Members and contacts of LeaderEthics receive a monthly copy of The Ethics Report. Each edition will include summaries of research as well as articles about ethical leadership in practice...frequently awarding a "green light" or "red flag" rating. Each month, we include a featured article from the most recent edition of The Ethics Report.
LeaderEthics articles are written by the Executive Director and reviewed by the Judges Panel (three former judges) prior to publication in The Ethics Report. Periodically, guest articles appear. The articles regularly award a green light or red flag. The green light is in recognition of performance that is consistent with the four principles of ethical leadership...to be:
Lee Rasch, Executive Director. Email: Lee@leaderethics.us.
Is Gerrymandering Ethical?
Is gerrymandering an ethical practice? It is an interesting question. The U.S. Constitution requires that legislative and congressional districts get redrawn at least once every 10 years using new census data to guarantee equal representation. The Equal Protection clause of the 14th Amendment clarified this, and the U.S. Supreme Court subsequently upheld this practice. This means that as nearly as is practicable, one person’s vote in a congressional election is to be worth as much as another’s. Gerrymandering is a term coined after the actions of Elbridge Gerry, a Founding Father and signer of the Declaration of Independence. He also served as governor of Massachusetts and signed the bill creating the misshapen state senate district designed to benefit his political party. Many contend that the practice of gerrymandering is undemocratic. However, the Supreme Court’s 2019 ruling determined that gerrymandering for political party advantage cannot be challenged in federal court. The states are responsible for the redistricting process and for the determination of a process that meets the Equal Protection clause of the Constitution. Essentially, though the U.S. Constitution requires equal representation in numbers, based upon census data, it is silent on equal representation based upon political party preferences.
It is not surprising that the term gerrymandering is considered a partisan practice and a hot topic by both political parties. The LeaderEthics organization held a seminar in 2022 on the topic of Gerrymandering. The speaker was from the Princeton Gerrymandering Project. It was an information session focusing on national practices. The speaker explained that, nationally, both political parties practice gerrymandering, however the process is much more complex and sophisticated given today’s technology. He demonstrated that you cannot just look at a map and determine a fair or gerrymandered district. Meanwhile, a Wisconsin state legislative staff member contacted one of the event sponsors (a business organization), criticizing them for sponsoring a “political” event. To their credit, the sponsor responded stating that the LeaderEthics organization, and their programs, are nonpartisan.
The State of Iowa uses a non-political model for the redistricting process, which is a variation of what is called fair maps. Within the legislative branch there is the Legislative Services Agency, a nonpartisan entity. The law directs the agency to draw maps with equal population being the primary consideration. There are other factors, including respect for political subdivisions, contiguousness, and compactness. However, what makes Iowa unique is that political factors are specifically excluded. Districts cannot be drawn to favor any political party or an incumbent. Data concerning incumbents’ addresses, their party affiliation, the party affiliation of voters, and previous election returns are excluded.
Wisconsin maps are drawn by the legislature and the Governor. Political factors and voting patterns are very much included in the process. If the legislature and the Governor are in the same political party (as was the case for Republicans in 2010), the maps favor the party in power. It should be noted that in 2009, Democrats had majorities in the State Senate and Assembly and held the Governor’s seat. Nonpartisan redistricting legislation was proposed. Democratic Party leaders took a pass on approving the legislation, expecting to maintain the ‘trifecta’ in 2010 and thus overseeing the redistricting process. They were wrong. Instead, Republicans swept the 2010 elections by narrow margins and held the sole authority for re-drawing the legislative maps.
Does a redistricting process such as used in Iowa mean there will be balance between the two political parties? That may not be the case. Consider the situation with statewide elections in Iowa. In 2008, 52 counties voted blue. Yet in 2022, Iowa had only 5 counties that voted Democratic, primarily those in and adjacent to Cedar Rapids and Des Moines. As of January 18, 2023, The Republican Party holds the Governor's office, the State Senate, the State House and all 4 U.S. Congressional seats. Even with a fair map system, demographic changes are a factor.
