Tag Archives: transparency

Baldwin cosponsors bill requiring presidential nominees to release tax returns

U.S. Sen. Tammy Baldwin, D-Wis., is co-sponsoring legislation introduced by Democrat Ron Wyden of Oregon directing presidential nominees to release recent tax returns in order to give the public honest insights into the candidate’s actions and values.

The bill is the Presidential Tax Transparency Act and it would require that, within 15 days of becoming the nominee at a party convention, a candidate must release his or her most recent three years of tax returns to the Federal Election Commission.

Should the candidate refuse to comply, the treasury secretary would provide the tax returns to the FEC for public release.

Republican presidential candidate Donald Trump has refused to release his returns, despite repeated calls from his political rivals and the news media.

Baldwin, in a statement, said, “Wisconsin has a strong tradition of supporting open government, transparency and accountability. For nearly 40 years presidential candidates from major political parties have respected this tradition and voluntarily released tax returns during the campaign.”

She continued, “I believe this legislation will strengthen the public’s right to know and prevent candidates for commander in chief from keeping their finances and personal tax returns in the dark.”

A one-page summary of the Presidential Tax Transparency Act is available here.

The bill text is available here.

ACLU calls for transparency in investigation of Milwaukee shooting

In response the Wisconsin Department of Justice declaring it will not release video footage of the officer-involved fatal shooting in Milwaukee, the American Civil Liberties Union of Wisconsin again called for transparency in the investigation of the underlying incident.  ACLU executive director Chris Ahmuty wrote the following letter to Attorney General Brad Schimel:

Dear Attorney General Schimel,

It is time for you and your agency to give the public more information about your investigation into the officer-involved fatal shooting of Mr. Sylville Smith on August 13, 2016 in Milwaukee’s Sherman Park neighborhood.

In an August 14, 2016 news release you stated “The Wisconsin Department of Justice Division of Criminal Investigation (DCI), at the request of the Milwaukee Police Department, is leading the investigation of yesterday’s officer involved death.  DOJ will work expeditiously to ensure a thorough and transparent gathering of the facts.”  According to an August 16, 2016 story in the Milwaukee Journal Sentinel, your spokesperson said, “In recognition of the violence that has affected Milwaukee residents for the last 48 hours, DOJ is working expeditiously, and within the parameters of the law, to provide the community a transparent view of the events that took place on August 13 in a timely manner.  However, we are not prepared to release any of the video evidence at this time.”

To date you have promised transparency, but provided little information on your investigation to the community and Mr. Smith’s grieving family and friends, who seek understanding of the deadly incident that transpired on August 13.

In your news release and your spokesperson’s statement as reported in the media, you don’t even mention Sylville Smith’s name.  It is important for you to recognize that a Milwaukee police officer has killed a specific person, with family, friends and neighbors.

You have said that you will not “release any of the video evidence at this time.” Failure to timely release video of similar incidents has been a source of unrest in Chicago, leading officials there to adopt a policy of prompt release of video.  Note that Milwaukee Police Chief Edward Flynn has already expressed conclusions drawn from a video the public has not been allowed to see.

You have remained silent regarding a host of other questions that would help the public ascertain whether your agency is conducting “a thorough and transparent gathering of facts.”  We ask that you please answer the following questions about your investigation:

  1. Are any of the investigators/analysts assigned to this case former Milwaukee Police Department employees?
  2. Has DCI interviewed the officer(s) who encountered Mr. Smith on August 13?  If so, when were the officers interviewed?
  3. Has DCI or MPD interviewed neighbors/witnesses?
  4. Who gets access to Smith’s companion (Is he in custody?  Does he have an attorney?)
  5. Does DCI have the body worn camera(s) (BWC)?  Does it have access to evidence.com?
  6. Did the officer or other witnesses review the BWC or dash cam video before your agents interviewed them?
  7. Was the officer given a blood test?
  8. What was the basis for the stop?  Are there radio communications that would reflect the basis for the stop?
  9. Is there audio from the dash cam or from nearby Shotspotter microphones?
  10. When will the medical examiner issue a report?

Nearly all of these questions are procedural and address aspects of your gathering of facts.  None call for details regarding the evidence, much less conclusions.

Please answer these questions.  If you refuse to answer any of these questions, please let me know your justification for refusing at this time.

Thank you.  I hope to hear from you shortly.

 

Supreme Court pick Merrick Garland fits no easy mold

President Barack Obama’s nominee for the U.S. Supreme Court, Merrick Garland, has been characterized as a moderate who, if confirmed, would nudge his divided colleagues slightly to the left because he would replace conservative stalwart Antonin Scalia.

But Garland will not necessarily come down with the more liberal justices in every area, particularly on criminal justice issues.

An Associated Press review of Garland’s record on the U.S. Court of Appeals for the District of Columbia Circuit — more than 5,000 rulings and 17,000 pages since 1997 — suggests he is a judge who only rarely, and perhaps reluctantly, has found himself at odds with the government agencies that appear before him.

On the Supreme Court, Garland probably would frustrate the political left and right on alternate days.

He is apt to infuriate conservatives as a champion of union rights, his court record indicates, and, as a believer in public access to government records, to annoy those who defend government secrecy.

He is likely to offend liberals with a readiness to turn back constitutional challenges to criminal prosecutions and perhaps claims of workplace discrimination.

He probably would frustrate partisans on both sides, regardless of which party controls the White House, with steadfast deference to the rules and interpretations of government bureaucrats, whatever their impact.

Summaries of Garland’s decisions on critical issues:

CRIMINAL JUSTICE

Many of Garland’s rulings in criminal cases reflect his 12 years as a federal prosecutor or a senior official in the Justice Department’s criminal division.

In dozens of decisions, he upheld lower court rulings that denied defendants’ attempts to suppress evidence because of alleged illegal search and seizure by police. He typically upheld prison sentences imposed by lower courts.

In a 1999 decision, for example, Garland wrote for the court’s majority that police in Washington, D.C., were within their rights to search a car after spotting a 6-inch dagger next to a front seat. They then found a loaded .45-caliber handgun. Defendant Morris Christian’s lawyers contended the search was unjustified.

