Thursday, March 26, 2015

Yeah, actually no, the Handmaid's Tale is not like the real world

While I was reading the Journal Sentinel earlier this week, I came upon an astonishing sentence. In reviewing a local production of a theatrical adaption of Margaret Atwood's novel, The Handmaid's Tale, Mike Fischer (who is, I hasten to add, not the Mike Fischer who works with me) writes that the play begins with a series of images "making clear that this dystopian look at the future also bears a stark resemblance to the way we live now."

I don't know if the reviewer is asserting his own view or describing the stance of the production, but Atwood's "dystopian look" at an imagined future conjures a militaristic theocracy in which most women lose all of their rights and are forbidden to read. Some women are ceremoniously raped to produce children.

I understand that the term "stark resemblance" is one of those clich├ęs that people toss about without thinking about the precise meaning. But a "stark" resemblance is one that is "plain," "obvious" and "clear." Whatever one may think about feminism and its progress, the way we "live now" bears virtually no resemblance to Atwood's dystopia. If it does, someone better break out the rifles.

Cross posted at Purple Wisconsin

Thursday, March 19, 2015

Pocan walks into it

Politicians love to cherry pick statistics. Sometimes this leads to inadvertent little treasures. Recently, Rep. Mark Pocan went on public radio to criticize the passage of a right-to-work laws in Wisconsin. He  took a shot at Governor Walker saying that, in a recent one year period, Wisconsin was "dead last" in the Midwest in job creation. The Journal Sentinel's Politifact writer gave it a "mostly true" rating. For a variety of reasons, I believe that's too high and, in any event, I don't think the comparison is very meaningful. What the numbers really show is North Dakota and Michigan doing better than a tightly bunched group of seven states.

But there was something else interesting about it.

The "top four" states by Pocan's measure were right to work states.

Were Pocan testifying at a trial, the opposing lawyers would be telling the story of the ensuing cross-examination for the rest of their lives. It would be something like Ndamukong Suh bearing down on Jay Cutler from the blind sight. Whatever happened next would not be pretty.

Of course, this doesn't "prove" that right to work contributes to job growth and, yes, I know that three of the bottom six were also right to work states. (Remember, Wisconsin was not a right-to-work state for the period in question.) But Pocan winds up being hoisted on his own ill-chosen petard.

Cross posted at Purple Wisconsin

Wednesday, March 04, 2015

Lack of candor comes in many forms

Another observation about last week's hearing on right to work. There was a false narrative about disinterest being pushed by the opponents of right to work, almost laughably portrayed by Gordon Lafer, who identified himself as an economics professor at the University of Oregon. Professor Lafer began with a show of how no one had paid him and he is an academic who goes where the evidence leads him. I am sure that he believes that and tries to conduct himself accordingly.

But no one paid me to be there either and I am a public interest lawyer and legal scholar who goes where the evidence leads me. I truly believe that and try to conduct myself accordingly.

But it takes incredible chutzpah for Professor Lafer to castigate others as ideological or interested, as he did in this op-ed criticizing a study on right to work by the Wisconsin Policy Research Institute. He is also a research associate at the left wing Economic Policy Institute. It receives funding from unions. It is every bit as "ideological" as WPRI.

What I will admit - and Professor Lafer apparently will not - is that, in a career that, like his, is now in its fourth decade, I think I've learned some things about the world and have some notions about how it works. In my case, this has lead to a libertarian conservative perspective. He has come to see things differently. But both of us would be fooling ourselves and misleading others if we denied having a perspective from which we've come to approach things.

This doesn't mean that I - and, I hope, Professor Lafer - will say anything or do bad work. I try very hard not to. If a particular legal argument won't work, I don't make it. WILL's research reports aspire to be accurate and thorough. None of us are free of confirmation bias and we all make mistakes, we try to do good work.

Senators Wirch and Larson made a show of pointing out that certain of the witnesses in favor of Right to Work did - or have - received funding from the Lynde and Harry Bradley Foundation. Given the scope of Bradley's activities, all this means is that the speakers are active in the libertarian and conservative policy world. In other words, all it establishes is that they have a perspective that I, for one, am perfect willing to admit.

