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“Political System Owned Outright By The Wealthy”: In A Citizens United World, We Should At Least Know Who Is Buying Our Politicians

In 1899, an ultra-wealthy Montana copper magnate named William Clark wanted to be one of the state’s U.S. senators. In those days, senators were elected by state legislatures, so Clark tried a straightforward tactic: mass bribery. He gave $10,000 to every legislator who would take it, which worked like a charm. Unfortunately for Clark, the Senate got wind of this, and refused to seat him. He resigned, though he tried again without the overt bribery and won in 1901, when he served a full term.

Mark Twain wrote of Sen. Clark: “He is said to have bought legislatures and judges as other men buy food and raiment. By his example he has so excused and so sweetened corruption that in Montana it no longer has an offensive smell. His history is known to everybody; he is as rotten a human being as can be found anywhere under the flag…”

Such stories inspired some of the original reforms against organized money in politics. Indeed, Clark was almost singlehandedly responsible for the direct elections of senators.

But we should not be too self-righteous when it comes to poor old William Clark. Not only is the problem of political corruption fast returning to its Gilded Age nadir, in some respects it is actually worse than in Twain’s day. Then as now, our political system is essentially owned outright by the wealthy. But today we have allowed them to hide their identities behind legal chicanery.

Removing the money from politics altogether is a worthy goal. But until then, simple transparency about who is buying which politician would be an excellent stopgap measure.

It was Supreme Court Justice Anthony Kennedy who wrote the Citizens United decision, which abolished limits on independent political spending by unions and corporations and sparked a stupendous growth in shadowy nonprofits allied with various parties and candidates. The decision’s most famous line is this: “Independent expenditures do not lead to, or create the appearance of, quid pro quo corruption.”

I would like to direct Justice Kennedy’s attention to this story by Michael Isikoff, about a Wisconsin hardware store magnate named John Menard, Jr. When Menard wanted to help Gov. Scott Walker (R) defeat a hard-fought recall attempt in 2012, post-Citizens United groups were a handy weapon of choice — especially 501(c)(4) nonprofits, which do not have to disclose their donors:

He wrote more than $1.5 million in checks to a pro-Walker political advocacy group that pledged to keep its donors secret, three sources directly familiar with the transactions told Yahoo News.

Menard’s previously unreported six-figure contributions to the Wisconsin Club for Growth…seem to have paid off for the businessman and his company. In the past two years, Menard’s company has been awarded up to $1.8 million in special tax credits from a state economic development corporation that Walker chairs, according to state records. [Yahoo News]

According to Isikoff, Menard has also benefited from regulatory laxity under the Walker regime — the Wisconsin government had previously levied stiff fines against him and his company for “illegally dumping hazardous waste.” In a telling coincidence, an old William Clark mining site is now one of the biggest contaminated Superfund sites in the country.

These documents were obtained as part of a state investigation into whether Walker’s campaign committee actually violated the few remaining stipulations of campaign finance law. But this says more about the carelessness and arrogance of these people than the laws themselves — it is pitifully easy to do an end-run around disclosure or non-coordination requirements.

Justice Kennedy’s assertion that a tsunami of corporate money cannot even create the appearance of corruption is so preposterous it surely has to be willful ignorance. Nevertheless, I defy him to argue with a straight face that Isikoff’s story is not the foulest of quid pro quo corruption.

And even if he can manage that, it is utterly indefensible for the ultra-wealthy to purchase state governments whole without disclosing who is doing the purchasing. An email sent to Walker by one of his aides stressed the importance of secrecy to the scheme: “Stress that donations to WiCFG [Wisconsin Club for Growth] are not disclosed and can accept corporate donations without limits… Let them know you can accept corporate contributions and it is not reported.”

So if the conservative majority on the Supreme Court insists on government of the rich, by the rich, and for the rich, there’s precious little the citizenry can do about it. But can we proles at least know which plutocrat deserves our cringing deference?

