Thursday, October 16, 2014

Demands and reality

What is the first thing to know about the Wisconsin Jobs Now! and the demand that the Governor unilaterally raise the minimum wage using the "authority" supposedly conferred by Wis. Stat. sec. 104.02.

It seems a just a tad partisan and hypocritical.

I run a 501(c)(3) and I understand that, if your organization believes that left-leaning policy solutions are in the public interest, your activities will tend to lend comfort to Democrats and vice versa. That doesn't make your activities "partisan" in a way that runs afoul of the tax laws or that could conceivably trigger campaign finance regulation.

But sec. 104.02 has been on the books for a long time. Did WJN - or like minded groups (I'm not sure how long WJN has existed) - ever call on Governor Doyle to unilaterally raise the minimum wage? The minimum was raised in the Doyle years (as it was during the Thompson administration) but certainly not to the "family supporting" level that WJN calls for.

Here are a few things to keep in mind.

First, were Governor Walker or any other governor to use sec. 104.02 to unilaterally raise the minimum wage, there would be one serious lawsuit. Since enacting sec. 104.02, the legislature has subsequently fixed a minimum wage. For the Governor to conclude that increase is not "enough,"  would raise separation of powers. Even if that weren't so (or it could somehow be discarded, say, because it could be argued that the legislature really intends the Governor to supersede its enactments), sec. 104.02 does not articulate an intelligible principle on which a "living wage" could be determined. A wage conducive to some one's "welfare" is no guidance at all. If acted upon, sec. 104.02 would be an unconstitutional delegation of legislative power - and, no, the legislature can't decide to do that.

Second, it is unclear that, by its terms, sec. 104.02 could even be invoiced to raise the minimum wage. I don't doubt for a minute that $ 7.25/hr is not a lot of money. It would certainly be tough to support anyone but yourself on that income - and even a single person will struggle if that's all she has to live on.

But sec. 104.02 doesn't say that the requisite wage should be enough to support a family. To the contrary, the statute only says that a worker must be paid a wage conducive to "his or her" welfare. As little as it is, a full time job paying $ 7.25/hr results in an income above the poverty level for a single person. Government benefits will, moreover, significantly supplement those earnings. While it is certainly the case that a low-income worker may have children to support, sec. 104.02, even read for all its worth, does not address that problem.

Third, that brings us to the real problem with all of this. A minimum wage job - or even one that pays slightly above the minimum wage - won't buy a middle class standard of living.  But WJN and similar organizations believe that the only thing that stands in the way of more money for low wage workers is to demand it - to say "yes" to a more than 100% increase in the minimum wage as if it were some law of nature that every one's labor is worth at least to $15/hr to whoever has hired him.

But there isn't. If you prohibit anyone from working for less than $15/hr, there will be certainly be some  workers who benefit. Others will lose their jobs, see their hours reduced or never be hired in the first place. The return to labor saving technology will increase and more workers will be replaced by machine. Prices will go up and business start-ups will go down.

Proponents of minimum wage increases like to think that these adverse impacts will somehow be mitigated by the supposed "multiplier effect" of more spending by low income workers. But since the minimum wage imposes costs - on consumers, the newly unemployed and business owners - a minimum wage increase does not result in more spending. It just shifts it around. Maybe this "shifting around" of spending will result in more economic activity, but that seems unlikely.

Whether an increase in the minimum wage makes everyone - or even poor persons better off (most minimum wage workers are not poor) - is a question that requires recognition of its costs. WJN's campaign - which is nothing more than an assertion of the self evident - ignores them. Demanding the world you want does not make it possible.

Finally, I'll end with a observation for my fellow conservatives. We are right to note that a minimum wage increase might well hurt more people than it helps. We are right to say that distorting labor markets is not way to help poor people. But we ought to acknowledge that, once we recognize that the marginal value to an employer of certain workers will not exceed a relatively low level, we need to also recognize that this is not the same as the value of those workers as people. Some folks are going to need help - preferably on a temporary basis and from voluntary sources - so there must be some sort of safety net. Raising the minimum wage, however, does not appear to be a very good way to provide it.

Cross posted at Purple Wisconsin.

Wednesday, October 15, 2014

On not understanding school choice

One of the oddest arguments made about school choice is, as argued here, that it is a "subsidy for the wealthy ..." and somehow enriches ... well, I'm not sure who.

