In "Animal Farm" of Wisconsin politics, GOP dark money stays secret, while opponent names, addresses go into black lists | WisCommunity

In "Animal Farm" of Wisconsin politics, GOP dark money stays secret, while opponent names, addresses go into black lists

As physicists from the University of Wisconsin and other institutions continue to scour the universe for signs of elusive, mysterious "dark matter," Republicans in our state and nationally continue to manufacture new ways to turn campaign cash into dark money.

Meanwhile, however, the lives, identities and privacy of Wisconsin residents -- particularly those who tend to vote other than Republican -- are increasingly an open book, one that's turning rapidly into a 1950s-style political Black List.

The double-standard in Wisconsin (and national) politics was made even more evident the past couple of weeks. First, the US Supreme Court's conservative majority blessed a conservative group's argument that yet another set of limits on campaign donations are unconstitutional because those limits interfere with free speech. That extended the court's earlier Citizens United ruling, in which corporations were designated people who have free speech rights -- increasingly, even more of those rights than real people! And some of those corporations also continue to insist that their privacy cannot be transgressed by the public interest in monitoring their behavior. Corporations and third-party campaign groups thus increasingly are the equivalent of secret, anonymous, wealthy super-citizens.  [Technically, the Supreme Court's decision also included in this category labor unions, which typically donate to political opponents of Republicans, however in significantly smaller amounts overall. Besides, the unions are much more open in disclosing their donations.]

While these super-persons can increasingly operate in the shadows, watch out when you show up to vote in Wisconsin this fall. Thanks to a new law signed by Scott Walker, "independent" election observers will be newly able to get so legally close to the sign-in tables they'll be able to watch you pen your name into the polling book, and maybe even breathe down your neck while you do it. Because, unlike one of those corporate super-citizens, YOU are not to be trusted.

And then there's a new ruling from a Wisconsin judge who just bought into another conservative group's argument that whenever a state citizen contacts his elected representative to register a comment or opinion, his or her personal ID must be divulged upon request. A state appeals court this week ordered State Sen. Jon Erpenbach (D-Middleton) to make public all names and contact information for emails his public office received in 2011 regarding what was then the Republican-proposed law virtually abolishing collective bargaining for most public employees. The appeals court cited the Wisconsin open records law and said the public has a right to know who emailed Erpenbach.

In juxtaposition, these current conservative norms amount to a furthering of this bipolar political standard: There should be few and relatively lax rules that serve Republicans and their benefactors, and a lot of red-tape rules that hassle everyone else, including Democrats. True, the super-person rules might well be taken advantage of by Democrats or other non-GOP political groups, but that doesn't mean this all adds up to a level playing field, much less a sensible one.

The Erpenbach decision sounds straghtforward, and as an open-government advocate I can even applaud it, but only in principle and not in the actual context of what's happening to American politics and elections. By "in context" I mean that double-standard problem.

To begin with, the lawsuit that led to the Wisconsin decision was filed by the MacIver Institute for Public Policy, a right-wing organization that styles itself as a think tank but more and more clearly exhibits the behavior of a political organization. MacIver's views are quite in line with current Republican ideology, if indeed the organizataion doesn't greatly help to drive that ideology. Indeed, some of MacIver's denizens are quite chummy with the current GOP power structure in the state Capitol. But that's not all.

MacIver is among state conservative "educational" groups that have been heavily involved in anonymous political campaign funding. According to the Wisconsin Democracy Campaign, group spending in the 2011 and 2012 state recall elections included $4.5 million by Americans for Prosperity/MacIver Institute. That sort of activity is, in fact, why the current John Doe investigation into possible illegal collusion between such third-party groups and political candidates, particularly Gov. Scott Walker, is underway.

It also explains why some of the third-party groups reportedly targeted by the Doe investigation have pulled out all the stops and filed lawsuits to quash it, on the increasingly ironical basis that their privacy is being violated (never mind that one of the groups violated its own privacy by outing itself as a target; a real conundrum, there).

After the recall elections, some conservative groups assembled interactive databases of the nearly million Wisconsin residents who signed recall petitions again Walker or other Republicans. These groups didn't bother to collect names of anyone who signed other petitions to recall Democrats, of course, because they were for that kind of recall. And while from Walker on down Republicans now profess to be against the recall process as written into the state Constitution, some GOP operatives still talk about the potential for future recalls, but again only in the context of recalling Democrats. One law for me, another law for thee -- or at least rhetoric that implies it.

In any event, those interactive databases of recall petitioner names and addresses have been turned by conservative groups and conservative politicians into a gigantic Wisconsin black list, one that would make proud Wisconsin's imaginary commie hunter, the late Sen. Joe McCarthy.

