance disclosure rules is on the books, sure enough. But it's not being enforced.

It's hard to fathom why that is. After all, the amended rule's language was taken directly from a 2007 U.S. Supreme Court ruling that said it's not necessary for an ad to contain magic words like "vote for," "vote against," "elect" or "defeat" to be subject to disclosure requirements. The majority opinion written by Chief Justice John Roberts said groups sponsoring ads amounting to the "functional equivalent" of advocacy for or against a candidate also could be required to disclose their spending and funding sources. Roberts went on to spell out what "functional equivalent" means. The GAB applied Roberts' test to the new disclosure rules for Wisconsin.

Then, while ruling in favor of unlimited election spending in the Citizens United case in 2010, eight of the nine U.S. Supreme Court justices again came down squarely in favor of disclosure of the kind of activity the American Federation for Children engaged in last year. Only Clarence Thomas disagreed.

Yet, as Bice reported, the American Federation for Children told its members and funders that it spent $2.4 million influencing Wisconsin elections in 2012, but only reported about $345,000 worth of spending to state election authorities. In reporting on the complaint the Democracy Campaign filed against AFC, Bice wrote the "difference in what the federation disclosed is due to so-called issue ads that were run by the federation during the 2012 election. Groups are not required to say how much they spend on these types of TV and radio spots...."

Actually, they are required to say. Wisconsin's disclosure rules require them to say. And the highest court in the land has made it very clear these kinds of disclosure requirements are legally valid and constitutionally sound.

But more than three years after those judges who make up the Government Accountability Board acted unanimously to establish the new rules for electioneering disclosure, the agency still is not enforcing them.

So the issue ad hoax continues.