“First, as appellate judges we do not second-guess a street officer’s assessment about the order in which he should secure potential threats,” Garland wrote. “To the contrary, we must defer to his quick decision as to how to protect himself and others from possible danger.”

Garland also found that U.S. Park Police were correct to have searched Warren Turner’s car trunk after they found a pot-filled “blunt” in the passenger compartment. Cocaine base was found in the trunk, leading to Turner’s conviction on drug distribution charges.

Turner claimed the only evidence officers had before the trunk search was marijuana he had for personal use, but Garland found that “too fine” a line. There was “a ‘fair probability’ that Turner may have hidden additional drugs not necessary for his current consumption in areas out of plain sight, including the trunk of his car,” he wrote.

In a 2000 case, Garland wrote that U.S. Customs agents were not required to get a warrant to install a tracking device in a package shipped from Thailand that contained heroin. The man who opened the package in a taxi in Washington, Abdul Gbemisola, claimed the drug evidence was obtained improperly.

Garland found that no warrant was required. “Adding the tracking device did not require any additional intrusion into anyone’s reasonable expectation of privacy,” he wrote. “One cannot have a reasonable expectation of privacy concerning an act performed within the visual range of a complete stranger.”

Sometimes, Garland wrote or joined rulings that sided with defendants.

In a 1999 case, Garland wrote the opinion vacating one of Andre Clark’s two gun-related convictions — one for possessing a gun and the second for the ammunition inside it. Garland reasoned that was two convictions for the same offense.

“Indeed, if the statute were read that way, it might just as readily permit 14 charges against Clark, one for the gun and one for each of its 13 bullets,” he wrote.

In a 2006 case, Garland wrote that prosecutors were wrong to pursue more than $63,000 in restitution from a man convicted of making a false statement to the FBI but acquitted of the main money-laundering charge. The ruling overturned a lower court’s decision that Daniel Dorcely of Washington should have to pay restitution despite the acquittal on the money count.

criminal justiceThe Supreme Court, Garland wrote, “made clear that a defendant charged with multiple offenses but convicted of only one offense cannot be ordered to pay restitution for losses resulting from the other charged offenses.”

A rare dissent in a criminal justice case came in 2007, when the full appeals court overturned the conviction of a D.C. police detective for accepting an illegal gratuity. The detective, Nelson Valdes, had been targeted in a federal sting operation for accepting money to look up license plates in a police database.

The majority found Valdes had not accepted money for an illegal act, so no crime was committed. Garland disagreed.

“A guy walks into a bar,” his dissent opens, referring to the first meeting between Valdes and a man who described himself as a “federal judge.”

“The detective cannot know who the ‘judge’ really is, or why he wants the information. He cannot know whether the ‘judge’ is a loan shark seeking to find and punish his debtors … nonetheless, in the end he takes the cash — repeatedly — and gives the ‘judge’ the information he seeks,” Garland wrote.

The majority’s decision overturning the conviction, he added, “undermines the prosecution of public corruption.”

GUN CASES

Garland’s votes in two gun cases have fueled opposition from gun rights advocates, who have announced they oppose his nomination.

In one, Garland voted to have the entire appeals court review a ruling by a three-judge panel that struck down the ban on handguns in the nation’s capital. Because the entire court declined to review the case, it’s unclear how Garland would have voted on the constitutionality of the gun ban.

The Supreme Court later sided with the three-judge panel, with the 5-4 majority opinion written by Scalia, who died Feb. 13.

In the other case, Garland joined a ruling that upheld a Justice Department rule allowing the federal agency to temporarily save gun buyers’ records. The National Rifle Association had sued, arguing that the Brady Handgun Violence Act required immediate destruction of personal information related to gun purchases.

But the department said it was important to keep some of the information for six months at most to allow audits of the background check system to ensure both accuracy and privacy. A federal district court judge dismissed the NRA’s complaint, and the appeals court affirmed that decision.

GUANTANAMO DETAINEES

Garland played a central role in deciding cases concerning detainees at the U.S. detention facility at Guantanamo Bay, Cuba, for more than a decade. He largely deferred to the government’s arguments in preventing their access to the courts and their release — with one notable exception.

In 2003, Garland joined a majority opinion ruling that those held at Guantanamo could not access lawyers or challenge in federal court the legality of their detentions. The decision was based on Supreme Court precedent that dictated that U.S. civilian courts lacked jurisdiction to hear challenges brought by detainees who were foreigners not present on U.S. soil.

The Supreme Court would overturn that ruling the following year in Rasul v. Bush, finding that detainees were entitled to challenge their detention in federal court under the habeas corpus statute.

images - gun cases“Initially, Judge Garland was overly cautious in the detainee cases in not seeing the broader, fundamental interest at stake,” said Baher Azmy, legal director of the New York-based nonprofit Center for Constitutional Rights, which has represented numerous detainees before the district appeals court. “The D.C. Circuit has been so consistently reflexively pro-government, and overall Garland has not staked out a particularly helpful position there.”

In June 2006, the Supreme Court ruled that the Bush administration’s planned military commissions at Guantanamo violated U.S. and international law, allowing detainees to pursue their cases in federal courts. Congress and the Bush administration came up with new rules for the military trials later that year.

In 2008, the Supreme Court ruled that foreigners held at Guantanamo had constitutional rights to challenge their detentions in civilian courts. By June of that year, Garland sat on the three-judge panel that was offered the first civilian judicial review of the government’s evidence for holding the detainees.

Garland wrote majority opinion in that case, brought by Huzaifa Parhat, a detainee who was a member of a Chinese Muslim minority group. Parhat should be released, transferred or be given a new military hearing, Garland wrote, because the government’s intelligence was unreliable.

“The government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents,” Garland wrote. “We are not persuaded.”

Attorneys for detainees filed a flurry of cases seeking their clients’ release following that ruling, but when government lawyers appealed, the D.C. Circuit typically came down on the side of continued detention.

For example, Garland wrote a majority opinion upholding a lower court’s denial of detainee Shawali Khan’s petition for habeas corpus in 2011, citing “particularly incriminating evidence” that linked Khan to a force associated with al-Qaida and the Taliban.

