Judge Timothy Vocke says it wasn’t the decades he spent as a district attorney, or as a judge, that most prepared him to serve as a member of the state’s Government Accountability Board.
“I think the best training I got was the 10 years I spent as a wrestling referee,” Vocke said.
In that job, Vocke says, he heard plenty of opinions from the sidelines — and got used to angering half of the crowd half of the time. The same could be said for the GAB.
“I think the fact that both sides, the left wing and the right, have criticized us, it’s a pretty good indication that we’re walking down the middle,” said Vocke, who is chairman of the GAB. “We’ve irritated everybody. That’s a good thing.”
But has the GAB — which is charged with overseeing Wisconsin’s campaign finance, elections, ethics and lobbying laws — irritated some people too much?
The nonpartisan board, which is made up of six former judges, and its staff are preparing to celebrate their sixth anniversary next month. But the GAB is also eagerly awaiting the results of an audit ordered by the Republican-controlled Legislature — many of whom have been vocal critics of the board and its decisions in recent years.
Republican leaders declined to be interviewed about the GAB. But Senate Majority Leader Scott Fitzgerald, R-Juneau, sent a statement saying lawmakers would wait until the audit is released before pushing for changes.
“We will wait to review the findings of the Legislative Audit Bureau’s audit before making any decisions on what we need to do to address some of the more problematic areas of the GAB,” Fitzgerald said. “Anyone who followed the recall elections in 2011-2012 knows that the GAB has at times been a lightning rod for controversy, and while some of that naturally comes with overseeing partisan elections and processes, I am interested in finding out what internal procedures could be improved to ensure maximum efficiency and impartiality on behalf of the board.”
He added, “I have stated before that I am concerned that the board oftentimes acts as a rubber stamp for staff recommendations, and I would like to see GAB establish a more formal process for stakeholders to present their case to the staff and educate the Board before votes are taken.”
Fitzgerald said previously he hoped to remove retired judges from the board and replace them with political appointees.
That suggestion has worried some experts, who say Wisconsin’s GAB is a national leader when it comes to elections.
“The GAB is a national model, and it would be a tragedy and a travesty if it were eliminated,” said Daniel Tokaji, a law professor at Ohio State University.
In an upcoming article to be published in the University of California-Irvine Law Review, Tokaji cited the GAB as a sign of hope that the United States can move away from a system of partisan election administration to a nonpartisan model.
“Wisconsin is the only state with a truly nonpartisan board structure,” Tokaji wrote.
About a dozen other states have elections boards, but they are bipartisan boards, said Wendy Underhill, program manager for the National Conference of State Legislatures.
Tokaji’s article acknowledged recent controversies swirling around the GAB, including issues like voter registration, photo identification at the polls and numerous controversies related to the 2011 and 2012 recalls. But he said criticism of the GAB was more a product of “hyperpolarized politics” in Wisconsin than any actual mistakes the GAB made.
“It’s worrisome that we see partisan politicians on the warpath against the GAB. Worrisome but not surprising,” Tokaji said. “Wisconsin has a better system. It’s independent. It’s a model.”
Nonpartisan agency, hyperpartisan times
In 2007, lawmakers overwhelmingly voted to create the accountability board, combining the state’s elections and ethics boards to create an agency meant to be tougher and more independent.
But in recent years, especially following contentious recall elections in the wake of Republican Gov. Scott Walker’s proposal to all but end collective bargaining for most public workers in the state, lawmakers from both sides of the aisle have accused the board of partisanship.
Republicans raised a number of concerns about the GAB’s handling of the recalls, including the timing of recall elections and the process for vetting recall petitions for problem signatures.
Democrats also raised concerns. For example, they criticized the board’s decision to allow on recall ballots fake or “protest” Democrats — who were essentially Republican activists running as Democratic candidates in some of the recalls to give Republican incumbents more time to campaign and raise money.
Also, many liberals criticized the GAB over its decision that “scholarships” provided to lawmakers by the conservative American Legislative Exchange Council (ALEC) were not improper or illegal.
“I disagree with that decision. These are clear corporate monies,” said state Rep. Chris Taylor, D-Madison. “It seems to me that this would conflict with our ethics laws.”
Taylor added, however, that a nonpartisan process is better than a partisan one, and going back to a partisan board would be “going backward.”
But Republicans control the Legislature. And Fitzgerald has accused the GAB of consistently making decisions that favor Democrats.
The audit is expected to be released in spring.
Learning from the audit
Kevin Kennedy, director and general counsel of the GAB, said he was not worried about what the audit will find.
“I’m more concerned about what is the audit going to tell us? What can we learn from it?” Kennedy said. “For us, we are thinking this helps us.”
Barry Burden, a UW-Madison political science professor, said he doesn’t think the audit “is going to turn up many surprises.”
Burden, who has been a consultant for the GAB at times over the years, said auditors may find that the agency is understaffed, noting that it is one office overseeing a decentralized web of about 2,000 local election clerks.
Tokaji said he thinks the GAB is running a tight ship but added that even audits are subjective.
“It all depends on who’s doing the audit,” he said.
Even though Tokaji clearly thinks highly of the GAB, he questioned what its future will hold.
“In our age of hyperpolarized politics — of which Wisconsin has lately been a leading example — whether such a nonpartisan institution can function effectively is an open question,” he wrote. “Is there any hope for a nonpartisan election administration in an era of intense political polarization?”
Politics of nominations
Even choosing judges to sit on the nonpartisan board is not insulated from politics.
For example, this fall Gov. Scott Walker withdrew his nomination of the board’s former chairman, David Deininger, apparently after facing opposition from Senate Republicans.
Deininger, a former Republican lawmaker who’s term was set to expire in May 2016, has as a result left the board.
“I’m disappointed,” Deininger said. “I enjoyed serving on the Government Accountability Board, and was looking forward to serving out the term the governor had appointed me to.”
Deininger said no one gave him a reason his confirmation wasn’t taken up by the Senate, adding that he hadn’t heard from the Senate or the governor’s office about the decision.
At the time, Walker also nominated former congressman Harold Froehlich and Elsa Lamelas, and renewed the nominations of current members Gerald Nichol and Vocke to the board.
When asked about Deininger, Kennedy acknowledged that the nonpartisan board is subject to partisan pressures.
“You’re never going to remove the politics from the selection process,” Kennedy said.