Capitol ethics

The Wisconsin State Capitol, pictured, is the office to many of the officials overseen by the state Ethics Commisison, which is nearing the end of its first year in operation.

How has the state’s new Ethics Commission performed in its first year on the job?

It’s tough to know, critics say, because much of what the commission does is kept secret. They say the fledgling commission is hindered by a law barring it from conducting some of its most vital functions in public view — and restricting its ability to probe alleged wrongdoing.

Current and former commissioners and other observers say they’ve seen some heartening signs from the six-member commission, which acts as the state’s watchdog of political campaigns and candidates, public officials and those who seek to influence them.

Made up of three Republican appointees and three Democrats, the commission has, by nearly all accounts, defied predictions it would be paralyzed by partisanship.

But critics say the commission is handcuffed by legal limits on what it can disclose about its efforts to enforce campaign finance, ethics and lobbying laws. It also is much more limited than its predecessor, the Government Accountability Board, in its ability to investigate alleged violations of those laws.

Peg Lautenschlager, a former state attorney general and a former Democratic appointee to the Ethics Commission who was its chairwoman before she resigned in April, said the commission needs to change from a model in which “everything is done behind closed doors.”

“To presume that this Ethics Commission was designed to address ethics violations would be a misstatement,” Lautenschlager said.

In late 2015, GOP lawmakers and Gov. Scott Walker passed a law creating the Ethics Commission and its counterpart, the state Elections Commission, to replace the Government Accountability Board. The commissions began operating in June 2016.

A spokeswoman for Senate Majority Leader Scott Fitzgerald said in a statement that his office has heard no complaints or criticisms about the efficacy of the Ethics Commission.

“Senator Fitzgerald has received no indication that the ethics commission is not functioning exactly the way it was intended to,” Fitzgerald spokeswoman Myranda Tanck said.

Law, not commissioners or staff, at issue

In the legislative debate that led to the commission’s creation, critics, most of them Democratic lawmakers and government-transparency groups, predicted it frequently would gridlock on party lines.

The commission’s chief administrator, Brian Bell, said commissioners — Democratic appointees David Halbrooks, Timothy Van Akkeren and Jeralyn Wendelberger and Republicans Mac Davis, Katie McCallum and Pat Strachota — have operated largely by consensus so far.

According to Bell, who reviewed records of open and closed sessions of the commission, it hasn’t had a single 3-3 party-line vote yet.

“I don’t think that we go in there thinking we’re Republicans or Democrats. I don’t get that sense,” said Strachota, a former five-term state Assembly lawmaker who briefly served as its majority leader.

Bell also said he has a good working relationship with commissioners and they have given him the support he needs to run its day-to-day operations.

Mike Wittenwyler, an attorney who represents campaign groups across the political spectrum that are regulated by the commission, agrees that partisanship hasn’t been its problem. But Wittenwyler also said it’s obvious commissioners and staff are still finding their way.

“It’s clear that they’re still growing and they’re still learning, and they really haven’t found their groove yet,” Wittenwyler said.

Turnover was an issue early as two commissioners, first Robert Kinney and then Lautenschlager, both Democratic appointees, stepped down.

Kinney, a state reserve judge from Rhinelander, blasted the commission as dysfunctional and ineffective in a letter announcing his departure.

Lautenschlager said her departure came primarily to avoid potential conflicts relating to the campaign of her son, Madison attorney Josh Kaul, who’s running for state attorney general.

Yet Lautenschlager said she respects many of the concerns Kinney raised. Most of the problems, she said, stem not from the commission or its staff but from laws that govern it.

Strachota said it’s not the role of commissioners to debate those laws.

‘Our responsibility is to enforce the law’

“These are the debates that the Legislature has to have,” she said. “Our responsibility is to enforce the law as written.”

The law bars the commission from initiating an investigation of potential campaign finance, ethics or lobbying violations, as the Government Accountability Board was permitted to do.

The Ethics Commission may investigate only allegations in response to a written complaint. At least four commissioners must decide that the complaint gives “reasonable suspicion” a violation occurred.

Lautenschlager said the investigatory threshold likely needs to be changed to make it easier for the commission to look into possible wrongdoing.

Some of the commission’s secrecy mirrors how the accountability board operated.

The law ensures that complaints coming before the commission alleging violations of campaign finance, ethics or lobbying laws remain out of public view. So too are the commission’s deliberations on whether to investigate complaints or how to respond to them, which are done in closed session.

The only information that becomes public comes after the commission decides how to address a complaint.

Even then, basic information such as the parties to the complaint — or the complaint itself — are kept confidential.

Kevin Kennedy, who directed the Government Accountability Board until retiring when it became defunct last June, said he disliked such secrecy requirements when they applied to the accountability board.

Only for ethics matters, he said, is there a strong argument for keeping such information confidential.

Individuals or groups that file complaints may — and sometimes do — release them publicly.

The Wisconsin Democracy Campaign, the Assembly Democratic Campaign Committee and the Republican Party of Wisconsin are among those that have done so in cases where they alleged violations of campaign finance law.

Commissioners aware of GAB criticisms

Republicans who created the commission scrapped the GAB because they said it showed partisan bias against the GOP and overstepped its authority on a range of enforcement matters.

The most high-profile of those was a John Doe investigation into Walker’s 2012 recall campaign and conservative groups, in which the accountability board played a key role in assisting county prosecutors. The state Supreme Court halted the investigation in 2015.

Since the Ethics Commission began operating, Bell acknowledges that commissioners have been “very aware of the criticisms of the GAB that staff had too much influence and control of decision-making.”

“The commission is more focused on administering the law than creating policy,” Bell said.

But Wittenwyler said the commission’s secrecy is problematic for individuals and groups that are regulated by it, such as the ones he represents.

He said the commission could do more under its existing authority to make public, in generic form, information about the commission’s deliberations and decisions.

That way, individuals and groups overseen by the commission could have greater guidance on how to follow the law, he said.

“One of the most frustrating things is trying to read the tea leaves instead of being able to see exactly how (commissioners) define things or how they interpret the law,” Wittenwyler said.

Complaints aren’t the only way the commission fulfills its enforcement duties. Much of that work comes through auditing public officials, candidates, lobbyists, and campaign groups and organizations, according to its staff counsel, David Buerger.

Commission staff conducts 15 types of audits throughout the year to identify and address violations of both the campaign finance and lobbying laws, Buerger wrote in an email. He said the audits identify “hundreds of violations … compared to the handful we are informed of by complaints.”

Buerger said the commission provides general information about the audits but, as is the case with complaints, cannot reveal specifics.

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