Three years later, Garland joined a majority opinion upholding a Guantanamo policy that allowed guards to search the genitals of detainees meeting with their lawyers. The opinion said Supreme Court precedent required deference to the government’s view that such policies were “rationally related to security.”

“Garland essentially has been a moderate who applied the law as it existed at the time in a faithful manner,” said David Cole, a law professor at Georgetown. “Some people may not like the law, but that is another story.”

GOVERNMENT REGULATIONS

Garland often shows deference to federal agencies but has ruled against the government in some cases involving government regulations.

He was part of a 2010 decision limiting the Food and Drug Administration’s regulation of electronic cigarettes. The appeals panel ruled that the devices, which create a nicotine vapor inhaled by users, should be regulated as tobacco products rather than as drug delivery devices.

“In the absence of an authoritative agency interpretation, I conclude that, unless a product derived from tobacco is marketed for therapeutic purposes, the FDA may regulate it only under the provisions of the Tobacco Control Act,” Garland wrote in a concurring opinion.

He has joined decisions that struck down a Federal Energy Regulatory Commission increase in rental fees for hydropower projects on federal land; vacated a Federal Communications Commission penalty against AT&T related to long-distance charges; and sided with the United Mine Workers, which alleged that the Mine Safety and Health Administration had withdrawn a proposed air quality rule without explanation.

There’s an occasional glimpse of humor in his regulatory writings for the court.

One came in an opinion that sided with the Federal Aviation Administration and the National Transportation Safety Board when the agencies determined a pilot was not medically fit to fly due to a history of problems with consciousness and awareness. Garland wrote that the best the pilot’s own medical expert could say about one incident, which occurred on a Boeing 757, was that the pilot “was acting like a teenager.”

“Had the National Transportation Safety Board (NTSB) believed that expert, it might well have taken away the ‘teenager’s’ jet keys on that ground alone,” he wrote.

In a case involving a transit system providing transportation to professional baseball games, Garland wrote, “This appeal raises the following question: Can Congress constitutionally permit a federally-subsidized transit system to take the residents of Seattle out to the ball game?” The appeals court, citing goals of accommodating disabled fans and restoring affordable service, allowed the transit system to resume services to Seattle Mariners games over the objections of private charter carriers.

ENVIRONMENTAL ISSUES

As an appeals judge, Garland has joined in decisions that protected water from boat sewage, families from lead paint and even an endangered toad from land development.

But he has not sided so much with environmentalists as with government regulators. His rulings have backed federal agencies that allowed mines to pollute the air, swans to be killed, landfill to foul wetlands and storage of hazardous waste without permits.

The AP found at least 19 Garland cases since 1997 that clearly leaned either toward or against environmental controls. Of those, 10 favored stronger regulation while nine did the opposite. Only three went against government agencies that were under challenge.

environmental issuesIn December 2006, Garland joined a ruling that upheld the Environmental Protection Agency’s crackdown on power plant pollution that forms haze over natural areas.

In November 2012, he again backed an EPA regulation in a ruling that said it was enough that the agency’s legal interpretation “was not plainly erroneous or inconsistent.” This time, though, the agency had decided against air pollution controls for leach fields and other waste sites at gold mines.

The pattern is the same in water pollution cases. In February 2003, Garland joined the court in letting the EPA impose radioactivity limits for drinking water. The rules had been challenged by industry groups.

Then, in November 2011, Garland was part of a ruling that supported the Army Corps of Engineers and generally sided with developers of a Florida shopping mall. The ruling allowed fill to be dumped into wetlands, despite the heated objections of conservationists, though it left a single question open on potential impact to rare eastern indigo snakes.

In April 2003, Garland wrote an opinion that upheld a Fish and Wildlife Service decision. This time, he unequivocally favored wildlife protection, blocking a plan to build a California housing development that threatened rare arroyo southwestern toads.

In December 2006, though, when conservationists tried to stop the killing of male mute swans to manage the Chesapeake Bay population, Garland backed an opinion approving the plan. As usual, he sided with the regulating agency, in this case the Interior Department.

THE GLOBAL VIEW

In several high-profile cases, Garland sided with victims and their families when they sued foreign governments, terrorist groups and others for war and terrorism-related damages.

In one of Garland’s strongest dissents, he sided with Iraqi nationals who sued two U.S. contractors involved in the notorious Abu Ghraib prison scandal. In a 2-1 decision, the federal appeals court in 2009 dismissed the lawsuit, saying the companies had immunity as government contractors.

But Garland disagreed, saying no act of Congress barred the plaintiffs from suing private contractors “who were neither soldiers nor civilian government employees.”

“The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison,” Garland wrote.

Garland said neither Presidents George W. Bush nor Barack Obama suggested the suit would “interfere with the nation’s foreign policy or the Executive’s ability to wage war.”

Four years earlier, Garland wrote an opinion reinstating a suit against al-Qaida and Osama bin Laden filed by Kenyan victims of 1998 U.S. Embassy bombing in Nairobi. The victims sued bin Laden and his terrorist group for orchestrating the bombing that killed 200 people, including 12 Americans.

The district court had dismissed the suit, saying federal courts lacked jurisdiction. Garland disagreed. “The defendants engaged in ‘unabashedly malignant actions directed at (and) felt’ in this country. Bin Laden and al Qaeda should therefore ‘reasonably anticipate being hauled into court’ here by those injured as a result of those actions,” Garland wrote.

In another case, Garland was joined by two other justices, including now-Supreme Court Chief Justice John Roberts, to allow the brother of a slain hostage to sue Libya for his killing.

Peter Kilburn had been an instructor and librarian at American University in Beirut, Lebanon, when he was kidnapped by Hezbollah in 1984. Two years later, in retaliation for a Berlin nightclub bombing that killed two American soldiers, the U.S. bombed Libya — and Libya sought revenge.

A group linked to Libyan strongman Moammar Gadhafi paid Hezbollah $3 million for Kilburn, then murdered Kilburn and left his body along a roadside near Beirut with the bodies of two British hostages.

Kilburn’s brother, Blake, later sued Libya, and the country tried to have the suit dismissed on grounds of sovereign immunity. A federal court denied Libya’s motion and Garland’s court affirmed that ruling. His opinion held that the suit could go forward because of a terrorism exception to the Foreign Sovereign Immunities Act.

