Tuesday, August 25, 2015

#BlackLivesMatter and Nativism: Demagoguery at work

We see two political sentiments motivating powerful minorities of voters. The first is nativism, seen in the candidacies of both Donald Trump and Bernie Sanders. The targets are illegal - and sometimes legal - immigrants and free trade.

There are some legitimate concerns about the former. A nation ought to have a secure border and need not accept persons in the country unlawfully as a complete fait accompli, entitled to all the accoutrements of citizenship. But mass deportations are both unrealistic and undesirable and our economic woes are not caused by hard-working Mexicans. 

Trump and Sanders' railing against free trade simply highlights their shared economic ignorance. And, no, the fact that you can make money on real estate deals and licensing your name does not mean you understand how governments ought to regulate - and not regulate - markets. It means you know how to get yours. Nothing wrong with that, but it is not necessarily a translatable skill in this context.

But Sanders and Trump are doing well (although neither will ever command a majority) and much of their appeal is not about the particulars of immigration policy or international trade, but, as I say, the sentiment. It is about the notion that our problems can be blamed on someone else. They are doing something to us. What we need to do is blame them.

The #BlackLivesMatter movement operates in an equally emotion-laden but fact free environment. There are indeed enormous problems - including enormous problems with violence in the black community - but they are not caused by the police. Even if we assume that all are unjustified, officer-involved shootings are, at most, a rounding error in calculating black victimization rates. Indeed, while the question is vexed, it is not clear that blacks who have contact with police are more likely than whites who have contact with police to become involved in a violent confrontation with officers. 

Anytime a police officer uses force against a citizen a thorough investigation is in order. Because we must allow some people to use lethal force to enforce the law, we must ensure that they use it only to enforce the law and only to enforce it. But politicizing the question is flat out demagoguery.

And it is evasive demagoguery. It is the demagoguery of a grievance industry that has failed to deliver in much the same way as the nativists egged on by Trump and Sanders will fail to deliver.

Cross posted at Purple Wisconsin.

Monday, August 17, 2015

Speakers can't be kicked out of the pool

In a column yesterday in the Milwaukee Journal Sentinel, Emily Mills argues, again, for a blatantly unconstitutional campaign finance scheme. She wants public financing with limits on expenditures. The law is clear that expenditure limits can be imposed on only on candidates who choose to accept public financing. It is also clear that expenditure limits cannot be imposed on those who those who refuse it. The law is clear that independent persons and organizations remain free to spend what they want.

But Mills apparently wants to go beyond that. She wants to stop spending and then permit it to continue on those terms that she approves of. As she puts it, she wants to kick everyone out of the pool and then invite every one back into the pool - if they'll play by the Mills Rules.

But the Supreme Court has said that  you can't kick people out of the pool. You can't prevent people from combining their resources (although you can limit the size of contributions to candidates) and using them to express themselves on candidates and issues.

I do appreciate that people on the lament this robust protection of association and expression just as they increasingly oppose the rest of the First Amendment.  The omelette of equality requires breaking a great many eggs, if you will.

But the law is what it is.

Cross posted at Purple Wisconsin.

Tuesday, August 11, 2015

The unbearable silliness of Trump

There's really no question that Donald Trump's performance in the GOP debate was childish and boorish. Often he simply blustered and stumbled to barely coherent responses, He bragged about buying politicians and stiffing his creditors. He whined about being treated unfairly and confused common standards of decency with political correctness. He asked us to believe that he can bend foreign governments to his will. Yet he can't even handle Megyn Kelly.

In the days since then, he's only made it worse. I understand that Twitter is not exactly a forum for the expression of any thought that is much more than a sentiment, but his feed reads like that of an over fresh high school kid. The man is an embarrassment.

And yet there are people for whom he apparently strikes a chord. They are either willing to overlook his aggressive ignorance and peevish megalomania or, worse, mistake them for virtue. Some of us seem to believe that the more a politician shows disregard for common courtesy and the facts, the more he's speaking "truth" to some imagined "power." They mistake bombast for candor and vulgarity for strength.

When Trump is wrong (and he often is), his supporters see it as being "unscripted." They see his complete lack of depth and detail on any policy question as a commitment to "action" rather than "talk." That no one seems to know what that "action" will be (other than building a wall on the border) does not matter. The guy builds a few casinos, licenses his name to a lot more and fake-fires people on television. He'll get stuff done.

Some on the left want to say that Trump offers some kind of unveiled conservatism, but that's preposterous. He is not conservative.  He is a big government crony capitalist who has fed at the subsidy trough and advocated for eminent domain abuse. He is pro-choice (or was, until yesterday afternoon) and a supporter of Obamacare. He has contributed to Hillary Clinton. If anyone in the current GOP field would share Obama's ambitious view of what a President can and ought to do - who would use his pen and phone rather than the tools the Constitution provides - it is Trump.

I am not sure that much of his support can be articulated in political terms. He is, as some one wrote, the first "post-policy" candidate. His proposals generally boil down to "I'll be terrific." He is someone who appeals to voters who judge politicians in the same way that they judge movie stars, mistaking celebrity for competence and peacock bravado for insight. He may be the first sign, as Neil Postman once wrote, that we may well actually amuse ourselves to death.