The ultimate irony, of course, is that Senator Wirch and Larson and the Democrats benefit substantially from coerced support of labor unions. They should be careful about asking cui bono (who benefits) lest some one hold up a mirror.

Cross posted at Purple Wisconsin

Tuesday, March 03, 2015

Right to work and free markets

Last week, I was one of several invited witnesses at the Senate hearing on proposed right to work legislation. I made two points, One was that no legal challenge to the proposed legislation was likely to invalidate it. There is a minor preemption issue regarding the notice period for revocation of a consent to have dues deducted, but Wisconsin can have right to work if the legislature and the Governor so decide. No court will block it. I'm not sure anyone really disagrees with that.

The second was to correct the mischaracterization of the legal nature of collective bargaining agreements and what right to work actually does. As I wrote at Right Wisconsin, opponents typically argue that right to work interferes with a private and voluntary contractual arrangement to give some employees a "right to freeload."

But a collective bargaining agreement is normally not free of legal compulsion and regulatory interference. The government forces employers to recognize a union supported by a majority of employees and requires it to negotiate on all mandatory subjects of bargaining. In the absence of legal interference, none of that would be required.

Moreover, because the union can choose to be an exclusive representative (some people argue that it must do so) the law forbids employers from negotiating with anyone other than the union and forces all employees - even those who never wanted a union or who do not like the demands it made or contract it negotiated - to abide by its terms. This too is anything but a voluntary, free market arrangement.

In short, the government is all over collective bargaining. It creates it through a series of legal compulsions and restrictions. To say that right to work interferes with freedom of contract ignores all of that.

Calling objecting employees "freeloaders" - people who get something that they are not paying for - assumes that they want what the union is selling. More productive employees who feel aggrieved by lockstep compensation and union protection of less productive workers; younger workers who don't want seniority; employees who do not like the causes and candidates that the union supports (and who understand that the reductions in "fair share" or "agency" payments do not relieve them of supporting them) are all compelled to pay for what they don't want and associate with those they do not wish to associate with.

It is, of course, true that they can just go work elsewhere. It is odd, however, to hear Democrats make that type of argument given that they make it no other context. They don't say the employers should not be forced to pay a minimum wage, provide a certain number of sick days, etc., because those workers "who don't like it can just find another job." Moreover, as I noted before, the burden placed on objecting employers is, to  a significant degree, the product of government compulsion. The law has made employers recognize the union and bargain. It has made the union an exclusive representative. It hardly seems unreasonable for the state to relieve objectors of this government created burden.

This will make collective bargaining impossible only if a large number of employees opt out. But why is it a problem - much less the evil and oppression that some claim it to be  - to require unions to persuade workers that what they are offering is worth what they are charging.

Of course, one can argue that the "majority should rule" and that every worker should go along with what a bare majority of his co-workers want. But I don't see why that's true. We allow the majority to decide what government ought to do because, in the end, government must decide how it it to exercise its limited powers. But there is no corresponding argument that there must be a single contract between employers and a collective of workers.  Some people may want that, but other arrangements are possible. Indeed, roughly 93% of all private workers are employed under these "other" arrangements.

Monday, March 02, 2015

Building trades and right to work

It's not going to happen, but some people argue that there should be a carve out from right to work legislation for the construction trades. Such an exception would, I am told, be unique to Wisconsin.

The justification would be that unions provide training and need dues in order to provide it. The problem is that this does not seem to be the case. WMC, and other proponents of right to work, have made the claim that employers provide 95% of the training funds spent by trade unions. PolitiFact says this isn't true. I think PolitiFact has it wrong; I know that they are looking at it in the wrong way.

The question is not where the funds "originate." All of the money originates with the employers and, at some point, comes to belong either to the employees or unions. Nor is the question who controls the funds once they leave the employer. It seems to me that we want to know whether the training funds are from general membership dues or whether they are a separately negotiated payment from the employer to the union. Based upon what I know, it is not "mostly false" that this is the case; it is absolutely true.