CIVIL RIGHTS

Many of the civil rights cases that have come before Garland are about workplace discrimination, though some have had broader implications.

He was part of a 2004 decision that found a transit authority had waived its immunity from federal lawsuits under the Rehabilitation Act by accepting federal money.

The ruling came in a suit filed by an electrician who said he was fired by the Washington Metropolitan Area Transit Authority because of his bipolar disorder. The transit authority countered that he had been fired for insubordination and other behavior.

The authority, created by an interstate compact among Maryland, Virginia and the District of Columbia, argued that it was legally immune to a suit for disability-based discrimination.

The three-judge panel split 2-1, with Garland and Roberts saying the transit authority had waived immunity by accepting the funds. “Congress reasonably can insist that decisions regarding the expenditure of federal funds not be based on irrational discrimination,” Garland wrote.

In 2002, he was part of a panel that reversed a district court that had favored the government in a suit by Catholic prisoners who claimed they were being denied religious rights to drink small amounts of wine during Communion. The panel sent the case back to the lower court to determine whether the prisoners met the threshold of showing a substantial burden on the free exercise of their religion.

In the case of an inmate who sued for sexual harassment at the D.C. jail, Garland ruled to uphold part of her award, but threw out punitive damages. The prisoner said she had been sexually harassed by corrections officers and inmates, including allegations that she was forced by corrections officers to dance naked on a table in front of hundreds of chanting, jeering inmates.

She was awarded $350,000 in compensatory damages in a lower court as well as $5 million in punitive damages. But the punitive damages were reversed because Garland said the district was immune from such damages.

WORKERS’ RIGHTS

When it comes to workers’ rights, many of Garland’s cases originated from the National Labor Relations Board. In a majority of those cases, he sided with labor board rulings, which usually supported pro-labor positions. When Garland dissented from his appeals court colleagues or disagreed with a regulatory ruling, it was usually in support of workers or a union.

His dissent in a 2009 case involving FedEx drivers and the shipping giant is a case in point. Drivers for FedEx’s home-delivery unit filed a complaint with the labor board after the company refused to negotiate with the union they elected to represent them in collective bargaining.

The company argued that the drivers were independent contractors, not employees. As evidence, FedEx showed that home-delivery drivers had the option of selling their routes and hiring helpers.

But the labor board held that the drivers were employees because they were an essential part of FedEx’s home-delivery business and because the company exercised substantial control over them.

In a 2-1 ruling, the appeals court overturned the labor board, finding that FedEx home-delivery drivers were independent contractors because they have “entrepreneurial potential,” can operate multiple routes and sell routes.

Garland disagreed, saying the drivers had little “entrepreneurial opportunity” and noted that FedEx actually put limits on drivers’ ability to sell routes. He said FedEx showed only a rare case or two of “a driver seizing an entrepreneurial opportunity.”

Two years earlier, Garland ruled against a proposed federal rule to increase the driving hours for long-haul truck drivers, citing safety concerns. The consumer group Public Citizen had opposed the Federal Motor Carrier Safety Administration’s regulation to increase truck drivers’ daily driving limits from 10 hours to 11 hours as well as a provision to permit an off-duty period of 34 hours to restart the weekly on-duty limits. It said the FMCSA failed to provide an opportunity to comment on the methodology of the crash risk.

images - workers rightsCiting mostly procedural shortcomings, the appeals court granted the group’s petition and vacated the contested portions of the rule. Garland added that the agency’s rules could not be upheld without important aspects of its methodology being fully examined.

In other rulings, Garland:

—Joined a 2004 decision upholding a NLRB finding against a company that refused to recognize its workers’ union after moving them to a different location.

—Upheld a NLRB finding in favor of a woman who handed out fliers at work after hours that expressed concern over how the company was handling layoffs.

—Was part of a 2011 decision that supported an NLRB decision in favor of two employees fired for verbal outbursts against a policy they opposed as unsafe.

OPEN GOVERNMENT

Garland has staked out strong views for keeping government transparent and accountable to the public.

He worried in one of his rare dissents in July 2004 that fellow judges might have given the impression that a Freedom of Information request cannot expose prices paid by federal agencies to contractors. He questioned whether the law really says that and added that, if so, it “should be an exception rather than the rule.”

In September 2009, Garland wrote a powerful defense of the public’s right to know who lobbies Congress. He noted that the Supreme Court long had championed this principle and added that “nothing has transpired in the last half century to suggest that the national interest in the public disclosure of lobbying information is any less vital.”

But he also supported agencies that failed to hand over records. Sometimes, he agreed that they did reasonable searches that simply failed to turn up anything relevant.

In 12 of at least 22 open government cases that came before him since 1997, he has leaned in favor of access, opening the door to release government documents, electronic calendars, audiotapes and other material.

In March 2013, Garland wrote an opinion forcing deeper review of the CIA’s refusal to turn over records on its drone attacks to a civil rights group. Garland said that the intelligence agency could not simply cite national security.

In another case, Garland did not let possible mistakes in records prevent any chance of a full release. In November 2006, he joined in ordering a lower court to reconsider denial of a request for names of people in the U.S. illegally and being held states on behalf of federal authorities. The Justice Department had said releasing such records might embarrass the detainees and unfairly brand misidentified people. But Garland and fellow judges said that risk needed to be formally evaluated — not just asserted.

In November 2005, Garland parted with the court majority in a case involving government scientist Wen Ho Lee, who was largely exonerated of spying accusations in a case that made headlines. Garland urged the court to reconsider a reporter’s effort to protect a confidential source of a leak about Lee, saying the court should be more mindful to the First Amendment and “the importance of a vigorous press.”

In May 2007, Garland voted with the losing side in a ruling in favor of Ohio Republican Rep. John Boehner, who later became speaker of the House. Boehner had sued Rep. Jim McDermott, a Democrat from Washington state, for releasing to reporters an illegal recording of a conference call among Republican politicians. Garland joined with other court dissenters who argued that, though the recording was illegally made, McDermott had not violated the law by accepting it.

