Right-of-center activists and organizations in Wisconsin have fought a silent war against the state’s Government Accountability Board since 2013 over the issue of political free speech. Milwaukee County District Attorney John Chisholm, a Democrat, spearheaded a GAB probe into accusations that conservative groups illegally coordinated with Republican Gov. Scott Walker during the 2012 recall election campaign.
This nightmare ended on July 16, when the Wisconsin Supreme Court ruled, 4-2, to stop a John Doe investigation into whether any campaign finance laws were violated. A John Doe investigation is a secret proceeding in which the suspect is prohibited from telling anybody but legal counsel about the accusation or anything else about the case. It is a clear violation of the First Amendment. The constitutionality of Chisholm’s probe was questioned in 2014, when federal Judge Rudolph Randa and state Judge Gregory Peterson issued stays against the investigation, pending a ruling from the state’s highest court.
Numerous emails revealing the conduct of GAB have been made public during subsequent lawsuits filed by activists and organizations targeted by the John Doe investigation. The documentation showed the state’s elections and ethics agency engaged in highly partisan behavior during the investigation. Additional evidence surfaced of GAB staff using personal email accounts to evade disclosure of their investigative activities under the state’s public records law.
These revelations forced both houses of the Wisconsin Legislature to take drastic action to ensure this sort of behavior does not happen again. State Rep. Dean Knudson (R-Hudson) and state Sen. Leah Vukmir (R-Wauwatosa) introduced a bill to overhaul the GAB and replace it with two separate commissions for elections and ethics. State Rep. Dave Craig (R-Big Bend) and state Sen. Thomas Tiffany (R-Hazelhurst) introduced legislation to end the use of John Doe proceedings for alleged campaign finance crimes. The legislation passed both the Assembly and Senate on Oct. 21.
Kevin Kennedy, director and general counsel of the GAB, was subjected to a very hard line of questioning during a hearing of the Senate Committee on Elections and Local Government on Oct. 13. State Sen. Chris Kapenga (R-Delafield) asked Kennedy about his relationship with disgraced Internal Revenue Service Director Lois J. Lerner. Kennedy angrily responded, “Seriously, have you no decency? This is a question right out of Joseph McCarthy.” His response to Kapenga’s question set the tone for the rest of the hearing, which ended on very testy overtones.
Kennedy has served as the chief elections officer of the state of Wisconsin since 1983, when the old state elections board was in existence. His conduct during the committee hearing proved he would be willing to scream “McCarthyism” in a desperate attempt to shield a supposedly nonpartisan elections agency from further scrutiny. The fact that such an obvious partisan has overseen Wisconsin elections for 32 years is an embarrassment to the state.
Despite experts praising the GAB as a national model for election administration, the organization’s track record is far from nonpartisan. The state’s legislative audit committee found GAB has not followed the most basic of state election laws, such as checking the ineligible voter list for those with felony convictions. A former operative of the state Democratic Party was hired to serve as a chief elections administrator and as staff counsel, contrary to the agency’s mission.
By invoking the ghost of Joe McCarthy, Kennedy is in serious denial about the immense problems with his agency. It will take an act of the state Legislature to ensure this sorry chapter in the state’s 167-year history will not have a sequel.