Green to Defy Wisconsin State Elections Board

Despite what I thought, Wisconsin Republican gubernatorial candidate Mark Green, who was ordered to divest some $480,000 in funds earlier this week, has decided not to go to court himself, but rather he will not comply with the order, according to the Wisconsin State Journal.

According to the story:

Green's campaign dismissed the decision as "incredibly partisan and hasty" and said Green complied with all applicable laws when he converted $1.3 million from his federal account in January 2005.

"We're going to continue to follow state Election Board rules and state law," campaign manager Mark Graul said, adding those allowed Green to spend the money.

In any event, Graul said, the money already has been spent.

Anticipating the refusal, the board authorized executive director Kevin Kennedy to hire outside counsel if Attorney General Peg Lautenschlager declines to represent the board in any enforcement action, which could start in 10 days.

Green was also ordered to divest his campaign of any PAC donations that exceeded the state limit for a gubernatorial campaign of $485,190.

By declining to comply with the order, Green has put the onus on the state to prove that he is violating the order, and with their counsel not supporting the board decision, they may have to get outside counsel to prosecute the case.

Similarly, by declining to comply, Green succeeds in an additionally putting the attorney general on the hot seat. AG Lautenenschlager, an elected Democrat also running for re-election this year, is now in a difficult position. If she declines to prosecute the case, will she alienate her voters, but if she takes the case, she could very well lose her job.

The most troubling aspect of this whole case is the undercurrent of rank partisanship.

Wednesday's actions were in response to a complaint brought by the Wisconsin Democracy Campaign, which alleged Green should be subject to an "emergency rule" the board passed prohibiting candidates for state office from converting funds from prior federal campaigns if the donors are not registered in Wisconsin or the gifts exceed state limits.

The Elections Board, which is dominated by Democrats, first adopted the rule in 2005, one day after Green transferred his federal money to his state account.

The rule was quickly suspended by a committee of the Republican-controlled Legislature. But the full Legislature never adopted the required follow-up legislation to permanently kill the rule before lawmakers went home July 12.

The timing of the events seems suspect. The initial action by the Board, including the timing of the "emergency rule" coming the day after Green's transfer, as well as the substance are difficult to reconcile with a glaring need to halt an abuse. Green followed the law, which inclded two independent precedents, including on as recent as the 2000. Furthermore,
this action by the Board smacks of an ex post facto law, something prohibited Art. 1, Section 12 of the Wisconsin Constitution.

Election laws are set up to ensure a standard of play that is the same for everyone. The fact that some poeple may file complaints for perceived violations is a part of the process, but to seek a wholesale rule change to suit partisan needs is a dangerous path to take, because you can never tell when you might be on the receiving end of a similar attack.

Complaints need to be filed, otherwise there is no way to enfore the rules. But there should be some sort of mechanism to prohibit and prevent malicious complaints unfounded in law.

As the primary election draws near in a little less than two weeks, this drama provides another attention diverting issue for the voters and Green.

Update 9:48am: The Milwaukee Journal Sentinel is reporting that Green has kicked off a 72 hour fundraising blitz to raise some $450,000. Other news links here.

Meanwhile, Green campaign lawyer Don Millis said the campaign is planning a court fight to try to overturn the Elections Board order. If the matter ends up in court, it might not be resolved until after the Nov. 7 election, said Elections Board Executive Director Kevin Kennedy.

"We anticipate that we're going to have to go to court to protect our rights," said Millis, a former Elections Board chairman.

Green would win in court, said Mike Wittenwyler, a Madison lawyer who specializes in election and campaign-finance law.

At the same time, the Journal-Sentinel has this editorial, which states that the Board was wrong, but also that Green is wrong to ignore the order.

In related news, the Elections Board's Libertarian member, Jacob Burns, claimed the matter was an issue of law. From the same article comes a thought that Green may benefit from the brouhaha:

The Elections Board's decision requiring Green to forfeit nearly $468,000 in campaign donations could actually help Green, according to Marquette political science professor John McAdams.