But Garland did not always opt for openness in politically charged cases. In October 2001, he joined colleagues in blocking release of thousands of pages of Internal Revenue Service documents. A conservative nonprofit law firm wanted the records to examine claims that the agency had unfairly targeted conservative groups for audits.

Associated Press writers Garance Burke, Gene Johnson, Michael Graczyk and Larry Neumeister contributed to this story along with AP news researcher Rhonda Shafner.

 

ACLU concern for Milwaukee PD covering name tags

The ACLU of Wisconsin expressed concern that once again the Milwaukee Police are covering up their name tags for no good reason, contrary to department policy and hindering any efforts at increased transparency in the process.

This kind of behavior will do nothing but draw even clearer lines of division between the MPD and the community it purports to serve.

As evidenced by the police show of force on April 3 at UW-Milwaukee, individual police officers and the major incident response team  too often cover up their name tags while deployed in public.  This is a flagrant violation of an MPD policy that is already weak and rarely enforced.

When Milwaukeeans are peacefully exercising their rights to free speech and assembly, the MPD should do everything in its power to refrain from intimidating members of the public from expressing themselves.

By covering up their nametags, the officers communicated an implicit threat that they may engage in practices for which they do not want to be held accountable.

The ACLU of Wisconsin urges the MPD to better train and supervise its officers, including those assigned to demonstrations protected by the First Amendment, to maintain transparency and avoid sending harmful messages to the public.

Chris Ahmuty is the executive director of the ACLU of Wisconsin.

In the sunshine: Open records and open government

Journalists come to their profession motivated to serve the public good, protect the public welfare and strengthen the Fourth Estate.

Chief among our concerns as reporters, editors and publishers is safeguarding open records and open government. We cannot have good government without an open government, without government that operates visibly, in the sunlight.

James Madison, the father of the U.S. Constitution, wrote “consent of the governed” requires that the people be able to “arm themselves with the power which knowledge gives.”

Each March, for Madison’s birthday, we celebrate Sunshine Week. Journalists and others who work in media, along with our press associations, watchdog organizations and civil liberties groups, trumpet the value of transparency and warn against the damage that society suffers without it, such as during the dark days of the notorious Nixon years.

Sunshine Week dates to Sunshine Sunday in 2002, which came in response to efforts to carve up one of the strongest public records laws in the country and create new records exemptions in Florida.

By 2005, the sunshine movement had gone national.

Keeping government in the sunshine is not a left or right issue or a partisan matter. For proof, look to the Open Government Traveling Show making its way around Wisconsin. To present 90-minute programs on the open records law, the Wisconsin Freedom of Information Council and the Madison chapter of the Society of Professional Journalists are joining with the liberal Wisconsin Democracy Campaign and the Center for Media and Democracy and the conservative MacIver Institute for Public Policy and the Wisconsin Institute for Law and Liberty.

Representatives of those groups, as well as Madison attorney April Barker, are traveling March 15–17 to La Crosse, Eau Claire, Wausau, Green Bay, Appleton, Sheboygan, Waukesha and Janesville to talk about the freedom of information and protecting public access to government records. The Wisconsin Center for Investigative Journalism also is involved.

In Wisconsin, we’re fighting to protect our laws from an administration that’s shown a blatant disregard for the public’s right to know.

We united last summer to defeat an overhaul of the state public records law, dodging a sneak attack on open government that Republicans launched as we celebrated the country’s independence.

Yet, we must remain vigilant because attacks on open government continue in Wisconsin.

Remember, every citizen in our participatory democracy has an inherent right to access government meetings and public records. Open and accessible government is vital to establishing and maintaining the people’s trust and confidence in lawmakers and other elected officials. Without such knowledge, the people are powerless.

For Sunshine Week, we encourage you to share a pledge with your elected officials and appointed clerks who keep government records:

  • Government meetings must be properly promoted and open to the public.
  • Government agencies or departments must accept, as a minimum, information requests by phone, mail, over the counter or online.
  • Information requests must be responded to promptly.
  • Government departments and agencies must keep a log of information requests.
  • Governments must post on-site and online records that are likely to be the subject of repeated requests, including contracts that exceed $5,000.

Sunshine Week is for all of us to celebrate. Catch some rays.

Year in Review: The assault on democracy in Wisconsin during 2015

The corrupt status quo in Wisconsin not only prevailed this autumn, it triumphed completely. The majority party in the Assembly and Senate moved Wisconsin far back into the past, vanquishing more than 100 years of transparency and sensible limits on special interest political money — reforms which, in part, date back to Gov. Robert M. La Follette Sr.

This assault on democracy, while supported and encouraged by Gov. Scott Walker, was largely the handiwork of Assembly Speaker Robin Vos, State Senate Majority Leader Scott Fitzgerald and a cadre of hyper-partisan Republican legislators whose lust for total and absolute political power trumps any lingering respect they may have for bipartisanship and for open, accountable and honest state government.

The destruction of the 8-year-old, nonpartisan Government Accountability Board was based on discredited charges, false premises, character assassination and outright falsehoods. The enactment into law of both the GAB destruction (AB 388) and campaign finance deform (AB 387) measures, in combination with the recently enacted law to exempt political crimes from being investigated under the state’s John Doe process, will combine to allow political corruption to take root and flourish in Wisconsin. 

Interestingly, the 12 GOP state senators who voted to establish the GAB in 2007 voted to dismantle it in 2015. Nothing changed in the intervening eight years except the politics. Those 12 state senators were all for the GAB before they were against it.

The expiring legislative session will be remembered as one of the darkest chapters in our state’s 167-year history. It will go down in the books as the year that accountable and transparent state government was systematically dismantled in favor of hyper-partisan political advantage and revenge.

The entire process under which AB 387 and AB 388 were passed was defiantly undemocratic. They were first unveiled in October, fast-tracked through a single public hearing, then rammed through committees and rushed to the floor of the Wisconsin Assembly. The process was among the most abusive, disrespectful and secretive in the history of the Legislature.

Republican legislative proponents of AB 387/SB 292 have continually made the completely false and erroneous claim that they “had to” craft this legislation in order to bring Wisconsin into “compliance” with the Citizens United v. FEC decision of 2010 and because of other court decisions since. While some revisions to Wisconsin’s decades-old campaign finance law are necessary, the revisions in this legislation most certainly are not required. Coordination can still be limited and disclosure can certainly be required. 

