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CLOSING ARGUMENTS: Is the breaking up of the GAB justified?

By: WISCONSIN LAW JOURNAL STAFF//December 22, 2015//

CLOSING ARGUMENTS: Is the breaking up of the GAB justified?

By: WISCONSIN LAW JOURNAL STAFF//December 22, 2015//

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Will the breaking up of the state’s Government Accountability Board into two agencies controlled mostly by representatives of the main political parties result in nothing more than gridlock and inaction?

Our first columnist this month argues, that even if that’s the case, those outcomes will be better than “the political witch hunts” that critics contend the GAB was able to indulge in under ostensibly nonpartisan overseers. In other words, if inaction is the price of preventing the agencies of government from being used for political purposes, so be it.

The same columnist – Rick Esenberg, president and general counsel of the Wisconsin Institute of Law & Liberty – also provides the starting point for the second Closing Arguments article this month. In a piece that appeared Nov. 2 on the conservative news outlet Right Wisconsin, Esenberg implied that journalists are being hypocritical when they argue that politicians should not be allowed to keep the names of campaign donors secret and then go on to vigorously defend their right to cite anonymous sources.

The piece, entitled “What the Press Doesn’t Get about Freedom of Speech,” caused quite a stir, especially since it came around the same time that Republican lawmakers were voting for legislation that will prevent them and other politicians from having to disclose the names of donors on official documents. Brendan Fischer, general counsel at the Center for Media and Democracy, argues this month that Esenberg’s arguments fail to take into account important differences and, in doing so, lead to a false comparison.

Now, gentlemen, to your corners.

Inaction any day over partisan witch hunts


The idea behind the GAB – turning the administration of elections and campaign finance over to a “nonpartisan” group of judges – had merit. But an idea, in order to be shown to be good, must eventually withstand the test of experience.

The second Doe investigation was facilitated by the GAB at the instigation of the Milwaukee County District Attorney. Whatever the DA’s motives, his membership in one particular political party cannot be overlooked.

The state’s former John Doe law allowed him to launch an investigation into almost the entire political infrastructure of the opposing party. From the beginning, the hypothesis the DA was working with was beset by flaws. This is evident in the fact that every court that has reached the merits of the prosecutors’ view of the law’s scope has ruled against it.

Even if GAB officials and prosecutors thought that these flaws could be overcome, they should have understood them. They should have appreciated the danger to freedom of expression entailed by aggressive criminal investigations of political activity and tempered their prosecutorial zeal accordingly.

But they did not. The nature of their suspicions might have led to a civil investigation, but they instead pursued a criminal one. They cast a broad “round up the usual suspects” net in an extraordinarily aggressive way – using predawn raids that are not the normal stuff of campaign-finance law. They accompanied these unusual steps by another one – a gag order that prevented those who were targeted from telling anyone but their own lawyer what was being done to them.

Nevertheless, those targets knew that the investigation, like the first and largely ineffectual Doe investigation, was likely to be beset by leaks.

If the goal was to send a chilling message to advocacy groups throughout the state, this was the way to do it. If this was the actual fruits of the GAB, no matter the good intentions behind the agency, then it was in desperate need of reform.

From our current vantage point, it’s easy to see that this type of misadventure was likely from the beginning. Retired judges have usually stopped working for a reason and could have been expected to be willing to spend only so much time on their duties related to the GAB. Judges, moreover, are by their disposition and experience used to ruling in response only to what others have brought before them. This tendency made it likely that the board would be highly dependent on staff.

The GAB staff, even under the best of circumstances, was likely to have its own biases. Regulators, for example, generally like to regulate. If partisan bias is introduced to the mix – and there is some very uncomfortable evidence emerging that it may have been – you’ve got the potential for disaster.

And disaster is precisely what happened.

The current plan to return to a board with a calculated partisan balance has its own flaws. The board, for instance, may fail to act when it should.

But when it comes to the regulation of speech, I would prefer inaction to action that targets protected expression. I would prefer a truce between partisans – even one that is rooted in deadlock – to the potential for partisans to use regulation as a political weapon.

Rick Esenberg is president and general counsel of the Wisconsin Institute for Law & Liberty.

Anonymous campaign donors in no way like reporters’ anonymous sources

FischerOn the subject of campaign finance and a reporter’s supposed right to protect sources, these two issues are not even in the same territory.

The overarching purpose of requiring disclosure of campaign finances is to prevent corruption as much as possible. Mandatory disclosure of the sources of a politician’s financial support helps the press and public track whether big donors are improperly influencing elected officials.

Giving the public the means of connecting the dots between big contributions and political favors can also help deter bad behavior in the first place. As U.S. Supreme Court Justice Louis Brandeis once wrote, “Sunlight is said to be the best of disinfectants.”

Reporters, in contrast, rely on a source who insists on anonymity when the facts may not get out otherwise. The anonymous source “Deep Throat,” for example, helped break the Watergate scandal and led to revelations that secret donations were secretly buying influence in Richard Nixon’s White House, which had used a slush fund to raise and spend money in partisan elections.

Another way of looking at this issue is to assess who bears the risk in each situation.

An anonymous source poses a risk to the news outlet that relies on that source. If the information turns out to be untrue, it will undermine the credibility and trustworthiness of the news outlet.

Some sources may wish to stay anonymous because the person or corporation they are exposing is extremely powerful. But others may want to stay anonymous to spread false rumors. Journalists know that they are putting their credibility on the line when they rely on anonymous sources, which is why they usually verify the facts from the source through other means.

In contrast, the risk posed by anonymous political contributions is to the integrity of our democracy as a whole. Secret cash can lead to closed-door, backroom pay-to-play schemes being hatched without public knowledge. It can result in big donors holding undue influence over our elected officials without any chance for public scrutiny.

Journalists put their own credibility on the line when relying on an anonymous source, but that isn’t the case with politicians—in fact, it is quite the opposite.

Anonymous donations pose less risk to an individual politician than a disclosed contribution, because the politician won’t face public criticism if he or she later provides special treatment to that donor, or if the donor turns out to be an unsavory individual.

This underscores the grave flaws in the notion that money is indistinguishable from speech.

There is always a risk that information from an anonymous source will be unreliable.

In contrast, there is never a risk that a politician will be unable to cash an anonymous donor’s check.

Likewise, words and information will hardly lead to corruption—yet money certainly can. There is no real chance of anonymous sources corrupting the press.

Yet limiting disclosure and failing to enforce reasonable limits on candidate coordination with secretly funded political groups will breed a climate of corruption in this state.

Brendan Fischer is general counsel for the Center for Media and Democracy, a group that often takes up liberal causes.


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