Changing demographic voting patterns are also a factor in Wisconsin. Consider the second-term election results for two Democratic Governors, Jim Doyle and Tony Evers. Doyle received 52.7% of the vote in his 2006 re-election bid. Evers received 51.1% of the vote in his 2022 re-election. Though the margin for victory in the two elections was remarkably close, Doyle carried 47 counties, while Evers carried only 16 counties. In short, in the last decade and a half, most rural counties shifted to vote Republican, while larger cities overwhelmingly voted Democratic.
There are also important trends in sub-population areas. For example, the overall population in Wisconsin grew by 9.7% between 2000 and 2020. At the same time, the Latino population grew by 126%. Latino strategists and advocacy groups say both parties are still missing the mark. They argue that the Democratic and Republican campaigns both continue to treat Latino voters like a single voting bloc, failing to recognize their individual and community-based concerns. Meanwhile, in 2022, the suburban shift in favor of Democratic votes is continuing. The so-called WOW counties (Waukesha, Ozaukee and Washington) still tend to vote Republican yet are no longer considered to be an impenetrable Republican stronghold.
Should states like Wisconsin adopt the Iowa Model? The answer is yes. Gerrymandering is inherently divisive and lacks transparency. It employs a “winner takes all” approach that can disenfranchise half of the population. Meanwhile, a fair maps model will support legislators who focus on responsive legislative policy rather than political gamesmanship. The 2009 non-action by Democrats in Wisconsin serves as a reminder that political leaders should not take the needs of their constituents for granted. As demonstrated in Iowa, the fair maps model will not necessarily mean that partisan shifts in voting patterns will not occur. Our population needs and preferences change over time. But fair maps will allow legislators to keep their focus on the people they represent. And that is the ethical thing to do.
Transparency Issues in Wisconsin
Transparency in government builds trust. It is a cornerstone of the American republic. Over the years, there have been many legislative steps taken to ensure transparency such as the federal Freedom of Information Act as well as state Sunshine and Open Meetings laws. However, in Wisconsin, there is a legislative “end around” on transparency that is puzzling and problematic. The Wisconsin Knowles-Nelson Stewardship program has a multi-step process for the identification and review of land acquisitions for public preservation. The final steps involve the authorization of funds by the Department of Natural Resources (DNR) and the expenditure approval by the state’s legislative Joint Finance Committee (JFC). It is at this last step of the process where there is a concern. There is a provision in the process that allows a single member of the Joint Finance Committee to anonymously object to the acquisition for a review and stop the process. Furthermore, there is no requirement to specify the reason for the objection.
Consider the circumstances surrounding several recent acquisitions that were stopped at the Joint Finance Committee level. In April 2022, the DNR authorized funding for two projects, the preservation of the Cedar Gorge Clay Bluff Nature Preserve in Port Washington and the transformative renovation of the west bank of the Milwaukee River in downtown West Bend. Both projects were stopped by an anonymous member of the JFC. No reason was provided for the need for the review. However, in the case of the Cedar Gorge Clay Bluff Nature Preserve, an unidentified citizen circulated a letter to local officials and the JFC, expressing concern about the public acquisition and made an offer to privately purchase the site for development. The Cedar Gorge Clay Bluff project included privately raised funds which, along with the DNR appropriation, met the agreed land purchase amount. However, it was stipulated by the property owner, Waukesha State Bank, that a September purchase deadline must be met. If the DNR stewardship proposal did not receive JFC approval by the deadline, the bank offer would be withdrawn. Though the objecting JFC member was not identified, it was reported by the Milwaukee Journal Sentinel that Senator Dewey Strobel had been involved with the two projects, but he was not identified as the anonymous objector. With a September bank deadline looming on the DNR purchase offer, Governor Evers appropriated $2.3 million in federal stimulus funds in late August to allow the acquisition of the Cedar Gorge Clay Bluff site, and an additional $2.7 million to fund the West Bend Riverwalk easement acquisition. As a result, the funding for both projects was completed without JFC appropriation approval. Because the JFC action was anonymous, the reasons for the objection cannot be fully determined.