In a recent Milwaukee Journal Sentinel column, Christian Schneider pointed out that money sent to educate choice students in private schools do not necessarily "cost" the public schools anything. This is because, if the choice program were eliminated, not only tax dollars would return to the public schools. So would the students. Depending on what it would cost the public schools to educate these students, the end of choice would not benefit public schools at all.

Properly managed public schools should lose money only if the marginal cost of educating students lost to schools participating in the choice program exceeds the revenue lost as a result of their departure. Poorly managed public schools with large fixed costs - say districts with huge unfunded legacy costs paying substantial sums to persons who no longer work there or who have large entrenched bureaucracies - may lose money. But that's because those districts need state revenue in excess of the cost of educating current students to pay retiree payments or administrators now serving fewer students.

This is incontestably true, but seems to be a hard concept for choice critics to understand or, at least, to respond to. So the argument is often made that school choice is some sort of "privatization" (it is in one sense, but not in another) that "enriches" somebody. Foundations such as Bradley, Walton or DeVos that spend a lot of money to promote parental choice are said not to "care about" poor kids although, if they don't, just who they do care about it and why they are spending millions of dollars to direct money to poor families is unclear.

It is certainly not students and their families are enriched. In Wisconsin, a family's income must be at the poverty level to participate in the statewide program and no more that 3 x the poverty limit to participate in Milwaukee. It's certainly not school operators. Asking schools to educate kids for amounts well below the average spent in public schools is not a recipe for building wealth. (To be sure, one may be able to find examples of school operators misusing funds but public funds get misused as well. Sadly, such is human nature.)

One might make the argument that taxpayers have been "enriched" because children in choice schools receive an education for less than they do in public schools. Although evidence is limited, these kids seem to do at least as well if not better on some measures.

Cross posted at Purple Wisconsin.

Tuesday, October 14, 2014

What is an Attorney General to do?

So Brad Schimel is being criticized for saying that he would have felt it his duty to defend bans on interracial marriage in the 1950s.  I would not have answered the question the same way but the attacks reflect a misunderstanding of the law and the office that Schimel is running for. To his credit, he understands both. Here is what you need to know.

First, he was not asked if he would defend a ban on interracial marriage today. He certainly would not. Such a ban was declared to be unconstitutional in 1967. No legislature would pass it today and no competent lawyer would defend it. Indeed, virtually every lawyer under the age of 72 was trained after this issue was resolved. Thus, if you hear attacks on Schimel that say he "wants" to "go back" to the 1950s, they are either demagogic distortions or based in a misunderstanding of the question.

Second, the role of the Attorney General is not to defend only those laws that he or she disagrees with. It is not to act as a judge who weighs the arguments and decides which of them are right. His or her job is to defend the state as long as one can make a colorable legal argument in its favor.

So the question that was put to Stimuli was effectively this. Even though we all know that there is no colorable argument that a ban on interracial marriage is constitutional from any time between 1967 and today, what would you have done had you been asked to defend such a ban in the 1950s?

The easy thing would have been to say he would not have defended it. but Schimel - who certainly doesn't oppose interracial marriage - took the question seriously. He did so because he has criticized Susan Happ - who has essentially said that she won't defend any law that she thinks should be struck down - for failing to understand what the state's lawyer is supposed to do.

So what should Schimel have done in the 1950s?

In answering that question, his personal feelings - either as they actually exist in 2014 or as one imagines they might have existed in 1954 - are irrelevant. If he had been the AG in 1954 and asked to defend a ban on interracial marriage, he would have had to survey the law at the time and see if the state's position in favor of a ban was clearly unconstitutional. He would have found no Supreme Court decision holding that a ban on interracial marriage was unconstitutional. Unfortunately, he would have found an 1883 decision holding that it was not. So he would have had to decide whether he could make an argument that case should be overturned.

Maybe he would have concluded that he could. Maybe he would have decided, for example, that the decision in Brown v. Board of Education ended the doctrine of separate but equal in areas other than public schooling. Ironically, he might have been impeded in so concluding by the way in which then Chief Justice Warren wrote Brown. Warren, wrongly in my view, seemed to base his decision on social science evidence regarding the psychological impact of school segregation rather than a far more robust rule of no racial decision-making ever. (The problem, you can see, is that you risk losing your principle of racial equality if the psychological evidence turns out to be wrong or inapplicable in particular context.)