 

By: Ryan Cooper, The Week, March 26, 2015

March 27, 2015 Posted by | Campaign Financing, Citizens United, Scott Walker | , , , , , , | 2 Comments

“Rigging The Rules”: Scott Walker’s War On Good Government

Here’s a good government rule of thumb: foxes ought not guard the henhouse. When self-interested politicians rig the rules to protect themselves against independent scrutiny, citizens have a reason to be concerned.  Common sense tells us that any politician – especially one with White House dreams like Wisconsin’s Governor Scott Walker – should know that undermining an independent government agency sure makes it look like you’ve got something to hide.

Gov. Walker gained office – and won reelection last fall – by casting himself as a conservative reformer. His zeal for cutting budgets and bashing unions has made him popular on the right. Following a reportedly “strong performance” at Iowa’s Freedom Summit, sponsored by Citizens United, the same organization that brought you unlimited and unaccountable secret money in politics through its infamous Supreme Court case, Gov. Walker filed paperwork last week to set up a 527 political organization, “Our American Revival,” to explore a run for President in 2016.

This first move towards a presidential run is sure to bring Walker plenty of attention from reporters and Republican activists. Yet it seems Walker’s dreams for the Oval Office might lead him, or allies helping to position him, to interfere with an independent investigation into his campaigns. Walker’s loyalists are attempting to defund, undermine, and destroy Wisconsin’s Government Accountability Board (GAB), an independent investigative agency, which enforces ethics, campaign finance, and election laws. It’s an agency that investigated alleged illegal campaign finance violations that plagued Walker’s 2012 recall election.

Top election law experts around the country call Wisconsin’s GAB, “America’s Top Model” of agencies charged with administering state elections.  Most modern democracies around the world have independent election overseers to avoid partisan hacks writing election rules to favor their party. Unfortunately, impartial election boards are not common in American democracy yet.  Wisconsin’s GAB is the gold standard, and is watched closely by reformers eager to modernize our political system so that voters set the rules for politicians, instead of politicians writing rules for themselves.

The GAB was created in 2007 with virtually unanimous, bipartisan support in the state legislature. It replaced a collection of ineffective, partisan state elections and ethics boards.  By law, six retired judges make up the board. They are selected in a deliberate, three-part process to ensure that they’re non-partisan and politically impartial. A key provision of the law blocks legislative appropriators from meddling in the agency’s investigations.

Allies of Gov. Walker are unhappy because in 2012 the GAB voted unanimously to investigate possible illegal coordination between the governor’s recall campaign and two outside special interest groups, Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce. Those organizations spent millions of dollars on Walker’s behalf in the recall election.   The GAB also cooperated and pooled resources with another probe, “John Doe II,” led by Republican and Democratic District Attorneys and a Republican Special Prosecutor.

The John Doe investigators considered potential criminal charges of illegal coordination between Wisconsin Club for Growth and other groups with the Walker campaign during the 2012 recall elections. The John Doe process in Wisconsin is similar to a grand jury investigation – it’s largely secret and permits grants of immunity from prosecution to witnesses in exchange for their testimony.

Some of Gov. Walker’s political allies want to eviscerate the GAB. Others are trying to gut longstanding campaign finance protections. Wisconsin Club for Growth has filed a lawsuit against the GAB, claiming that it lacked power to investigate the possible illegal campaign coordination. Another lawsuit implies that anti-coordination rules, designed to prevent circumvention of contribution limits, impinge on free speech.

Meanwhile, the GAB also is facing legislative attacks.  The legislature has cut GAB funding in the last three state budgets and launched an audit of the agency in an attempt to embarrass and undermine it.  Most recently—and alarmingly – Wisconsin’s speaker of the assembly and the senate majority leader, both Republicans, have pledged an ill-advised effort to ram through legislation adding partisan appointments to the nonpartisan panel of retired judges, or replace it altogether with partisans.

