How Dark Money Will Rule Wisconsin

Imagine you are a corporation or wealthy person looking to buy a politician and purchase a certain policy decision. In Wisconsin that is about to become very simple.

Under the new laws, you will be able to spend as much as you want — mega-millions perhaps — to support a politician and your donation will remain a secret to the public, so no one will ever know the policy this politician is supporting was requested by you.

“We are going to be drowning in a sea of dark money and it will give corporations and wealthy people more power over our electoral system in Wisconsin than ever before,” says Matt Rothschild, executive director of the Wisconsin Democracy Campaign. “It’s going to be the Wild West. Anything goes.”

And because the new laws will kill the watchdog Government Accountability Board and replace it with an paper tiger controlled by the legislature, “you will have unlimited money spent with no fear of being investigated or prosecuted,” says Jay Heck, executive director of Common Cause of Wisconsin.

“It will create an atmosphere where political corruption and criminality are going to fester,” Rothschild predicts.

These guys make their living, of course, championing simon-pure government. So are they over-dramatizing the situation? Let’s consider what the Republican legislature has proposed.

One proposed change, on campaign donations, will double the amount donors can give. That’s a red herring. Given that the limit hadn’t been increased in decades, it was a perfectly reasonable thing to do, which might be why Republican leaders like Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald (who are driving this legislation) put all the emphasis on that.

In fact, these limits will be irrelevant for big givers, who will now have other ways to give unlimited donations. For starters, a wealthy individual or corporation or big union can simply give money — and secretly — to right-wing or left-wing advocacy groups. Under the new law, these so-called “independent” groups can now coordinate with the candidates, something never previously allowed, to make sure the money is being spent in ways the candidate wants.

“Why bother with the $20,000 limit (the new limit on individual donations to a candidate for governor) when you can give unlimited donations to advocacy groups who can then coordinate with the campaigns?” Heck asks.

This coordination can occur in two ways under the new law. First, the advocacy groups that are less direct, that mimic traditional campaign ads but escape regulation by avoiding phrases such as “vote for” and “vote against,” are now allowed to coordinate their activities with the campaigns of candidates they favor. This is in opposition to decades of U.S. Supreme Court rulings that have made clear such coordination is not legal.  Florida, says Heck, is the only other state with a law allowing such coordination.

But the law also opens the door to coordination with campaigns by “express advocacy groups,” those that do directly tell you how to vote. This new provision says such coordination is only barred when candidates specifically request the group spend money in a certain way and the group in turn explicitly agrees to do so.

In short, Rothschild notes, “if the candidates don’t explicitly request it, and simply say, ‘isn’t this a good idea, to spend your money this way on this ad,’ then it’s legal. This is a loophole large enough to drive a Koch Industries truck through it.”

Even the Wisconsin Supreme Court, which bent over backwards to support conservative advocacy groups, in its egregious decision on the John Doe probe, made it clear that express advocacy groups cannot coordinate with campaigns. Now they can coordinate freely, to a degree that no state has ever sanctioned.

The new law will also allow another way to evade campaign regulations: simply give directly to political parties. Wealthy individuals, corporations, unions and tribes will now be allowed to give unlimited amounts of money to the Republican or Democratic parties and the parties can then divvy out the money to their candidates.

This will give tremendous power to the four legislative leaders: Senate majority and minority leaders and Assembly Speaker and minority leader. “The legislative leaders will be able to enforce tough discipline to discourage independent stands or even thoughts by individual legislators,” Heck says. “They can deny money to candidates or even run other candidates against them.
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Republican legislators, in short, are voting for a plan that may turn them into pliant sheep who must obey their leaders. And the four legislative leaders will have the kind of campaign coffers and party power that led to the caucus scandal of 15 years ago. Many big donors won’t bother with rank-and-file legislators and will simply make a deal with the leadership, in most cases with the two Republicans who will hold all power. “It’s about dictatorial power and it’s a recipe for political corruption,” says Heck.

But Republican leaders have taken care to make sure any such corruption can’t be investigated. They previously made it illegal for prosecutors to do any John Doe probes of political corruption and have not allocated any money for grand jury-led probes, which are considerably more expensive to do. But the second of the two laws about to be passed will also end the watchdog oversight of the Government Accountability Board.

The GAB was created in response to the caucus scandal; an overwhelming bipartisan majority of legislators created a watchdog agency with a board made up of retired judges. Since it was created the board has always had a majority of judges with a Republican background. But Republicans were outraged by the GAB’s decisions and will make sure the current director, Kevin Kennedy is displaced, while replacing the GAB with an elections commission and ethics commission, each of which will have a board with equal representation by Republican and Democratic appointees. At the best this will create gridlock, as a panel equally split between the parties won’t approve any investigations.

But two other provisions will assure complete protection only for Republicans. If the boards can’t agree on who to appoint as the new executive directors of the two new commissions — which seems certain — the decisions pass to the Joint Committee on Legislative Organization, where Republicans hold a majority. And the new ethics and elections commissions will have no money to pursue an investigation unless it is approved by the legislature, where Republicans control both houses. “The GAB has been totally denuded of any power,” Heck says.

The new structure provides good protection — divided boards — from any discipline or investigation of Democrats, but provides triple protection — divided boards, final say on the executive directors and total control of any funding for investigations — to Republicans. Small wonder Heck and Rothschild predict that political corruption will be rife under such a system.

The media has often put more emphasis on the other parts of the new laws, perhaps because they are easier to understand. Yes, the contribution limits are being raised for traditional political donations, and yes, these donors will no longer have to list their occupation (something that is required in 35 states, Heck notes.) This, too, will make government less transparent, shielding all political donors from full disclosure and making it harder to detect when a bill is being pushed by a certain industry, business or union.

But the bigger fish, one suspects, won’t even bother with traditional donations. They will be able to give unlimited and secret money to those right-wing or left-wing advocacy groups who will then coordinate with the candidates they favor. And they will demand the policies they want from legislative leaders and provide the requested amount of donations to seal the deal. And they can do all this free from disclosure, knowing state watchdog agencies are unable to police any unethical or illegal actions by legislators or donors.

Most of the undisclosed deals will be made by conservatives and Republican legislators because the GOP now holds all the power in the Capitol. But the law is written to give all this unchecked power to whichever party is in the majority. If the state senate flips or if the next governor is a Democrat, the unlimited and undisclosed money will flow in a more bipartisan direction and Democratic leaders are unlikely to reject the power this will give them. Such power will inevitably corrupt both parties.

The big losers here are the citizens of this state, who will see this state quickly turned into a government ruled by dark money and secret deals. As Rothschild marvels, “it’s really an unbelievable thing for a state that use to pride itself on clean and open government.”