If that's right, then the reduction in dues need not affect the payments for training. If employers wish to continue paying for training conducted by unions - if, indeed, this is a valuable and critical benefit provided by unions - they can continue to do negotiate such payments. Because right to work would not require unions to train non-members, it is possible that fewer workers would receive this training. But is it likely? If the training provided by unions is, indeed, essential, those workers who receive it will have an advantage in seeking employment, i.e., they will be more valuable to and desired by employers. If that's so, then they will have an incentive to be in the union.

I have not heard that the construction industry has collapsed - or that buildings are falling down - in right to work states like Texas, Florida, North Carolina and Virginia. Perhaps this is why.

Cross posted at Purple Wisconsin

Sunday, March 01, 2015

Yes, the John Doe is on life support

Three weeks ago, I had a column in the Crossroads section of the Milwaukee Journal Sentinel, calling the John Doe investigation all but dead. An article in the paper, quoting me and a number of other legal experts, suggested the same thing.

Last week, Brendan Fischer of the Center for Media and Democracy wrote that it may not be. He says that, in a recent case seeking to end the investigation, the Seventh Circuit rejected claims that the Doe relied on an unconstitutional interpretation of campaign finance law

No, it didn't. Fischer's statement is wrong. The point is not even arguable.

In O'Keefe v. Chisolm, the court did not reject those claims; it declined to consider them. It held that the federal Anti-Injunction Act prohibited an injunction against the John Doe procedure. This was a procedural ruling that did not itself reach the merits of the Doe.* The closest that the court came to the merits was in dismissing personal claims against the prosecutors. Those claims could prevail only if it was "clearly established" at the time of the investigation that the theory upon which it was based was unconstitutional. The Seventh Circuit said that it might turn out to be constitutional to ban coordinated issue advocacy. But to say that an issue is unresolved is not to resolve it.

These are pretty elementary mistakes on Fischer's part. First year law students learn the difference between decisions on jurisdiction and decisions that reach the merits of the claim. They are taught the distinction between concluding that a claim is, as lawyers say, "colorable" and concluding that it is correct.

In any event, my argument is not that the Doe fails because banning coordinated issue advocacy is unconstitutional, although it may be. But even it's not, it remains the case  that 1) Wisconsin has not adopted a constitutionally adequate definition of coordination, 2) Wisconsin has not clearly made whatever ban on coordination it has applicable to issue advocacy and 3) based on press reports, the activity that is being investigated is not coordination.

Indeed, a principal part of the Seventh Circuit's reasoning in O'Keefe was that a federal law suit was unnecessary because the Club could - and did - raise these objections in state court. Not only had it done so, it won before the judge overseeing the Doe.

Indeed, the weakness of the Doe is illustrated by the supposed "smoking gun" e-mails that Fisher cites. None of them are evidence of coordination. At most, they suggest - they don't establish -  that Governor  Walker may have raised money for advocacy organizations. 

Fischer calls these activities "entirely unprecedented" in Wisconsin. Really? When Barack Obama came to town last fall, he appeared at a $16,000/plate sushi dinner. Where does Mr. Fischer think the money went? (In fact, the Presidents' frenetic fundraising for SuperPACs became something of a joke during the last election cycle. It wasn't a crime.)

Politicians often urge people to give money to political action committees and other organizations who will spend money that might benefit the politician making the request or those that she favors. If raising money constitutes coordination, that would, on the prosecutors' theory of the Doe, make these committees or organizations subcommittees of the requesting politician. Because the donations would almost certainly exceed the contribution limits (and wouldn't be reported as contributions to the requestor), crimes could be charged. That's not the law and, if it was, it would be unconstitutional.

I don't say that the John Doe is dead because there is a slim chance that it could be resurrected. But it doesn't look good. It never did.

*The plaintiffs in O'Keefe are seeking review in the Supreme Court. The Seventh Circuit's ruling that the Anti-Injunction Act can be applied to an action brought under section 1983, a federal civil rights law, seems inconsistent with the approach adopted by the Supreme Court and followed by every other Circuit Court of Appeals to have considered the issue. I and my colleagues at the Wisconsin Institute for Law & Liberty filed an amicus brief in support of their petition.