 As a constitutional lawyer, I might have said that I would have relied on Brown to argue that existing precedent should be overturned. If I wanted to be more careful, I might have refused to enter the way back machine and say what I would have done had I been born in 1906 instead of 1956.

As a prosecutor, Schimel answered the question by resort to the default position. He would have to defend the state's laws. This is mostly true. Whether it actually would have been true in 1954, would require an analysis that Schimel has not had an opportunity to make. His instincts were consistent with the nature of the job he is running for. His answer says nothing about his attitude toward race. It does say something about how he views the law and the job that he is seeking. And what it says about that actually reflects well on him.

Cross posted at Purple Wisconsin.

Sunday, October 05, 2014

Do they have wickedness thrust upon them?



Continuing the theme of seeing what we want to in art, we also saw Wicked at the Gershwin Theatre in New York. Lavish production combined with a heavily troweled musings on moral ambiguity. One of the themes is the way in which ineffectual political leaders (here, the Wizard) create scapegoats (Elphaba and the animals) to deflect attention from their own failings.

Standard commentary has drawn a parallel between demonization of the Witch of the West and talking goats (see what I mean by heavily troweled - one of the scapegoats literally is a goat) and the war on terror. The wizard is Bush, man !

But I see it differently. Maybe the Wizard is Obama and the scapegoats are Republicans and conservatives accused of crimes that they did not commit.
The silly meme of a “War on Women” (which is either uninformed or unserious) and the enflaming of racial passions as an electoral strategy seem like classic instances of scapegoating to me.

Nothing Obama has tried has worked very well. Six years into his administration, we are mired in a historically weak recovery. The best that can be said about the Affordable Care Act is that it might be a nonevent and, if so, only because most of its supposedly “essential” provisions have not been implemented and the cost of subsidies has not yet hit home. The reset on our relations with the world has done nothing but reverberate against us. Hopes for a transformative presidency – one that would heal the sick and still the waters – have been mocked by events.

So, just like a Wizard without magic, our President without hope must find some one to blame. This explains the hysteria – the sophistry – behind these themes. As Jonah Goldberg puts out, “women’s health” has become another word for abortion on demand. Respecting the views of a few employers with religious objections to paying for what they believe to be abortifacients becomes compelled breeding.

Criminal investigations – something that ought to be conducted dispassionately – become backdrops for race baiting.  Pay no attention to the failed programs behind the curtain.

Cross posted at Purple Wisconsin. 

Friday, October 03, 2014

Thanks for spelling my name right, but get your facts straight.

I noticed that Purple Wisconsin has added Jeff Simpson as a blogger.  I suspect that this won't end well, but I have no other public comment.

Mr. Simpson has decided to attack me and the Wisconsin Institute for Law &  Liberty. I have no problem with that. Getting attacked by lefties is not bad for business when you run a conservative/libertarian non-profit and, in any event, everyone should be willing to face criticism. I am not going to respond to his points about Act 10 or the merits of our cases (mostly because he doesn't make any beyond asserting his disapproval), but there are a few - well, actually more than a few - errors to correct.

First, he says that WILL receives the "vast majority" of its funding from the Bradley Foundation. This is not quite right. We began operations in June 2011 with start-up funding from Bradley, so most of our money did come from the Foundation in 2011 and 2012. We needed a record of accomplishment before we could raise much money from others. Now that we have that, Bradley will account for only about 35 % of our revenue in 2014 -  which isn't even a "majority." Last year, it was about half which strikes me as decidedly "unvast."  The 2013 numbers are in the public domain. If he wanted to know about this year, he could have asked. I'll talk to most people.


And, for the record, the Bradley Foundation - or Mike Grebe - never tells us what to do. They find out what we've done when they read it in the paper.


Second, Mr. Simpson misdescribes the lawsuit we brought against the Kenosha Unified School District. It was not at a "standstill" or "going nowhere" until the composition of the school board changed and we were somehow "handed" victory. The judge had already ruled that we had a substantial probability of success on the merits, i.e., we were likely to win. There was no dispute that the contract between KUSD and the union violated Act 10; only whether Act 10 was constitutional. Last summer, the Supreme Court - like the Seventh Circuit before it -  upheld Act 10.  In other words, we were right. The school board acted wisely in settling and cutting its losses. (Actually, the union is still fighting, but that's another story.)

