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February 18, 2020

12/25/2019 7:30:00 AM
Local 'nonpartisan' referenda efforts find Northwoods success
But just how nonpartisan are the 'nonpartisan' efforts?

Richard Moore
Investigative Reporter


News analysis



As they are across the state, proposed referenda questions asking voters if the state Legislature should create a nonpartisan, independent method for drawing congressional and state legislative districts and whether corporate spending in elections should be limited are gaining traction in the Northwoods, with a number of town boards already putting them on their spring election ballots.

As Lakeland Times news director Brian Jopek has previously reported, volunteers with the organizations United To Amend and The Fair Elections Project have worked the area for months, trying to rally support from local governing bodies for the advisory questions.

And they've been successful in a number of towns.

In the Lakeland area alone, for example, the ballot questions have been approved in towns such as Arbor Vitae, Woodruff, Lake Tomahawk, Winchester, and Boulder Junction. Plum Lake and Manitowish Waters will consider the questions in January.

Supporters of the questions say the referenda are all non-binding, that they simply want the public to have a say, and, in any event, the ballot questions are nonpartisan.

To be sure, on their face, the questions do not seem to favor any one political party. But questions remain about whether the ballot questions are truly nonpartisan, or whether they represent ideological positions with deep partisan interests. Let's take a look.



Fair elections

The Fair Elections Project (FEP) is pushing one of the referenda questions on redistricting. On its website, FEP says it is "fighting for fair redistricting around the country by inspiring and supporting litigation, legislation, and public advocacy to stop partisan gerrymandering."

The goal, the group says, is to end map-rigging, so instead of politicians choosing their voters, voters can choose their elected officials, and elections will again be meaningful.

In an October letter and packet of information to the Sugar Camp town clerk, seeking to speak to the board about the advisory referenda, Fair Elections Project volunteer and Sugar Camp resident John Bigley described how FEP planned to accomplish that goal.

"Fair Elections Project is a grassroots, nonpartisan citizen movement to address gerrymandering through the creation of a nonpartisan procedure for preparing legislative and congressional redistricting maps," Bigley wrote. "Partisan gerrymandering is a practice that attempts to establish a political advantage for a particular party or group by manipulating geographic boundaries to create partisan or incumbent-protected election districts. Using the Iowa redistricting model, maps are drawn by a nonpartisan commission with legislative intent to create maps that are balanced and neutral."

The proposed referenda question would ask voters if the people of the town of Sugar Camp should insist upon the creation of a nonpartisan procedure for the preparation of legislative and congressional redistricting plans and for a process that promotes more accountability and transparency and prohibits the consideration of voting patterns, party information, and incumbents' residence information or demographic information in drawing the maps, except as necessary to ensure minority participation as required by the U.S. Constitution.

Again, on its face, the question seems fair to everyone, regardless of party. Still, while the Fair Elections Project does have some Republican faces, most notably former state Sen. Dale Schultz, the organizations on its website supporting the Fair Maps pledge for independent redistricting are all decidedly liberal or liberal-leaning: One Wisconsin Institute, Wisconsin Democracy Campaign, Citizen Action of Wisconsin, Center for Media and Democracy, Wisconsin Voices, and Grassroots North Shore, which describes itself as the progressive voice of Milwaukee's North Shore communities.

Wisconsin Voices also describes itself as a progressive organization in sharing its founding history.

"People and organizations came together to push progressives to remember what we stand for and make a plan to realize our values ... together," the group states on its website. "That plan included the need to build an engaged citizenry working for change and to expand the electorate by targeting underrepresented constituencies. ... Today, Wisconsin Voices brings groups together, builds the power of our collective voice by providing guidance, advice and support as we embark on our journey towards a better Wisconsin."

Its "partners" list is a veritable Who's Who of left-wing groups and entities, including The Progressive Magazine, Milwaukee Riverkeeper, Planned Parenthood, Peace Action Wisconsin, Wisconsin Network for Peace & Justice, Voces de la Frontera, and the Alliance for Climate Education.



The efficiency gap

But it's not just the ideological leanings of the organizations supporting the Fair Elections Project that raise concern; it's the actual process they are trying to establish, and whether it is really democratic and nonbiased.

This past year, Democrats unsuccessfully proposed - and the Fair Elections Project backed - legislation to establish the kind of independent process that the proposed referenda calls for, and with language that was strikingly similar to the proposed referenda question.

Under the bill, the Legislative Reference Bureau (LRB) would draw redistricting plans based upon standards specified in the bill. In addition, according to the bill, "the LRB may not use political affiliations of registered voters, previous election results, or demographic information, except as necessary to test the efficiency gap and competitiveness of each district, or use residence addresses of incumbent legislators or members of Congress."

That is much the same criteria as the referenda language above, except the legislation inserts a key criteria that the LRB could consider: the so-called efficiency gap.