Cross posted at Purple Wisconsin

Tuesday, February 24, 2015

More on TIFs, Schools and Streetcars

A recent Politifact undertook to fact check Alderman Joe Davis' statement that the use of Tax Increment District revenue to fund the Milwaukee streetcar would cost the Milwaukee Public Schools revenue. The newspapers' verdict is that Davis got it "mostly wrong." That's not a fair evaluation. My colleague Mike Fisher wrote to the author, James B. Nelson, explaining what he got wrong. Mr. Nelson did not respond, so I'll share Mike's critique at the conclusion of this post.

At Urban Milwaukee, MPS teacher Jay Bullock says that MPS can't be hurt by the loss of tax base that would be caused by TIF financing of the street car. Purple Wisconsin blogger Cindy Kilkenny, who initially didn't think so, says Jay is right. She shouldn't have given up so easily. There is more to be said here too.

Let's start with Jay. Under most scenarios, it would be city taxpayers and not MPS itself that would be are hurt by the street car financing. This is because, as he points out, school districts are subject to revenue limits. If MPS had more tax base available to it, the revenue limits - in any given year - would remain the same. Assuming that it is already spending the maximum amount that it can (and it is), then it would be normally be unable to collect more in taxes and spend more money. It might be able to reduce tax rates, but the reduction would , to some degree, be offset by a loss in state equalization aid because the district is now richer. State equalization aid works by trying to "equalize" school districts' tax base per member. How much the offset would be depends on a whole host of factors that would differ from year to year. Jay's argument is that the district would still have the same amount of money. (Of course, schools are only part of the property taxes paid by city residents.)

So assuming that we don't care about the taxpayer, all else equal, you might think that MPS should be indifferent to an increase in its tax base. But there are problems with the notion that a loss in tax base cannot hurt MPS. Everything else does not stay equal. First, it is possible for school districts to exceed their revenue limits through referenda. That's hard to do, but it happens. Second, state aid doesn't stay the same in relation to revenue limits. Indeed, after a substantial increase, state aid as a percentage of the cost of k-12 education in Wisconsin has been declining. When that happens, school districts have to pick up the difference and it is easier to do that if you have a robust tax base. If I'm MPS and I care about the future, I should not be indifferent to my community's tax base. Equalization aid notwithstanding, its better for a school district to be rich than it is to be poor.

Jay then channels developers in arguing that TIF districts don't cost taxpayers - or any other taxing entity - any money. That is sometimes true and sometimes false. The conceit of tax increment financing is that the city needs to spend money to support particular development or the development won't happen. The story is that using the additional tax revenue to generate that development to "repay" the city for this support doesn't hurt taxpayers because, without the support, there would have been no development and no additional taxes.

This is why - before a TID can be formed - the relevant municipal authorities must make a finding that the development would not occur "but for" the municipal subsidy. In reality, this "finding" is often untrue.

But in the case of TID funds being used for the Milwaukee streetcar, we know that it is untrue. We know that the development generating the tax funds to be used for the project would, for the most part, be generated in the absence of the streetcar because they are already being generated. The TID revenue to be diverted to the streetcar comes from an existing TID, No. 56, and a newly created TID, No. 82. Here are the facts as explained to Mr. Nelson by my colleague:

1) TIF 56:  The development that this TIF was created to support has already taken place.  The property in the TIF consists of the Marine Terminal Condominium and the two Harbor Front condominiums.  They are built.  The improvements made by the city, consisting mostly of extensions of the Riverwalk along these properties and street and lighting improvements, have been almost completely paid off.  In the ordinary course these properties would revert to the normal tax rolls and the property taxes paid on them, which are substantial, would be used for general municipal purposes including MPS.  By extending the TIF, the Mayor is excluding these already developed and valuable properties from the tax rolls for another 15 or 20 years.  There will be no new development in this TIF district as a result of the streetcar.