Either move would destroy the agency’s independence and ability to hold Wisconsin’s government accountable.  To date, the ongoing John Doe investigation (now enjoined by a federal court) has not produced charges against Gov. Walker or his campaign.  But if the governor allows allies in the Legislature to eviscerate an independent state agency that voted unanimously to investigate his past campaign, he will face plenty of questions about his role in the debacle that may turn his White House dream into a nightmare.

 

By: Karen Hobert Flynn, The Daily Beast, February 10, 2015

February 11, 2015 Posted by | Scott Walker, Wisconsin Legislature, Wisconsin Republicans | , , , , , , | Leave a comment

“Cheese Head Guv’s Sleazy Past”: Scott Walker, One Of The Most Divisive Governors In The Country

Tens of thousands of protesters make for much better television than court documents, but that doesn’t mean we shouldn’t be paying attention to Scott Walker’s scandal-plagued re-election bid this year—even if it is unaccompanied by the hoopla of his 2012 recall election. In that year, Walker was able to best a weak Democratic candidate in an election where some voters backed him because of concerns about whether a recall was appropriate, and not because they supported his union-busting legislation.

This year, the most recent poll has Walker trailing the Democratic nominee, Mary Burke, by two percentage points among likely voters, and the embattled GOP incumbent has faced new allegations that he illegally coordinated outside spending during his recall election with groups like the Wisconsin Club for Growth. But while the 2012 recall excited liberals across the country (it seemed at times during that election that MSNBC’s Ed Schultz had moved to the Badger State), this year liberals can barely muster a shrug.

Part of this ennui, as Noam Scheiber at The New Republic points out, is that it’s not in anyone’s interest to make a big deal about Walker, despite the fact that he might be running for president in a couple years. After losing to him in 2012, liberals have a kind of political PTSD when it comes to Wisconsin, and are afraid of raising the stakes in the campaign.

Plus, Burke is a relatively moderate former business executive, which makes her a good candidate for a general election, but not exactly the best one to excite the progressive base. And without shots of hordes of protesters like the kind that swarmed the state capital in Madison two years ago, the campaign becomes far less compelling for television, and is thus unlikely to receive much national coverage.

The outrage that Walker is provoking is of a less exciting variety this time around. In 2012, there were teachers and small-town government workers made furious by Walker’s efforts to quash collective bargaining rights for public employees. In 2014, however, there is far less uproar over Walker potentially violating campaign finance laws to encourage corporations to give unlimited donations to the Wisconsin Club for Growth—and only the Wisconsin Club for Growth. In an email to a consultant for that group who also served as an adviser to the governor in 2011, a Walker aide emphasized that the incumbent wanted “all the issue advocacy efforts run thru one group to ensure correct messaging.”

These efforts are further illustrated in an email that Kelly Rindfleisch, a former Walker aide, sent the governor before a fundraising trip in 2011, which told him to “stress that donations to [Wisconsin Club for Growth] are not disclosed and can accept corporate donations without limits.”

Rindfleisch, who has since been convicted of misconduct in office as a result of one of the many investigations surrounding Walker, added that the governor should stress to donors that he could accept corporate contributions that wouldn’t be reported.

A national Democratic consultant familiar with the race took pains to point out what a big prize Walker would be for the left. The Wisconsin governor “is very vulnerable, in a very dangerous spot for an incumbent and the fact that he hasn’t committed to serve out his next term means that what happens in Wisconsin is likely to have an effect on ’16.” But most importantly for Democrats, knocking off Walker would be a major consolation prize if they lose control of the Senate in 2014.

With prospects of holding on to a majority in the Senate uncertain, Walker offers Democrats an enviable scalp to wave in November. After all, he has been one of the most divisive governors in the country, and serves in a key swing state. Plus, Walker evokes so much anger among parts of the Democratic base that would lessen the bite of potential losses in national races.