If you have or seek a job in state or even local government, or you have or seek a contract with government in Wisconsin, it's become clear that a conservative norm is now to consult the "black list" and cross you off consideration because, hey, you exercised your state constitutional right and signed a petition, in particular a petition aimed at Republicans. The black list includes prosecutors and judges, who under the First Amendment to the U.S. Constitution have every right to sign petitions. Republicans not only think such judges should be removed from office, they think that while in office those judges should recuse themselves anytime they deal with an issue that might involve Republicans, because, hey, they have a conflict of interest.

Maybe they might, at some point, but the GOP standard here is highly selective. It doesn't apply, for instance, to former Republican legislators or conservatives that serve on the Wisconsin Supreme Court. Nor, apparently, does it apply to Judge Mark Gundrum. Gundrum is a former Republican state legislator appointed to the appeals court by Gov. Scott Walker and based in politically red Waukesha. Gundrum handled the ruling in the appeal of the Erpenbach case.

Could a former Republican legislator like Gundrum at the appeals court or David Prosser at the state Supreme Court judge a Democrat fairly? Republicans evidently say yes. Yet, those same Republicans tried to stop the current John Doe by arguing the Doe's mix of prosecutors both Democratic and Republican couldn't fairly judge Republicans.

In any event, Republicans went shopping for a friendly judge, and Gundrum delivered after joining the appeals court. The three-member panel's unanimous decision reversed an earlier ruling by a judge in Grant County who said Erpenbach was within his rights to black out names and addresses of individuals who sent emails to his office. Subject: the union-busting bill that later was signed into law as 2011 Wisconsinn Act 10. MacIver had sought the emails, and sued when Erpenbach had his staff black out personal information.

Erpenbach was wililng to share the actual content of those emails but not all ID info. His argument in blacking out names and addresses directly referenced what happened to those citizens who signed recall petitions. His argument was that conservative interests might, as with the recalls, use the ID information to create a new blacklist. Erpenbach argued the release of that information could be used politically to embarrass or harrass people, regardless of their purpose in writing. Ordering otherwise, Judge Gundrum wrote on behalf of the appeals court:

"Whether government employees, another public official, a lobbyist, the CEO or employees of a corporation, the president or members of a union, or other individuals supporting or opposing a particular interest, awareness of who is attempting to influence public policy is of significant interest to the public." 

Fair enough. Read the judge's further comment:

"Public awareness of 'who' is attempting to influence public policy is essential for effective oversight of our government. For example, if a person or group of persons who has played a significant role in an elected official's election — by way of campaign contributions or other support — contacts a lawmaker in favor of or opposed to proposed legislation, knowledge of that information is in the public interest; perhaps even more so if the person or group also stands to benefit from or is at risk of being harmed by the legislation. Disclosure of information identifying the sender may assist in revealing such a connection."

Also reasonable, although it makes you wonder if the judge might think the secret ballot is too unhelpful to the public interest and politicians, as well. More to the point, to be effective as a standard of government transparency, his statement needs to applied across the board, not just for emails sent to public officeholders in the state legislature.

In an earlier case somewhat similar to the Erpenbach matter, state Sen. Leah Vukmir (R-Wauwatosa) agreed in a court settlement to release emails she was withholding -- only she had been withholding them in their entirety. The emails in that case related to communciations she had with the American Legislative Exchange Council (ALEC), the national conservative group that produces cookie-cutter legislation for state lawmakers to pass.

Logic says the transparency standard clearly also applies to secret emails sent to and from Scott Walker when he was Milwaukee County executive, via a secret email system his public staff set up in his public office using public resources -- in effect an attempt to completely evade Gundrum's more recent standard. The Walker incident led to felony charges against some of his staff in an earlier John Doe case.

One of the other judges on the appeals panel agreed with Gundrum and the third judge, but qualified that. Here's what Judge Paul Reilly had to say:

"[The appeals court ruling] puts all citizens on notice that when they communicate their political views to their legislators, they should be prepared to see those communications, with their names attached to them, publicized by whatever means a requester might wish — newspaper, news release, searchable online database, etc. My fear is that citizens who want to express an opinion to their own legislators, but who want their communications to remain private, will either refrain from voicing their opinions or will use the anonymous social media that is the antithesis of civil discourse."

This, mind you, is happening in a techno-culture where people are increasingly worried that vast data-collection systems run by the private sector, government, campaigns and criminals are mining their personal information. If this fear grows too much, a plurality of Americans may simply opt out of the political process altogether. Of course that's already true of some citizens.