(2) TIF 82: Consists of two parcels, one that will be the Couture and one that will be the 633 office building.  The 633 building is already under construction.  In the normal course the increased tax revenue from this building when completed would roll into the normal city tax rolls and could be used for general purposes including schools.  Instead, by including the 633 Building in TIF 82, the taxes relating to this new and expensive office building will go to support the streetcar.  The Couture is the only development within either of the two TIFs that even arguably fits the template of a building that would not be built if not for the TIF financing.  Of course, it was planned long before the TIF was created but it may be true, as developer Barrett says, that he will abandon this project without the streetcar.  So it is possible that the incremental tax revenue that will accrue from the Couture project would actually fit the TIF paradigm.
Bottom line:  no TIFS, the tax revenue from the three condominiums and the 633 building become part of the City’s normal tax base.  As noted, TIF financing for the streetcar has absolutely nothing to do with the development of these buildings as the condos are already there and the 633 project is financed and already underway.

So the TIFs really just remove these four properties from the normal tax rolls for 15 or 20 years and the general revenue for the City that they would otherwise produce goes to streetcar construction instead of other city needs including the schools.
Now it may well be that spending more on schools won't happen because MPS would have "taxed to the max" anyway and doesn't want to - or can't - get voter approval to spend more. Maybe the money gets spent of police protection or community centers. Maybe city taxpayers get a break. The point is that the City of Milwaukee taxpayer is footing the bill for this streetcar just as much as if the Mayor had raised tax rates to get the money.

Now, of course, if you believe that human beings have changed so that what was once a failed technology will now miraculously cause millions - even billions ! -  in new development, that reality won't bother you. If you're a developer that likes the idea of the city manipulating transit to dump customers on your front step, it's all good. But it's wrong to pretend that you aren't making city taxpayers foot the bill.

Cross posted at Purple Wisconsin.

Another performance of Much Ado About Nothing

We talk a lot about civility in public discourse and, of course, there's a certain amount of judgment in what is civil and what is not. I, for one, would hate to see writers lose their distinctive voice through fear of offending. In my mind, civility is more an art than a science; more a collection of principles than a set of rules.

One of the principles ought to be a strong presumption that people who disagree with you aren't dishonest or evil. They usually will have a reason for thinking the way that they do even if you disagree with that reason.

This principle was recently violated - strongly and pervasively - by the reaction to School Choice Wisconsin's request for student directory data from certain school districts outside of Milwaukee and Racine. (Full disclosure: I and my colleagues at WILL represent and work with SCW on a variety of matters. It is one of the most professional policy and advocacy shops to be found.)

Some of our friends on the left lost their composure and behaved as if SCW had done something heretofore unknown and legally questionable. Some argued - the lack of grammatical prose and logical rigor made it hard to tell - that SCW or schools participating in the choice program or some other folks would or could use the information for a variety of criminal purposes.

First, it is absolutely clear that school directory data is not confidential. If you doubt this, let's read the law. Sec. 118.125 says that "directory data may be disclosed to any person" provided that parents or guardians or are aware of the type of information that has been designated as directory data and told them that they have fourteen days to object to its disclosure. Second, this is not some scary or nefarious or unknown provision of the law. It allows basic student information to be made available to people who might offer opportunities and services of potential interest to students and their parents. Camps, sports programs, colleges - all have legitimate reasons to contact families and families may well have an interest in hearing from them. Third, what SCW wanted to do - and will be doing - is perfectly consistent with the law and that purpose. It wants to make parents aware that the school choice program has been expanded to their area and tell parents how, if they are interested, to learn more. This is about as threatening as a letter from a drum and bugle corp or a local college.

This is why SCW was willing to amend its request at the request of the Green Bay School District. It didn't have to (and wasn't necessary to do so), but it could because all it wanted to do is send postcards to parents directing them to its website if they wanted to learn more about the program. SCW was not interested in a fight, it was interested in providing families with information and, to its credit, the Green Bay district agreed.

Could someone abuse a request for directory data? It's possible but this is not a new provision in the law. It was there in 1985 when, as  a young lawyer representing the West Allis-West Milwaukee school district, I supervised the production of district records in a school desegregation case. If anyone has ever misused the law, I am not aware of it.

So the "story" was a nothing burger. It should have been easy to see that, but when you begin, as some people do, with the assumption that people you disagree with - say proponents of educational choice - are bad people, it's easy to miss the obvious and end up in the fever swamp.