Although some national progressive groups are starting to focus on the race—Democracy for America announced Thursday that it was backing Burke to “put a stop to the flow of extreme right-wing legislation that has been poisoning” Wisconsin under Walker—the attention is still far less than in 2012, when outside Democratic groups flooded the Badger State with money. The result is that Walker still has a significant fundraising advantage heading into final two months of campaigning.

The question, though, is whether the incumbent can hold on and win in the swing state. Because while Walker may savor the absence of protesters demonstrating against him, his poll numbers are still worse than they were in 2012.

 

By: Ben Jacobs, The Daily Beast, August 28, 2014

August 30, 2014 Posted by | Scott Walker, Wisconsin | , , , , , , , | Leave a comment

“Ignoring Well-Established Law”: Gov. Scott Walker, Allies Knew Prevailing Interpretation Of State Law

Supporters of Gov. Scott Walker have been working hard in recent weeks to conjure up excuses to dismiss the John Doe campaign finance probe.

First, they attacked it as a partisan witch hunt, ignoring the fact that the investigation is led by a Republican who voted for Walker and that it has the participation of both Republican and Democratic district attorneys from across the state.

Then, they tried to dismiss it as a “legally baseless” investigation, and argued that Wisconsin law does not prohibit the Walker campaign and Wisconsin Club for Growth from coordinating on electoral “issue ads” that omit the phrase “vote for” Scott Walker.

Now, Walker’s allies are acknowledging that the probe is grounded in Wisconsin law, but are claiming that prosecutors are enforcing a “zombie law” — allegedly rendered unenforceable by the U.S. Supreme Court — that the Walker campaign was purportedly free to ignore.

This is not the case.

The governor is endowed with many powers, but he cannot single-handedly rewrite the law or reverse legal precedent.

For decades, Wisconsin law has capped campaign donations to limit the influence of money in elections, and required candidates to disclose major contributions so the public can see who is bankrolling our politicians. Courts have interpreted the law to mean that “issue ads” coordinated with a candidate for state office can be regarded as in-kind contributions to the campaign, because they are of great value to the campaign. Any coordinated issue ad “contributions” that exceed donation limits and are omitted from campaign filings can be illegal. The same is true in federal elections, under federal law.

Even if the Walker camp believed that coordinated issue ads shouldn’t be regulated, or that at some point in the future a court might overrule existing Wisconsin precedent, this belief shouldn’t have given them license to ignore well-established law during the 2012 elections, as the prosecutors’ theory in the case alleges.

The U.S. Supreme Court has never held that counting electoral issue ads as contributions is unconstitutional. In fact, in 2003 the court explicitly upheld a provision of the McCain-Feingold Bipartisan Campaign Reform Act that treats issue ads that air near federal elections (called “electioneering communications”) as in-kind contributions if coordinated with a candidate. That holding has never been overturned.

And, even as a slim majority of the U.S. Supreme Court has chipped away at campaign finance limits for PACs and non-profits, it has done so with the express proviso that these groups are “independent” and their activities not coordinated with candidates.

Conservative Supreme Court Justice Anthony Kennedy explained in Citizens United vs. FEC that “the absence of prearrangement and coordination…undermines the value of the expenditure to the candidate.” In other words, if a candidate is coordinating with a third-party group, that group’s expenditures are of value to the campaign — and the contribution limits and disclosure requirements that apply to candidates would be rendered meaningless if politicians can work closely with a group that takes secret, million-dollar donations.

Wisconsin courts have had a similar take, and the John Doe prosecutors are relying on an interpretation of state law established by the Wisconsin Court of Appeals in 1999, in a precedent-setting case called Wisconsin Coalition for Voter Participation.

In that case, the court rejected arguments identical to those now being made by Walker and the Club for Growth, and held that, under Wisconsin law, electoral issue ads coordinated with a campaign count as contributions to the campaign.