Simply put, the efficiency gap measures a party's comparative wasted votes. Those are all the votes for a winning candidate that are more than 50% plus one, and all the votes lost by being cast for a defeated candidate. The more wasted votes compared to the other party, the larger the efficiency gap, which is calculated by dividing the difference in the two parties' wasted votes by the total votes cast statewide.

A large efficiency gap could give a substantial legislative majority to a party, even though that party might have won fewer votes statewide than the other party and, advocates of the theory say, is indicative of gerrymandering.

Democrats say that's the case in Wisconsin, where Democrats have in the past won more votes than Republicans in aggregate Assembly races statewide, but have a much lower percentage of seats. That the party wins so many votes without winning anywhere near the same percentage of seats shows that the GOP is carving up districts to maximize their votes, Democrats say, and the efficiency gap calculation reflects that reality.

In 2012, to cite just one year, Democrats won more total votes statewide in Assembly races, but Republicans won 60 of 99 seats.

But conservatives say it's not so much indicative of gerrymandering as it is of Democrats having a natural demographic disadvantage. Because Democrats tend to cluster in a few urban areas, their candidates for those seats win by huge margins, piling up the so-called wasted votes and enlarging the efficiency gap, while fewer Democrats live in more rural areas, where Republicans pile up seats.

The total number of votes won might be competitive between the parties, or might even favor Democrats, but because the Democrats are clustered and concentrated in a few urban areas, they win fewer seats, critics of the efficiency gap say.

In fact, Rick Esenburg, the president and general counsel of the Wisconsin Institute for Law & Liberty, says adopting an efficiency gap model would compel the Legislature to engage in actual gerrymandering on the Democrats' behalf, in other words, rigging districts to give Democrats more seats.

"Even if districts look nothing like those normally considered to be 'gerrymandered' based upon unusual shapes (lack of compactness and contiguity), the majority decision means, in effect, that they must be gerrymandered for competitiveness which, in this case, means relieving the Democrats of at least some of the natural disadvantage that stems from the fact that their voters are much more geographically concentrated," Esenburg said after a three-judge federal redistricting panel ordered then Gov. Scott Walker and the Legislature to redraw the state's legislative districts, in time for them to be jurisdictionally valid for the 2018 elections.

The U.S. Supreme Court overturned that decision, saying the plaintiff could not used a statewide efficiency gap to establish standing for an individual grievance: "A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, 'assert(s) only a generalized grievance against governmental conduct of which he or she does not approve.'"

Because the legislation proposed in the Wisconsin Legislature would include the efficiency gap as a criteria, any "nonpartisan" redistricting under the model would almost assuredly increase the number of Democratic seats, probably significantly, and through the use of statutorily compelled gerrymandering for Democrats, at least in the view of conservatives.

So the legislation isn't nonpartisan. To be sure, the referenda question, at least the Sugar Camp version, omits any specific reference to the efficiency gap, but the language is otherwise close to that of the proposed legislation, and the Fair Elections Project supports both the proposed legislation and the broader efficiency gap theory, raising the question of whether the FEP would use any approved referenda to claim support for legislation that includes the use of the efficiency gap.

Assembly speaker Robin Vos has pinpointed another problem with the idea of "nonpartisan" and "independent" commissions doing the redistricting: It removes elected officials from the process and puts it into the hands of unelected officials who may possess their own political agendas and are unaccountable to the people.

"Rather than handing over our constitutional duty to an unelected, unaccountable board of bureaucrats appointed by politicians, redistricting should continue to be the responsibility of the Legislature and governor," Vos said last summer.



Corporations don't have feelings

The second referenda finding success in the Northwoods comes from United to Amend.

In an October letter to the Sugar Camp town clerk, also from Bigley, who was filing the proposal on behalf of United To Amend, the group calls for a referenda to gauge support for a constitutional amendment aimed at reducing corporate contributions in political campaigns.

The proposed amendment would declare that only human beings have constitutional rights, not corporations, unions, nonprofits, or other artificial entities, and also would declare that money is not speech and therefore limiting political contributions is not equivalent to limiting political speech.

The referenda and the proposed constitutional amendment is a direct attempt to overturn the Supreme Court's 2010 decision in Citizens United, in which the high court ruled that the First Amendment prohibits the government from restricting corporations, nonprofits, and unions from making direct independent expenditures for political communications.

According to a fact sheet from United To Amend, which accompanied the referenda proposal, so-called "corporate personhood" benefits only large corporations, chain stores, and global corporations.

"Small businesses rely more on personal relationships and the legitimate endowed rights of their human owners when working with town governments," the information sheet contended. "Citizens United threw out campaign finance laws that somewhat leveled the playing field between big and small donors giving to campaigns. Without limits, only large corporations, not small businesses, have the resources to flood local elections with out-of-district campaign funds."