You might regard the development of political black lists -- made far easier by computer technology, selective laws and court cases -- as a sort of innoculation by politicians against interference. It's like a re-imagining of the protection rackets that Al Capone and his team used to keep people in line with wallets open during the 1930s: Hey, youse, it'd be a real, real shame of something bad happened to your credit rating. Or your good name. It's already the case that politically partisan, denial-of-service attacks occur on the Internet against opposition web sites, and we're not just talking the NSA versus Chinese intelligence, here. Advancing computer tech and surveillance systems will mean this kind of attack can be targeted right on down to individuals, with ease.

In the above context, the seemingly rational but non-contextual standard of open records thus serves to dumb down democracy, but only because some politicians have begun to massage computer-based personal information in order to intimidate. People in this state already have been denied jobs because of their openly expressed political views, both in the public and private sectors. Why engage in the political process at all if your only reward is harrassment, shunning, and career threats? But the truly indispensable component in this race to the bottom: Political organizations that secretly yearn for more elitest, top-down control of American society, and who have learned they win when they discourage open citizen participation in the public debate. It's disturbingly akin to the tactics the Taliban use in Afghanistan, only there, actual guns and not just figurative ones tend to come out right away.

Beyond that, the need for transparency is not just essential with respect to public officeholders and their contacts with individual constituents. It's even more essential in the case of those elites who, equating free speech with money, anonymously donate large sums to interest groups that then effectively launder the donations and pass them along to candidates. The candidates know who is backing them. The rest of us don't.  The US Supreme Court, packed with a Republican majority, just made that hidden process even more obscure. Yet we're supposed to be outraged about individual citizens sending emails to their elected representatives, hoping for some modicum of privacy.

Meanwhile, the state's C-CAP computer database, that records much data on anyone who's had dealings with the courts in Wisconsin, is a great tooll for legitimate professional purposes, but it also serves as a lingering black list for anyone who had even a minor transgression -- even one that never ended up in a conviction or fine. Because the information is public and once online, it stays there.

If you can't persuade enough people to vote your way, and you can't keep enough of them from the polls, why not just marginalize them into submission by gumming up the works. Or, failing that, employing black lists and other negative inducements to encourage their withdrawal from the electoral battlefield? Either out of fear of exposure, or just plain disgust, voters increasingly do withdraw. In our modern culture, as in medieval times, chaos and uncertainty are exceptionally efficient political tools, but they require a broad bladed approach that ends up hacking through democracy itself. Then again, if you don't really like democracy -- if you're inclined towards authoritarianism -- why would you care about the negative side effects?

Where does this end? With third-party groups of all persuasions demanding through open records laws copies of every email every legislator gets or sends out? The resulting flood of information preened and tweaked to reveal patterns out there in the electorate, which can be used in campaigns right down to each individual voter? Will the typical citizen's life now simply be an open book, manipulated not just by advertisers and campaigners but also by the new breed of negative-influence peddlers?

If sunlight is truly a disinfectant, it should not only be wealthy elites and their organizations who are allowed to shade their balding heads. Especially not while other laws create a chilling effect that turns off more and more citizens, many of whom would like to be heard but don't want to be dragged through the mud for expressing themselves.

An earlier US Supreme Court once said the First Amendment is not absolute. You can't, for instance, yell fire in a crowded theater when there is no fire, then claim free-speech protection. But that's what the conservative political machine is doing right now. Your speech? It opens you to total scrutiny from these conservatives. But the kind of "speech" that conservatives regard as most important -- the gobs of money they spend trying to take over the government -- is to their way of thinking none of your damned business.

Billionaire political donors like the Koch brothers simply don't want you to know anything about their activity. Out-of-state outfits like ALEC want to write legislation elsewhere and covertly forward it to Wisconsin Republicans for introduction and passage, without your knowing a thing about the measure's origin.

Thus, the supposedly principled Republican Party and its enablers are both for and against transparency in government and politics, depending almost entirely on whether it benefits them in particular situations. 

Even while the MacIver Institute pushed the Erpenbach matter into court arguing the public has a right know, it effectively endorsed and engaged in political activity about which the public apparently shouldn't have a similar right to know. True, the US Supreme Court is on MacIver's side with respect to anonymous campaign donations, but how did the cretinous, conservative majority on that court rise to dominance? By similar political machines and tools that in an earlier era were regarded in this country as illegal and anti-American.  

Shadow government and shadow campaigns fueled by dark money threaten us all on a massive scale, and there seems little means right now to stop the drive toward even more shady activity, even more corruption. Meanwhile, the electorate is now on notice that we are supposed to be more upset by what one among us wrote to his or her legislator in a letter or email. Because that person might be a member of a union! Or a Demcrat! Or some other black-listed group. The rulers of the old USSR would recognize this system.


April 10, 2014 - 12:33pm