Despite the claims of op-ed writers published by the Journal Sentinel, it is not the case that the courts had overturned the Wisconsin Coalition for Voter Participation precedent or rendered its holding unenforceable in advance of the recall elections. Just ask Wisconsin’s Republican Attorney General, J.B. Van Hollen. As thousands of people were occupying the Wisconsin capitol in 2011 — sparking a movement that would lead to the recall elections — Van Hollen was citing Wisconsin Coalition for Voter Participation in court briefs as controlling precedent.

Just months later, with recall elections heating up, prosecutors believe the Walker campaign and Club for Growth began working together, an alleged violation of the Wisconsin Court of Appeals’ interpretation of state law that Van Hollen had recently endorsed.

The Wisconsin Coalition for Voter Participation precedent was no secret. It is explicitly cited in the end notes to the Wisconsin statutes, which provide guidance on the prevailing interpretations of Wisconsin law for candidates such as Walker and the raft of lawyers who advise him.

Plus, the Wisconsin Elections Board — the precursor to the Government Accountability Board — issued a 2002 opinion citing both state and federal cases to advise that coordinated electoral issue ads are contributions under Wisconsin law. That opinion was affirmed by the GAB in 2008 and is clearly posted on the GAB website.

If the Walker campaign or Wisconsin Club for Growth believed courts were “moving” toward a different interpretation of Wisconsin statutes, they could have sought an advisory opinion from the GAB, or requested advice from Van Hollen. If they believed that U.S. Supreme Court rulings had made the Wisconsin Coalition for Voter Participation decision unenforceable, they could have sought a declaratory judgment from a state court.

The Walker campaign and Wisconsin Club for Growth cannot claim they were unaware of the prevailing interpretation of Wisconsin law, and Wisconsinites should know better than to buy their after-the-fact rationales.

 

By: Brendan Fischer, General Counsel, The Center for Media and Democracy in Madison: Milwaukee Journal Sentinel, July 17, 2014

July 20, 2014 Posted by | Campaign Financing, Scott Walker, Wisconsin | , , , , , , | Leave a comment

“A Murky Fog, A Legal Morass”: Scott Walker’s Conservative Bubble Shielded Him, Now It Might Sink Him

There was a big political development in Wisconsin Thursday, with the release of court documents that include an allegation by state prosecutors that Gov. Scott Walker, a 2016 presidential prospect, was part of a “criminal scheme” to skirt state laws in coordinating with outside conservative groups to stave off the 2011-2012 recall effort prompted by his successful push to undo public employee collective bargaining. The allegation was contained in files ordered unsealed by a judge in the so-called “John Doe II” case into whether Walker’s political team and outside conservative groups violated Wisconsin’s stringent rules against direct coordination between independent political groups and candidates by funneling millions of dollars from donors, many of them from outside Wisconsin, to fight the recall, which Walker won in June 2012. The investigation has devolved into a legal morassa federal judge ordered a halt to it in May and instructed prosecutors to destroy their evidence, saying they were overreaching, but his order was in turn blocked by a federal appeals court, which will soon rule on whether the investigation can proceed. Meanwhile, rumors circulate that Walker is in talks to settle the case with the state prosecutors, which has earned him the ire of some of his conservative allies.

Walker, now in the midst of a tight race for reelection, has not been charged with any crime. Still, the document’s release adds considerable detail to the murky fog around the investigation, and, by laying out so many of the prosecutors’ findings, helps explain why Walker may be inclined to settle rather than fight the case. The five county district attorneys leading the investigation appear to have plenty of goods to back up their claim of a “nationwide effort to raise undisclosed funds for an organization which then funded the activities of other organizations supporting or opposing candidates subject to recall.” From the Milwaukee Journal Sentinel article on the release:

In the documents, prosecutors lay out what they call an extensive “criminal scheme” to bypass state election laws by Walker, his campaign and two top Republican political operatives R.J. Johnson and Deborah Jordahl.

The governor and his close confidants helped raise money and control spending through 12 conservative groups during the recall elections, according to the prosecutors’ filings.