The hyped-up charges and accusations made against longtime State Elections Board and GAB director Kevin Kennedy and against the retired judges on the board were vicious, scurrilous, hyperbolic, exaggerated and largely just untrue. But the right-wing echo chamber faithfully repeated the misinformation, the real facts be damned.

And there were other, more practical, hyper-partisan political reasons to destroy the GAB. Revenge and the unquenchable thirst for absolute control over a state agency that had the independent power to investigate political corruption trumped the truth. The GAB destruction legislation:

• Gets rid of the six nonpartisan judges and replaces them with two six-member commissions, one for elections and one for ethics, composed of partisan political appointees — three Republicans and three Democrats. That all but guarantees tied votes and, therefore, gridlock and inaction.

• Gets rid of Kevin Kennedy, who has overseen elections and campaign finance law in Wisconsin for more than 30 years, capably and in a scrupulously nonpartisan manner. He’ll be replaced by two administrators selected by partisan leaders.

• Most significantly, it eliminates the independent funding for investigations into possible political corruption. This was the most critical and central provision of the creation of the GAB in 2007. Without it, the GAB is under the complete control of the legislative leadership.

An independent stream of funding for investigations acted as a huge preventative tool for corruption in the Capitol. Without it, the GAB will be feared by no one and ignored by most. It will be transformed into another Wisconsin Economic Development Corporation — a toothless, ineffective state agency with no ability to effectively enforce election, campaign finance, ethics and lobbying laws. And it will likely be utilized as a tool to aid in the achievement of the partisan political goals of the leaders of the Legislature and the governor.

These profoundly anti-democratic measures are not the sum total of the majority party’s assault on good government. Renewed attempts to weaken and even eviscerate our state’s open records laws, as well as to destroy the long effective and respected nonpartisan Legislative Audit Bureau with partisan political appointees in all state agencies, is in the works for early 2016.

There may be more.

Thomas Jefferson said the price of liberty is eternal vigilance.

And so it is that Wisconsinites must not only be more vigilant to stave off further erosion of our democratic institutions, we must also organize, register to vote, turn out and work as never before to take back Wisconsin from those who seek to destroy it.

Jay Heck has been the executive director of Common Cause in Wisconsin since 1996. CC/WI is the state’s largest nonpartisan citizens reform political advocacy organization with more than 6,000 members and activists in its network. Call 608-256-2682 or visit commoncausewisconsin.org.

GOP seeks to ram through laws undoing Wisconsin’s good government tradition

In times of war and national crisis, Congress has had to respond nimbly, passing laws without going through the usual legislative process, which includes “readings” — dissemination of proposals to legislators — along with holding debates and public hearings. For example, Congress bypassed normal protocol to enact laws responding to the Great Depression, the Japanese attack on Pearl Harbor and the terrorist attacks of Sept. 11, 2001, said David T. Canon, professor of political science at UW-Madison.

But federal and state governments have seldom, if ever, resorted to such deviations from the legislative process in the absence of public emergencies, Canon noted. He and other political experts are concerned that Wisconsin’s Republican leadership, in the absence of any emergency, is circumventing normal procedures to quickly enact a series of measures drastically changing both election laws and the ground rules for how state workers are hired and fired. 

Besides lacking an underlying public emergency that would justify fast-tracking the GOP’s legislative priorities, there’s been no public demand — or even interest — in refashioning the laws. The changes appear based only on Republican lawmakers’ self-interests.

Canon and many others lament that Republican leaders are turning their backs on Wisconsin’s century-old stature as the standard bearer of good government. With the GOP’s proposed changes comes the potential danger that Wisconsin will devolve into a cesspool of early 20th-century-style political corruption.

Fast-tracking partisan ‘reforms’

In June, Republicans tried to sneak a measure gutting the state’s open records law nto the biennial budget bill at the 11th hour. They backed off after an outcry from the public, but even Republican apologists such as talk radio’s Charlie Sykes were red-faced over the incident.

Although GOP leaders abandoned that effort, “Just the fact that they even tried to do this in the first place should bother everybody in this state,” Sen. Jon Erpenbach, D-Madison, said at the time.

That concern seems prophetic now that the state’s GOP leaders have turned to new ways of shielding public officials who engage in unethical and illegal campaign activities. Critics say the GOP’s government “reforms” are largely motivated by the GOP’s desire to avenge the bipartisan John Doe investigations of Gov. Scott Walker and his staffers, some of whom landed in jail.

The first piece of legislation Republicans went after was the John Doe law, which they rewrote to exclude political investigations (see page 6). That was just the beginning. There are several other pieces of redefining legislation speeding to Walker’s desk. The three that rise to the most transformative level are:

• The annihilation of the Government Accountability Board.

• An overhaul of campaign finance law that will allow unlimited, anonymous money in Wisconsin elections.

• The end of Wisconsin’s current civil service system, which could usher in Chicago-style political patronage and cronyism.

Government Accountability Board

By a nearly unanimous vote, the GAB was formed in 2008, largely in reaction to a scandal two years’ prior that sent members of both parties to jail. At the time of its creation, both parties hailed the GAB as a shining example of Wisconsin’s bipartisan commitment to clean, open government.

The GAB administers and enforces Wisconsin laws governing elections, ethics, campaign financing and lobbying. It’s composed of the Elections Division and the Ethics and Accountability Division.

Six retired state judges comprise the board. The governor appoints them from a list of candidates selected by the Wisconsin Court of Appeals and the Senate must approve them. 

Despite the bipartisan makeup of the GAB, including appointments made by Walker, Republicans say the group organized a vicious, partisan-motivated witch-hunt of Walker’s campaign activities.

In response, GOP leaders have decided to eliminate the GAB and break it into two separate entities, one to oversee elections and another to monitor ethics and accountability. Each would have a bipartisan board consisting of three Republicans and three Democrats — and perhaps two judges. Details remained sketchy as WiG went to press.

The unspoken but widely recognized goal of this transformation is to create built-in partisan gridlock that will prevent the board from moving forward on investigations. That’s exactly what’s happened on the federal level, according to Canon.

