From Wisconsin comes news of a decision by the State Election Board, ordering Republican gubernatorial candidate Mark Green to disgorge $468,000 in campaign funds.   The story tells us a great deal about the modern project to make campaigns “more fair” and “less corrupt” through campaign finance laws.

The story begins in early January 2005, when Congressman Mark Green transferred money from his congressional campaign committee account to his gubernatorial committee.  This had been previously allowed by the Wisconsin State Election Board in December 2000, when it had allowed Democrat Tom Barrett to transfer money to his gubernatorial campaign (Barrett lost in the primary). In that ruling the Board stated:

A federal campaign committee may convert to a state committee and use funds collected for federal purposes in a state or local campaign by filing a campaign finance registration statementwith the appropriate filing officer and simultaneously filing a campaign finance disclosure report.

This followed precedent”>http://elections.state.wi.us/docview.asp?docid=8026&locid=47″>precedent dating from 1977.

However, one day after Green made his transfer the State Election Board’s Democratic majority passed Emergency Rule ElBd 1.395 on January 29, 2005.  The rule applied retroactively to prohibit Green from spending the money:

Funds which have been converted by a federal campaign committee to a Wisconsin state campaign committee may not be used for political purposes in Wisconsin…

Yesterday, the Board, on a party-line vote, demanded that Green disgorge the cash.  They did so in spite of a well-reasoned memorandumhttp://elections.state.wi.us/docview.asp?docid=9260&locid=47″>memorandum> from its Counsel, George Dunst, noting prior precedent and arguing that the rule should not apply to Green.

Meanwhile, Green’s opponent, Jim Doyle, who has been battered by various corruption scandals, is using this to argue that Green is just as corrupt.

The ruling raises a host of issues for enthusiasts of campaign finance regulation.

The first is the partisan appearance – if not outright partisan motivation – for the rule.  Green was doing what had been done before.  The day after he transferred the funds to his state account, the Board’s Democratic majority enacted a rule prohibiting the money from being spent.  Note that the Board did not claim to prohibit the transfer – that would too obviously have been a retroactive rule, constitutionally suspect.  Instead, it just says the money can’t be spent.  Clever – but still raises questions of an ex post facto law.  We have noted many times that one problem with campaign finance laws is that they can be twisted for overtly partisan or ideological purposes.  This case would seem to fit that bill.  Ironically, it comes at a time when the regulatory lobbyists in Washington, such as Democracy 21 and the Campaign Legal Center, have prevailed on Wisconsin Democrat Russ Feingold and Senator John McCain to support legislation to make the Federal Election Commission more like the Wisconsin State Election Board – that is, one with a partisan majority.

Second, we see once again the futility of trying to make elections more “fair” through campaign finance laws.  Incumbent Jim Doyle already has a big money advantage over his challenger, Green.  If this decision is upheld, it will get bigger.  One of the few advantages Green had in the rules has been taken away.

Third, we see again how allegations of campaign finance “abuses” merely cheapen political discourse.  Governor Jim Doyle has been accused of serious ethical violations.  We voice no opinion on the validity of those charges.  But they are not of a trumped up “scandal” such as this.  Excessive regulation seems to make everyone a lawbreaker, as the Bangor Daily News recently noted in looking at enforcement of Maine’s “Clean Election” Law.  (Thanks to CCP Academic Advisor Allison Hayward for the link).  No one thinks Mark Green is any less ethical today than yesterday.

Finally, we see decisions being yanked away from voters.  Voters ought to decide this election – not an appointed board that steps in weeks before the election to dramatically hamper one candidate’s efforts.  But in a system drenched in laws and regulations, it will increasingly be courts and other unelected bodies that step in.  That’s not healthy for democracy and political competition.