The documents include an excerpt from an email in which Walker tells Karl Rove, former top adviser to President George W. Bush, that Johnson would lead the coordination campaign. Johnson is also Walker’s longtime campaign strategist and the chief adviser to Wisconsin Club for Growth, a conservative group active in the recall elections.

“Bottom-line: R.J. helps keep in place a team that is wildly successful in Wisconsin. We are running 9 recall elections and it will be like 9 congressional markets in every market in the state (and Twin Cities),” Walker wrote to Rove on May 4, 2011.

I did not go down the rabbit hole of the John Doe II investigation in my new cover story about Walker and the racial divisions and political polarization in metro Milwaukee. (The piece does quote from racially charged emails released as part of an earlier investigation“John Doe I”that produced guilty pleas by six former Walker aides and allies, for misdeeds that include embezzling from a veterans fund and doing campaign work on taxpayer time.) I decided that delving into the John Doe II morass might distract from the piece’s focus on how the metro Milwaukee political landscape, with its stark divides and influential local talk-radio culture, has shaped Walker and in turn been shaped by him.

But the theme of the cover story and the investigation into coordination between Walker’s team and conservative groups are not unrelated. Both are, at bottom, about the same thing: the protective bubble of adulation and affirmation in which Walker has become increasingly ensconced in Wisconsin. The cover story describes one aspect of this bubblethe astonishingly monolithic base that Walker has, with the help of the talk-radio hosts he has cultivated for years, built for himself in the nearly all-white suburbs of Milwaukee, where voters turn out at the highest rates in the country to vote for him at levels that surpass 80 percent in some communities.

The other aspect of this bubble, though, is the inter-locking network of conservative groups and donors, such as Wisconsin’s own Bradley Foundation and the Koch brothers, have since 2010 come together to boost Walker and the Republican legislators who joined him in pushing through an aggressive conservative agenda in the face of massive protests in Madison. It is worth recalling that when a prank caller got through to Walker in February 2011 pretending to be David Koch, Walker made a direct request to the man he thought was Koch: to do everything he could to offer covering fire to protect Republican legislators: “A lot of these [lawmakers] are going to need a message out there reinforcing why this is a good thing for the economy and for the state,” Walker told “David Koch.”

That is what this investigation is about, whether the “reinforcement” provided by conservative groups and donors to Walker and legislators up for recall broke the law. In ordering a halt to the investigation in May, U.S. District Court Judge Rudolph Randa, a Republican appointee who has been active in conservative judicial-activist circles, argued that there was no problem with coordination between Walker and outside groups because it wasn’t as if the groups were trying to bring Walker over to their side by funding his anti-recall campaign: “[Wisconsin Club for Growth] obviously agree[s] with Governor Walker’s policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club’s interests are already aligned with Walker and other conservative politicians,” Randa wrote in his ruling. “Such ads are meant to educate the electorate, not curry favor with corruptible candidates.”

This is a striking claim, reminiscent of the Supreme Court’s recent rulings against limits on campaign contributionsthat limits can only be justified as bars against explicit attempts to bribe politicians to change their stances on issues. But that’s not what at issue in the John Doe II investigationthe question is whether the outside groups exerted undue influence over the outcome of the recall by skirting the state’s rules on coordination. It is whether the state’s electoral system was corrupted, not whether Walker was. No, there’s not any question that Walker already agrees with the groups that were backing himas our cover story shows, he’s developed politically in a deeply homogenous realm with precious little space for deviation. Our piece argues that this development has had a limiting effect on him that makes him a less than ideal presidential candidate for a Republican Party seeking to broaden its ideological and demographic appeal.

But with today’s release, the odds that Walker will even get the chance to make the 2016 case for himself within his party took a hit. The bubble helped Scott Walker rise, but it now threatens to take him down.

 

By: Alec MacGinnis, The New Republic, June 19, 2014

June 23, 2014 Posted by | Scott Walker, Wisconsin, Wisconsin Recall | , , , , , , , | Leave a comment

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