The Wisconsin Democracy Campaign called the proposal “a recipe for corruption.” The notion of eliminating partisanship by switching to a partisan oversight board is oxymoronic, they emphasize.

Republicans claim the GAB in its current form is guilty of overreach and anti-GOP sentiment. That claim ignores that the board’s members are bipartisan and judges rather than politicians.

Canon said the facts belie Republican claims. The Legislative Audit Bureau, also in the crosshairs of GOP leaders, looked at three or four years of GAB decisions and found no evidence of partisanship.

Although the GAB participated in the John Doe cases against Walker, the board also has taken high-profile  actions against Democratic interests. For instance, during the state Senate recall races, the GAB allowed Republicans to place fake candidates on the ballots to improve their odds of holding on to their seats, which drew outcries of pro-Republican bias from Democrats. The GAB looked into the infamous “lost votes” in the Supreme Court race between Justice David Prosser and challenger JoAnne Kloppenburg. Republican Waukesha County Clerk Kathy Nickolaus claimed to have found 14,315 votes after Kloppenburg declared herself the winner by a few hundred votes, a “discovery” that handed the victory to Prosser.

The GAB investigated Nickolaus’ handling of the votes and determined the staunch Republican had engaged in no wrongdoing.

Those two examples refute Republican leaders’ claims that the GAB has been “out to get” them. The fact that the board has run afoul of both parties suggests that it’s performing its duties in a non-partisan manner.

Despite the potential damage of eliminating the GAB, the proposal has failed to generate much attention from the public, let along outrage.

“A lot of people can’t understand why (the GAB overhaul) is such an important thing to care about,” Canon said. “It’s hard to get the kind of very strong reaction that you got with the backlash over the open records law.”

The Assembly quickly passed the measure to get rid of the GAB, but four Republican senators — Luther Olsen, Sheila Harsdorf, Jerry Petrowski, and Rob Cowles have reportedly stalled it in the Senate, as of press time.

Campaign finance law

Republicans also are fast-tracking a complete rewrite of Chapter 11 of the Wisconsin Statutes, which sets campaign donation limits as well as disclosure and reporting requirements. Originally, it also prohibited  coordination among candidates, political parties and independent groups.

The GOP plan will double the amount of contributions candidates for state and local office can legally accept. The plan will also increase contribution limits every five years to account for inflation.

The bill removes regulations that prevented campaigns from coordinating their communication strategies with political action committees, which can raise unlimited sums of money and provide anonymity to their donors. At the same time, the law leaves in place a ban on coordinating advertising and promotional materials that ask voters to elect or defeat a specific candidate.

The change in campaign coordination rules reflects a state Supreme Court ruling earlier this year that said coordination is legal so long as it advocates for or against issues rather than candidates. But federal law prevents any coordination between PACs and campaigns, which means the state would have one set of rules governing state elections and a different set governing state elections for federal office-seekers.

The ruling on state campaign coordination was issued in a John Doe case involving Walker’s 2012 recall campaign staff, which coordinated their activities with supportive PACs. The court’s four conservative justices sided with the PACs’ position that the coordination was protected by the state’s constitutional guarantee of free speech. But an ethical shadow hangs over that ruling, because the prevailing justices received at least $8 million in campaign contributions from the PACs involved in the case.

“The Republican-led effort to scrap Wisconsin’s proud tradition of clean, open government and stringent campaign finance and ethics laws is shameful,” state Rep. Mark Spreitzer, D-Beloit, said. “Under the guise of protecting free speech, this proposal opens the floodgates and allows more money to flow into the pockets of politicians as fast and as often as special interests can write a check.”

The campaign finance law has moved with such speed that Spreitzer and others complained there was no time to review or analyze the proposal. An 18-page amendment to the original Assembly bill passed out of committee before Democrats even saw it. As of press time, the bill was scheduled for a vote within a week.

Civil service rules

Assembly Republicans also passed a rewrite of Wisconsin’s civil service laws that would make it easier to hire and fire people for state jobs.

In addition to shortening the timeline for new hires, the bill would end the civil service exam for state government job applicants and replace it with a “resume system.” By making the process subjective, campaign donors and workers could be rewarded with jobs, regardless of their qualifications.

Republican Majority Leader Jim Steineke, R-Kaukauna, insisted, “This bill will simply accelerate the hiring process, making it infinitely more likely that we’re going to be able to attract the best candidate.”

But the change will unquestionably open the door to hiring and firing decisions based on personal decision-making as opposed to objective criteria. Democrats contend the process will lead to patronage hiring and firing. Rep. Gary Hebl, D-Sun Prairie, said it would create an “army” of “partisan lackeys.”

“(Government workers) will owe their allegiance to General Walker, or they will be dishonorably discharged if they don’t carry the water for General Walker,” Hebl said.

The plan passed the Assembly on a party line vote and, as of press time, was headed to the Senate, where Republicans were considering a competing version that will probably pass during the time this issue of WiG is on newsstands.

Ironic GOP revolt

Over a century ago, America was in the throes of a shameful chapter that included child slavery, slumlords and routine police shakedowns of small businesses. Laborers toiled under dangerous conditions for 12 hours a day, seven days a week, and were lucky if they were paid enough to survive. Injuries and deaths on the job were commonplace and victims had no legal recourse.

The situation was made possible by a small minority of wealthy oligarchs who ran the United States government — along with the governments of states and municipalities — by paying politicians to enact laws and policies designed to make them wealthier. If they couldn’t get what they wanted by buying elected officials, they bribed judges and police.

Political deals were made in back rooms and ballot boxes were rigged by partisan grunts who were rewarded with government jobs for which they were unqualified. 

But in the earliest years of the 20th century, Wisconsinite Bob La Follette — a Republican congressman, U.S. senator and governor — became a national figure by cleaning up Wisconsin’s corruption and cronyism, earning him the title of “Fighting Bob.” 

Today, with no apparent sense of irony or shame, La Follette’s party is in the process of undoing the reforms he championed — right in Fighting Bob’s own backyard.

Or, as Spreitzer put it, “In just shy of two weeks, Republicans will have unraveled 100 years of tradition.”

