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Although common among defense attorneys, such negotiations involving legislators — who control district attorneys’ budgets — can create the appearance of special treatment for their clients.
But in a little-noticed move last month, the state Government Accountability Board voted to bar the practice, overturning a previous Ethics Board policy.
Observers say the action on the obscure issue shows that the board is working just as intended in its first few months on the job — as a nonpartisan independent watchdog trying to restore public confidence in state government.
“That decision shows more steel and backbone than we ever saw from the old state Elections Board and state Ethics Board that were fearful of crossing the Legislature,” said Jay Heck, executive director of Common Cause in Wisconsin, which helped craft the law creating the accountability board. “This is exactly what we knew we needed.”
In just three months, the six-member accountability board, made up of retired judges approved by the Legislature also has:
- Referred one campaign finance complaint to a district attorney. Officials said the complaint had to do with a local matter but wouldn’t disclose details.
- Voted to consider regulating thinly veiled campaign advertising known as issue ads.
- Launched a review of lawmakers’ daily allowance payments for living expenses.
- Announced it might undertake its own testing of electronic voting machines prior to the fall elections rather than wait for federal testing, which a board official said is taking longer than expected.
In a potential setback for the board, two members resigned last week after Attorney General J.B. Van Hollen ruled they had been unlawfully appointed.
Like the other four members of the board, the two are retired judges. But the state constitution forbids judges from holding another office during the term for which they were elected. David Deininger and James Mohr left the bench and were appointed to the board before their terms expired.
But even that move has been hailed for how swiftly the board responded. Van Hollen’s ruling didn’t invalidate any of the board’s earlier decisions. It will, however, force some delays until the board gets back to full strength.
“What the citizens want is to be reassured that after the scandals of the last decade that Wisconsin government is on track to become clean again, and this is the body to do it,” said Mordecai Lee, a professor of governmental affairs at UW-Milwaukee. “And any delays are problematic to accomplishing that goal.”
Kevin Kennedy, the board’s general counsel, said among the issues that would be delayed is possible regulation of issue ads. A discussion on the subject scheduled for the board’s May 5 meeting has been postponed, he said.
Replaces two flawed boards
Lawmakers created the accountability board last year by merging the old Ethics and Elections boards. The ethics board was perceived to be ineffective, and the elections board was seen as too partisan.
Mike McCabe, executive director of the Wisconsin Democracy Campaign, which lobbied for creation of the accountability board, said the group has yet to be “seriously tested.”
But by looking at legislative allowance payments on its own initiative rather than waiting for a citizen complaint, the board has shown an aggressiveness that the ethics and elections boards lacked, McCabe said.
It’s unclear if the board has any authority over such payments, known as per diems, said Deininger, of Monroe, Wis., a former state Court of Appeals judge who was the board’s chairman until he stepped down last week.
But he said the board wanted to learn more after the Milwaukee Journal Sentinel reported last year that some lawmakers received the payments for working in Madison on the same day they also reported expenses on their political campaigns.
Board interested in issue ad rules
Deininger said the board also wants to look at whether it can regulate issue ads because the ads dominated the airwaves in the recent Supreme Court race — even as the board discussed them.
Members are exploring whether there are constitutional restrictions on what they can do, Deininger said. But he said the names of people and companies that pay for issue ads should be disclosed.
Deininger said it’s too early for him to evaluate the work of the board. But he thinks the board will remain an independent body as it handles increasingly sensitive and complex matters.
“The people sitting around that table are sensitive, fair-minded individuals,” he said of the board. “They’re sensitive to the political pressure that lurks, and they have the strength and will to resist it.”
Mark Pitsch is a reporter for the Wisconsin State Journal in Madison.