And only large corporations, not small businesses, have the staff and resources to pursue expensive civil-rights litigation to overturn the actions of local governments, the fact sheet continued.

What's more, the explanation argued, town governments are the bulwark of local interests.

"The mission and interests of local governments - preserving local landmarks and identity, maintaining roads and sidewalks, supporting local businesses, enabling residents to participate in self-government, protecting the local environment - are the interests that large corporations are least likely to share," the explanation stated.

Then, too, the information sheet continued, large corporations often sue, or threaten to sue, local governments on equal protection grounds when residents seek local ordinances to control lighting, traffic, and land use to encourage small operations and to discourage "big box" stores that destroy local character and put local merchants out of business.

They often employ the state Legislature to help suppress local governments, the explanation contends.

"The Wisconsin Legislature is regularly creating laws that remove rights of local municipalities to protect the rights of their citizens against corporations that fund state legislators' campaigns," the explanation states. "Between 2011 and 2017, the Wisconsin state Legislature passed over 160 laws that take away rights of local communities."

Like the Fair Elections Project, while United to Amend describes itself as a nonpartisan state network of concerned citizens dedicated to restoring representative democracy by minimizing the corruptive influence that money has on the political process, it too receives the majority of its support from liberal or liberal leaning organizations, including some of the same organizations that partner with the FEP.

For example, the progressive Center for Media and Democracy is an allied organization, as is the Wisconsin Democracy Campaign. Another allied organization is Public Citizen, which has been heavily backed by liberal billionaire George Soros.



A dangerous concept

While liberals provide the main support for a constitutional amendment to upend Citizens United, critics such as John O. McGinnis, the George C. Dix Professor in Constitutional Law at Northwestern University School of Law, say they are dangerously wrong.

In fact, McGinnis asserts, as he did in The Los Angeles Times, money is speech.

What's going on politically, McGinnis argues in The Times' piece, is that liberals want a constitutional amendment to overturn the decision because they want to empower the government to silence those who advance political ideas come election time.

At the heart of the argument, McGinnis contends, is the Supreme's Court's long recognition that money does translate into speech and that, outside of campaign finances, its jurisprudence has banned any restrictions on expenditures that pay for expression.

"A government-imposed limit on, say, the amount of money a newspaper could spend for investigative reporters would be obviously unconstitutional," he wrote. "Why, then, should money spent on political campaigns be any different?"

Another central issue in Citizens United, McGinnis argued, was whether the right to express views about candidates in a campaign extends to corporations. In finding that it does, McGinnis continued, the court embraced neutrality about who or what the speaker is, relying on earlier First Amendment decisions that upheld the rights of corporations to talk about politics.

In fact, McGinnis contends that the language of the First Amendment explicitly supports corporate speech: "Congress shall make no law ... abridging the freedom of speech."

"As set down by the framers, the right isn't limited to particular kinds of speakers but bans the government regulation of speech, period," he wrote. "And if the First Amendment protects an individual's right to speak, then why - if neutral principles are adhered to - shouldn't a group of individuals, banded together in a partnership or other association, also enjoy that right? And if an association has that right, why would it lose it when it takes corporate form?"

At its heart, McGinnis said, the liberal effort to amend the constitution is part of a movement to restrict speech through campaign regulations and to redefine the First Amendment as something best understood as part of a collective right rather than an individual right.

"In this revised understanding, the First Amendment's purposes are advanced when the government cracks down on speech (such as political donations from the wealthy) that may mislead lawmakers about where popular opinion stands on a given issue," he wrote.

Others, such as Lawrence Lessig of Harvard Law School, have argued that Congress must prevent the political "distortion" that occurs when legislators become dependent on the wealthy, McGinnis wrote, and under that reasoning strong limits on campaign contributions can thus be constitutionally justified.

But that's a double-edged sword, McGinnis argues.

"By its logic, though, Lessig's argument would permit Congress to regulate the press, too," he wrote. "Its power to distort opinion is surely as great as, or greater than, that of the wealthy."

The First Amendment guarantees freedom, not equality, McGinnis argued.

"Rights are exercised to radically unequal degrees, and the right to speech is no exception," he wrote. "Some people are wealthy and can push their views with their money. Others work for the media or academia and can advance their opinions disproportionately in those settings. Still others command extra attention through celebrity. Most citizens have none of these advantages, but sometimes they join together to amplify their influence. In a free society, what law could succeed in purging elections of the unequal influences of the celebrated, the well-connected or the wealthy? Restricting one group would just magnify the influence of others."

The bottom line is, McGinnis wrote, applying ordinary free-speech protections to all electoral expression ensures that government will still depend on the back-and-forth of open debate, generated by free citizens in all their variety.

"What's ultimately at stake in the battle over campaign regulation is the First Amendment's empowerment of civil society over the prerogatives of the state, a virtue - central to our constitutional republic - that liberals once defended," he wrote.

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.





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