Needed: Conscience and courage

As the fall chill takes hold, we can mope about the prospect of another long, dreary winter or make plans to shake up our lives and make good use of our time.

What’s true for our personal lives is equally true for our political climate.

Many liberals are discouraged by the endless stream of inanities from right-wing media, Congressional committees and Republican presidential candidates. Corporate shills vigorously deny global warming despite growing evidence of rising temperatures, deforestation, ocean acidification and species extinction.

Closer to home, Gov. Scott Walker and his GOP majorities in our Legislature continue to destroy multi-party, transparent government. Their methods are legion: gerrymandering legislative districts; prohibiting prosecutors from conducting John Doe investigations into corrupt practices; increasing the amount of allowable political campaign contributions while enabling donor anonymity; eliminating civil service rules that prevent cronyism; trying to trash our open records law; dismantling the nonpartisan board that oversees ethics and accountability; depressing voter participation through restrictive, confusing voter ID laws; restricting local ballot initiatives.

With Wisconsin in the grip of incipient fascism, it’s not the time for us to hibernate. There are many opportunities to get involved and help to turn our state back to a progressive path.

Contact the League of Women Voters (608-256-0827) or the Democratic Party in your region of the state to participate in voter education and registration drives. The GOP is counting on chaos and low voter turnout in next year’s elections. You can take an active role in seeing their plans crushed. At a minimum, make sure that you and everyone you know has the proper ID and knows when and where to vote.

I am far to the left of the Democratic Party, but I’m also a pragmatist. Democrats are the most viable alternative to the GOP right now. The GOP has a 63–36 majority in the state Assembly and a 19–14 majority in the Senate. It will be difficult to turn that around, but it’s not impossible. It wasn’t long ago that we had a Democratic governor and Democratic majority in the Senate.

I urge you to contact the Democratic Party and get active in campaigns, canvassing, issues research, social media and other forms of organizing. Participation of this kind has many benefits, including new skills, friendships and adventures. You can change your life while you change our state.

The Wisconsin Legislature is in session through Dec. 31. GOP leaders are promoting more legislation that will restrict public oversight and women’s reproductive freedom. 

Your voice matters. When issues concern you, call, write or email your representatives. Sign up for Twitter and email alerts from your favorite advocacy organizations. Planned Parenthood Advocates kept me informed daily during its federal funding crisis and allows me to send messages to my elected officials with just one keystroke. 

Spread the word and activate your family, friends and workmates. It is only through individual initiative that we will rescue democratic governance in our state.

“In a democracy,” wrote Marilynne Robinson, “abdications of conscience are never trivial. A successful autocracy rests on the universal failure of individual courage.”

In Wisconsin, it’s time we put conscience and courage into high gear.

Demand clean, open gov’t

Differences of opinion are inevitable in government. Disagreements between Democrats and Republicans over public investments, funding for schools or the fairness of our tax code are common.

Despite these differences, everyone can agree that an open, transparent and accessible government is essential to democracy.

Throughout Wisconsin’s history, both Democrats and Republicans have supported laws to protect citizen access, prevent political corruption and maintain high ethical standards.

Unfortunately, this historical bipartisan agreement is nearing an end.

Republicans who control the Legislature in Madison are pushing a package of bills that severely limit the ability of Wisconsin citizens to have their voices heard and hold officials accountable.

These bills follow the recent attempt by Gov. Scott Walker and legislative Republicans to gut Wisconsin’s open record laws. These misguided efforts to limit disclosure of public documents were abandoned only after newspapers, media outlets and citizens responded with overwhelming opposition.

Now, less than three months after the failed attempt to restrict open record access, the GOP is using an end-run tactic to rewrite long-standing campaign finance, ethics and anti-corruption laws.

Walker privately signed the first of these bills, Senate Bill 43, into law on Oct. 23. This law makes it more difficult to prosecute political corruption by exempting politicians from Wisconsin’s John Doe criminal investigation laws.

A second bill completely rewrites Wisconsin’s campaign finance laws allowing corporations to contribute directly to political parties and eliminating important disclosure requirements. The sweeping changes in this bill go beyond the controversial Citizens United Supreme Court decision and will result in even more TV ads, robocalls and special interest attack mailers during campaign season.

Finally, a third Republican proposal dismantles the nonpartisan Government Accountability Board, which oversees state elections and ethics laws. The board would be replaced with political appointees using a flawed model that encourages partisan bickering and gridlock rather than actual oversight.

Taken together, these bills make sweeping changes to many long-standing good government protections. This trio of bills is so troubling that one prominent government watchdog group recently called it “a massive, coordinated blitzkrieg on democracy and transparency.”

At a time when students, families and seniors across Wisconsin continue to face serious challenges, we should be focused on strengthening our state’s economy and improving financial security.

These misguided attacks on Wisconsin’s long-standing, bipartisan tradition of open and clean government are a threat to our democratic institutions and will only serve to further polarize Wisconsin’s political environment.

Senate Minority Leader Jennifer Shilling represents the 32nd Senate District. 

Wisconsin Republicans celebrate ‘Corruptoberfest’

It seems that in the spirit of the fall season, Assembly Republicans have created their own new way to celebrate  — Corruptoberfest!

The last few weeks have been an absolute embarrassment for Wisconsin.

The Assembly Republicans are working hard to dismantle everything that used to make Wisconsin an example for the rest of the country. They paved the way for our elections to be dominated by corporate money, set in place a system to give government jobs to unqualified political hacks, and disassembled Wisconsin’s highly acclaimed Government Accountability Board. For decades, since the days of Fighting Bob La Follette, Wisconsinites were proud to be from a state that was a national leader in clean and open government. In a very short amount of time, Assembly Republicans have destroyed that.

So, instead of this being the time of year where people are enjoying the beautiful fall colors, watching the Packers and Badgers, or picking out their Halloween costumes, the Republicans have decided that fall in Wisconsin is corruption season.

Happy Corruptoberfest everyone!

Note: The Wisconsin State Assembly this week passed AB 373 by a vote of 57-35. This bill would essentially gut Wisconsin’s exemplary civil service system and encourage corruption and cronyism. AB 373 comes only a week after the Assembly Republicans passed three bills that will tarnish Wisconsin’s reputation for clean and open government.