Third, in describing our lawsuit against the Madison School District, Mr. Simpson says that Act 10 was "stayed" at the time that the district negotiated non-Act 10 compliant contracts with its unions. No, it wasn't. There was only a declaratory judgment which was ultimately reversed. That did not "stay" or "enjoin" the law.

The district and union are arguing that, by bring a lawsuit that they ultimately lost, the union is  entitled to continue to implement two illegal contracts - including one that will not not even go into effect until the beginning of the 2015 school year. That is an extraordinary proposition and someone ought to test it in court.

Fourth, Mr. Simpson seems to believe that we think the problem with the Madison contract is that it gives teachers a .25% raise. Not at all. If school districts comply with Act 10, we have no objection to larger raises. Indeed, one of the things that we like about Act 10 is that it permits school districts to treat teachers like professionals instead of interchangeable cogs in a machine. It allows them to use bonuses and merit pay to reward good teachers - something that unions have traditionally resisted. So, yes, raises - even large ones - for those who deserve it.

In any event, Mr. Simpson ignores the fact that what makes Madison's contract out of compliance with Act 10 is not the size of the base pay increase. It is the provisions for health insurance and pension contributions - both of which cost taxpayers quite a bit of money. It is the negotiation of work rules that protect non-performers and impede flexibility. It is the coerced "agency fee" payments - exacted from teachers who do not wish to financially support the union.

Act 10 limited the circumstances under which the general public could be placed at a disadvantage vis-a-vis public employee unions who could compel secret negotiations with public bodies subject to arbitration in the event of impasse.  If I want my school district to cut taxes, fire incompetent teachers or teach the classics and improve STEM education, I don't get those advantages.

Finally, Mr. Simpson says we are "attacking public schools." That would be true only if "public schools" were synonymous with unions and the adults who run the schools. They are not. He wants us to stop wasting "our children's money." (No, I'm not going to razz him for misspelling children. That's tacky and, besides, glass houses and all that.) What we are trying to do is ensure that "our children's money" is well used. Public schools in Wisconsin - and in the US generally - have enjoyed substantial real increases over the past 30-50 years. We spend a lot more on K-12 education than we used to spend and more than just about any other nation on earth. Yet we have not seen corresponding increases in educational attainment or outcomes and we do not compare well with other countries - all of whom seem to do more with less. We don't necessarily want to reduce spending. But we do want to get more for what we spend.

I could go on but I think that's enough for now.

Cross posted at Purple Wisconsin.

Wednesday, October 01, 2014

You can't take it with you

The week before last, my wife and I spent a few days in New York. We went to a few shows, including the preview run of - sorry, but he's a big name -  James Earl Jones in the reprise of the 1936 Broadway hit "You Can't Take it with You" at the historic Longacre Theatre (48th just past Broadway).  I highly recommend it. It starts slow but finishes fast. And Jones' character delivers one of the best takedowns of the abuse of Congress' Commerce Clause powers - really - that I've ever heard. I'll get to it at the end.

What struck me about the play is the way in which we can all find what we want in a work of art. I have a bias here unrelated to politics. My mother was a painter (who did not share my politics). She always insisted, however, that she was not the arbiter of the meaning of her work. She was trying to lay bare something real about the human condition but translating that into politics or rules about how to live in the world went beyond what she had actually done (whatever her intent). She was simply provoking a thought - or illuminating a truth - that could be taken in multiple - even contradictory - directions.

I thought the play to be  a libertarian tour-de force. Jones' character is patriarch of the odd Sycamore family - a lovable group of folks who do what they want - write bad plays, dance poorly, make (and sometimes explode) fireworks in the basement -  without regard to what others think and even for what makes sense. He won't pay his income tax (because he doesn't "believe in it" and doubts that the federal government will use his money wisely). His eccentric family insists on its freedom to be who it wants to be. I found my political presumptions affirmed.

But others see it differently. Kristine Nielsen, who plays Jones' daughter, says that the play is about -and supportive of -  "collectivism." My initial reaction was that Nielsen, who is a good actor, is a lousy historian and political philosopher. Eccentrics and dissidents don't fare well in collectivist societies. When the collective is empowered, then individuals who do not do what the collective wants - whether (as in the collectivist Third Reich), it is to hate the Jews or (as in the collectivist Russia ) it is to be gay - don't fare well. Nielsen can be a great actor and not appreciate the tension between the scope of collective decision-making and individual liberty.

