Given the release of the report by the state attorney general regarding the abuses of the John Doe process by the former Government Accountability Board (GAB), we thought we would re-post this classic by former managing editor Brian Fraley from our archives from March 13, 2014. The article was written before Fraley was notified that the GAB had possession of his emails.
We spoke to Fraley about Wednesday’s developments. He said he is not surprised at the breath and depth of the GAB’s maliciousness. Nor has he received any notification that his electronic records have been destroyed. Furthermore, the John Doe prosecutors never did let him know exactly what materials of his they had obtained, despite the court order that they do so.
March 16-22 is Sunshine Week. That’s the time of year when the mainstream news media applaud themselves for all they have done to create and promote open and transparent government. While many outlets have done some impressive work with regards to spending, lobbying and budgeting, there remains one significant black mark on their record: Their support for the rogue operation that is the most-secretive, least-accountable government agency in all of Wisconsin: The Government Accountability Board (GAB).
The GAB is a partisan cesspool that needs to be drained.
Point of order here, don’t confuse the GAB with the retired judges who comprise the Board. When there is a vacancy for the GAB, a panel of current judges (appointed by our liberal Chief Justice) must recommend at least two retired judges to fill the vacancy. The governor can only pick from the judges put forward by this panel. This convoluted scheme gives GAB defenders the talking point that the GAB is filled with Walker ‘appointees.’ Rubbish.
Moreover, it doesn’t matter. The uber-bureaucrats who comprise the GAB staff run the place. They are the ones who advocated for the GAB’s involvement in the John Doe Witch Hunt of Wisconsin conservatives. The GAB staffers hired Dean Nickel, the mysterious investigator whose contract and budget are anything but transparent. The judges are mere window dressing.
The GABers are not interested in regulating elections. They administer the casting and tabulating of votes, to be sure…but as we saw with the recalls and their unwillingness to verify signatures and enforce Election Day practices, elections aren’t their thing.
They are very interested, however, in regulating speech. Particularly pro-free market, conservative speech. The (mostly) men who work at the GAB have a two-decades long history of trying to be the Speech Police. It’s a record replete with disdain for legislative intent, state statutes and the Constitution of the United States.
The GAB (and its predecessor) have a history that is worth reviewing.
In the 1990s, the State Elections Board tried to ban the free speech rights of Wisconsin employers. As one observer wrote of the effort at the time:
“Politicians are using legal threats to squelch antagonistic TV ads; prosecutors are investigating political activists to find out whether they tried to influence politics; and interest groups are becoming fearful of criticizing candidates by name. Thank Wisconsin, then, for reminding the rest of the country that criminalizing political speech, even with the best of intentions, inevitably produces less speech and more criminals.”
Five years ago, the GAB rushed through rules regulating speech that had no basis in state law and continued the effort even after it was clear the move was directly in violation of the historic 2010 Citizens United Supreme Court ruling. Again, those rules were enjoined by the Wisconsin Supreme Court. The rule is still there, with no enabling legislation mind you. However, the GAB insists it will not enforce the offensive provision while the courts consider the issue.
But the GAB kept at it, and soon was knee-deep in the John Doe Witch Hunt, financing and assisting Nickel’s work.
But they were stymied. Again. The investigation has largely been derailed by a judge who understands the primacy of the Constitution and US Supreme Court rulings.
On Jan 10, Judge Gregory Peterson ruled that efforts to censor and criminally punish conservative groups were not based on Wisconsin law or the Constitution.
Peterson, who oversees the super secret John Doe investigation into conservative groups, quashed search warrants and subpoenas because prosecutors had failed to show that their ad campaigns had urged the election or defeat of candidates. He wrote that what prosecutors alleged to have happened wasn’t illegal. His ruling has never been revealed, but portions of it were published by The Wall Street Journal.
However, his ruling never would have been needed if the Legislature would have passed a law to ban the government regulation of issue advocacy as proposed in 2013. The law would have clarified the thicket of US and Wisconsin Supreme Court rulings and clearly stated that the government only regulates political speech that urges the election or defeat of a clearly identified candidate.
But clarity is anathema to the left.
The GAB bureaucrats prey on ambiguity. Clarity puts the Speech Police out of business.
A particularly chilling moment came in June of 2013 when a bill that would have codified express advocacy as the standard for regulating political speech was heard in the Legislature. The GAB staff rushed to testify and urge the bill be rejected. Why?
We didn’t know it then, but the GAB was crafting a theory of illegal coordination in concert with the Special Prosecutor that was based on political purpose test and not an express advocacy test. In October, John Doe 2 went forward with a series of subpoenas and search warrants of Wisconsin conservatives. If Citizens United and earlier rulings by the Wisconsin Supreme Court were codified, the entire premise under which John Doe 2 was launched would have been moot.
The local George-Soros funded press outlet sounded the alarm at the time:
Republican lawmakers in Wisconsin are fast-tracking a controversial bill to keep political donors secret, enact voter ID, and limit early voting, among other measures, with a vote scheduled for next week. The only public hearing on the bill was held Tuesday, where a representative of the business lobby made several misleading assertions about the bill’s disclosure provisions.
“Our main message today to the committee is to please slow down,” Jonathan Becker and Mike Haas of the state Government Accountability Board told the Assembly Committee on Campaigns and Elections.”
The Speech Police had weighed in, and you can bet a dozen gluten free croissants from the Capitol Famers’ Market they knew the John Doe 2 investigation was well underway. If the law was changed, their case was closed, and so was their path to unseating GOP Governor Scott Walker.
Why am I interpreting partisan intentions on behalf of the supposedly non partisan GAB? Look no further than the partisan pedigrees of three key figures at the GAB, such as Shane Falk, a former Democrat member of the old state Elections Board and a hard core partisan. Or, Jonathan Becker, a former chairman of the Dane County Board who once practiced law with former Wisconsin Governor Jim Doyle. Also at the GAB, the heretofore quoted Mike Haas, who was a former key staffer to Milwaukee Democrat Speaker Walter J. Kunicki before running for state Assembly as a Democrat.
Is it any mystery why no John Doe investigation occurred regarding liberal interests even though the left likely outspent conservatives during the periods of the recall elections in 2011 and 2012?
Thankfully, even without the change in state law, Peterson came to accept the constitutional arguments that the investigation was not based on state statute nor was it constitutionally valid. But a lot of damage had been done in the interim.
With the legislative session ending it looks like the latest effort to rein in the out of control Government Accountability Board is dead, as the state Senate will fail to act on a bill that would codify State and United States Supreme Court rulings regarding the distinction between express and issue advocacy.
Yes, the timid men and women of the legislature who created the GAB monster (some of whom want to avoid having their record criticized by ‘outside groups’) shoulder a lot of this blame. As do the self-congratulatory mainstream press that tolerates the secrecy and opaqueness of the John Doe probe and the GAB. So, too, do the retired judges who supposedly govern the GAB staff.
But the GAB partisan staffers are the rotten core of the problem.
They are a problem that should be resolved at the start of the next legislative session.
All those who loathe government secrecy and hate the Speech Police should rally for reform. And when they create the next regulatory body to oversee elections in Wisconsin, they should see to it that GAB Executive Director Kevin Kennedy, his thirty years of failure and his liberal witch-hunting minions play no role.
It is time to lay some sunshine on the First Amendment.
Let’s put the Speech Police out of business.