Meanwhile, in late October 2022, the Wisconsin DNR Board approved the expenditure authorization of the remaining portion of the state ’s largest land conservation project in state history. The board signed off on a $15.5 million conservation easement for more than 56,000 acres in northern Wisconsin. Once again, an anonymous objection for review stopped the process. Without question, a public acquisition of this size could have questions raised that warrant a review. For example, the proposal commits millions of dollars to secure public access to lands in a part of the state where millions of acres are already in public ownership. However, questions like this should be addressed in public discussions and public actions.
It should be noted that anonymous objections by Joint Finance Committee members has not always been the practice. In 2017, JFC member Senator Howard Marklein (R) objected to the acquisition of the Nelson tract in Dane County. He stated, “I am not opposed to purchasing land for the stewardship program, but too often, the DNR appears to be acting as the realtor, rather than the buyer, by making offers that are at the high-end of the appraisals for each property we consider. We need to negotiate for better prices on behalf of taxpayers.” He added, “The appraised price the DNR decided to work with was nearly $100,000 more than the lowest appraisal! No ordinary citizen would make this offer. This is an ongoing trend that we need to address in the Stewardship Program. Public land is important, but it should not be purchased frivolously.” The questions raised by Senator Marklein were completely in line with the role of the Joint Finance Committee, to scrutinize the integrity and efficiency of projects prior to voting on the appropriation of funds.
However, this kind of open and public review was not conducted in the three 2022 cases cited. The JFC process for approving or not approving stewardship projects, as it’s currently being applied, needs reform. But the transparency issues in Wisconsin do not end here. On December 14th, the Wisconsin Legislative Audit Bureau (LAB), a nonpartisan office of state government, issued a report that Governor Evers lacked transparency in disclosing information about the distribution of pandemic relief funds. The Legislative Audit Bureau said that Evers' Department of Administration did not provide information on which it claimed the governor based his decisions when handing out some $3.7 billion in pandemic aid over the past two years. As reported by PBS Wisconsin, the Evers administration did not turn over any of that information when requested by the audit bureau. Instead, they gave auditors information that was already available online and later said that many spending decisions happened in verbal conversations rather than written documents. The department also told auditors that the decision-making process varied over the two years during which Wisconsin received relief funding. It should be noted that the federal dollars used to fund the Cedar Gorge Clay Bluff and West Bend Riverwalk projects were included in the pandemic aid audit by the Legislative Audit Bureau.
Regarding the Joint Finance Committee, none of its deliberations should be secret. Senator Howard Marklein earns a green light for publicly addressing concerns about a stewardship acquisition project. At the same time, there is clearly a red flag for the lack of transparency by the anonymous member of the Joint Finance Committee. The concerns by members of the JFC should be open and publicly reviewed. This issue is further compounded in the Cedar Gorge Clay Bluff project, given the presence of an unidentified offer to purchase. There should openness and awareness of the public role and responsibility of the Joint Finance Committee regarding the intersection of the DNR authorization and the private purchase offer. Clearly, the Joint Finance Committee should remove the anonymous objection provision and conduct their business in an open manner, wherever possible.
At the same time, the actions by Governor Evers are a major concern. The amounts included in the pandemic relief are massive. State law provides the Governor with the authority to distribute these federal funds. However, the LAB report indicates that the Governor’s unilateral distribution decisions lacked the fiscal integrity that should be associated with the management of public funds. Responsible government should include open disclosure and the checks and balances needed to represent the public interest. Governor Evers’ actions warrant a red flag for the lack of transparency. Perhaps the actions of both the Joint Finance Committee and the Governor are indicative of the lack of communication between these branches of government. In any case, more transparency is needed. It will be the only way to rebuild trust.