But I see what prompts her to say what she did. In "You Can't Take it with You," one of the endearing things about the Sycamore family is that they care about each other and are open to caring about others. This, according to Nielsen, makes it "collective." She apparently believes that no one needs to be free in how they use their money or make their living as long as they are free in whatever realm the state decides to consider "personal." I think that's demonstrably false but that's not where I want to go here.

My guess is that Nielsen believes that political decision-making - where we get together and vote on who gets what - is an example of us caring about each other, while market decision-making - where we voluntarily enter into exchanges with each other - is not. 

There is absolutely no reason to believe this is so. A political decision will only reflect what most of us want. There is no reason to think that it will reflect concern for "all of us" as opposed to most of us or however many among us have managed to use the government to get what we want. 

A market system requires one side of a transaction to deliver what the other side wants. No one can coerce anyone to do what he or she does not want to do. If I want someone to give me something, I must give them something. I cannot take it. I must, in that sense, "care" about them.

(I understand that some people will suggest that the government may act to force people to support private interests - crony capitalism. That does happen - particularly where the government is given plenary power to "manage" the economy. But it's not my program.)

The criticism of the market system is that it is not perfect. The existing balance of power - who has what resources including property and talent - might be such that people must "accept" transactions that some observer believes should be more advantageous, i.e., a job that does not pay enough or rent that is "too damn high." Some people believe that political decision-making should be deployed to "improve" market outcomes.

Perhaps. For a variety of reasons, I think that this is mostly - but not always - wrong. But what I do know is that solving the puzzle of when and where the government must intervene is not materially aided by the notion of whether we should "care" about each other. Market economies and those in which the government commands who gets what - and all the points in between - are about how we decide the best way in which people can serve each other.

The eccentric Sycamore family teaches something about opposition to authority. It tells us little about coerced submission to authority which is what political collectivism is.

So here is Jones' character's line about interstate commerce. When IRS collector tries to him why he should pay income taxes, he invokes the government's need to regulate interstate commerce. "There are 48 states," he says, "if it weren't for Interstate Commerce, nothing could get from one state to another."

Grandpa Sycamore's reply: "Why not? Have they got fences ...?"

Yes,  I understand why you need federal oversight of interstate commerce. But the notion that, without a significant degree of regulation, nothing "could get" from one place to another is category error.

Cross posted at Purple Wisconsin

Tuesday, September 30, 2014

What's the problem with plagiarism?

Not much, according to the Journal Sentinel editorial board. It won't defend Mary Burke -  lifting, without attribution - from the work of others, but it finds the controversy to be a side show. The real question is whether the ideas expressed by the language that Burke stole and passed of as her own are "good ones?'

My guess is that if I lifted one of their editorials and passed it off as my own, the Journal Sentinel's concern would be a tad more urgent. They wouldn't absolve me because the column was "good," they'd go after me because it was "theirs" and would consider me less than honest for taking it.

And rightly so.

The problem is not that Burke borrowed ideas from others. There are few original ideas in politics and the fact that she would recycle policies from other Democrats is not surprising. The problem here is not the quality of her jobs plan - the ideas she passed off as her own were equally bad when proposed by the people who actually wrote them - but one of general competence and integrity.

Professionals - heck, high school students - know that you do not present others' work as your own. If you want to quote the work of others, you attribute it to them. To fail to do so is fundamentally dishonest.

The editorial board excuses Burke by dismissing the plagiarism as a failure to be "careful." Two things.

First, if this is the fault of a staffer or an oversight by Burke herself, it shows that she spent no time, as she claims, "studying " the plans of others. If she had, she'd have known that her plan was merely a cut and paste job. This suggests that she is either 1) lying about her involvement or 2) doesn't know what every fourteen year old knows - you don't crib from the kid in front of you.

Second, her ad "responding" to the charges makes it worse. In it, she characterizes the criticism of her plan as being that it borrowed ideas from others. That's not it at all and she knows it. It's that she copied them and lacked the intellectual honesty - or professionalism -  to say so.

The ad demonstrates that she still doesn't get it.

Cross posted at Purple Wisconsin.