But nothing is that simple. Trump does tap into a resentment of the status quo that can be found across the political spectrum. He appeals to the belief that there is a "they" out there (including, ironically, guys like him) who are taking advantage of guys like us.  Who better to tame the one-percent than one of their own? His sometimes ugly appeal to nativism - blame Mexico! blame China !-  is present on both the left and the right. Trump wants to build a physical wall. Bernie Sanders wants to build one with trade restrictions.

But he has an appeal to some conservatives as well. For those inclined to the right, there is frustration that our leaders too often assume office and come to prefer power to principle. They don't reshape our government as much as they reshape themselves. Maybe someone who doesn't act like a politician will be different. But, of course, difference is only different. It's not necessarily better.

Because his appeal is to sentiment and not reason, it's just about impossible to argue with a Trumpkin. They have as little patience with reality as he does. They seem to believe that Putin will swoon before the Donald's faux Alpha Male persona. He'll do things that no one else can or will do because … well … just because.

This is a very limited appeal. Trump does worse in two-way match-ups than almost anyone in the GOP field and he will never get more support than what he has now. Sixty-two percent of the public say that they wouldn't vote for him under any circumstance.

And the support he has will erode. It is easy to say you like someone to a pollster, but harder to actually vote for him. When a candidate's appeal is novelty and entertainment and the frisson of poking in the Man in the eye, he has a short shelf life. These things get old and boring.

In the end,  politics is not about emotional release. However real the frustrations of the left and the right, populists like Trump are rarely the answer. The government cannot be seized by a strong personality who will make the world anew. It cannot be restructured by someone who refuses to understand the issues and offers his impatience for them as a virtue. Playground bullying - name calling and strutting - do not constitute discourse.

Eventually the voters - or enough of them because you can fool some of the people all of the time - figure this out. Many of the people who now support Trump haven't thought much about it. But they will.

Trump too shall pass.

Cross posted at Purple Wisconsin.

Monday, August 10, 2015

Schools are not "underfunded" and have sold "local control"

Ernie Franzen says that Scott Walker should listen to local school principals who 1) want more money from the state and 2) want the state to leave them alone to spend this additional funding as they wish. These principals bemoan the fact the local school boards have much less control over school funding and operational decisions than they did just "a few decades ago." He notes that some of them come from Republican areas -  as if school boards in those areas imposed political litmus tests on their hires.

Here is a fact that the legacy media seems allergic to: Over almost any significant period of time you want to look at, per pupil expenditures on K-12 education has increased at a rate well above the rate of inflation. For example, according to the United States Department of Education, from 1987 to 2012, real per pupil spending on K-12 education in Wisconsin increased from $ 7960 to $ 11,946. That is a real increase of 50.1%. This is exclusive of federal funds (which have also increased).

No, that is not a misprint. During the same period that the principals bemoan the loss of local control, local school districts got 50% more to spend. Now, I remember 1987. It wasn't a different world. Urban school districts had challenges. Teachers had to be paid. Children were learning.

During this same period in which school districts received much more funding, certainly we saw improved results. No. No, we actually didn't. By every measure we have, achievement and attainment remained flat. We spent a lot more money and we didn't get any smarter. And while it is true that spending has stepped back a bit since 2011 (although the increase in real spending over the almost any relevant period remains robust),  Act 10, like it or not, also substantially reduced school costs. However you look at it, over the "a few decades." schools have gotten a lot richer and haven't got any better.

Now, I suppose it is possible that schools that enjoyed a 50% real increase in funding while yielding no improvement in results are "underfunded." But it sure is unlikely. In fact, the claim is pretty much preposterous.

There is no doubt that local control has diminished during this same period. School districts have revenue caps and Act 10 restricted the scope of collective bargaining. Federal money is never ever free,
But it hardly lies in the mouths of local school districts to question the founders of their feast. If the state is going to substantially increase its share of the bill for K-12 education, it is going to want to make sure that the money is spent properly. It may do this well or poorly, but it is going to do it.

Cross posted at Purple Wisconsin.

Saturday, July 25, 2015

What was wrong with the Doe

In the wake of the Wisconsin Supreme Court's decision on the John Doe investigation, SpeciaL Prosecutor Fran Schmitz issued a strident statement criticizing the Court's decision. Losing an important case is always disappointing and a lawyer is certainly free to publicly differ with the outcome. But Schmitz' statement is revealing.

He says the Court's ruling "defies common sense" because now someone who contributes $ 25 to a candidate will have his or her name disclosed while someone who gives $ 100,000 to a group who closely coordinates with a candidate will not. That may be so and it may not be desirable, but it is a function of Wisconsin's outdated campaign finance law and not some distortion of that law by the court.

Explaining this stuff in a column length piece is difficult, but here is the problem in a nutshell. The state's campaign finance law applies only to expenditures undertaken for a "political purpose." The statute defines this as anything done to influence an election. Every lawyer with a passing familiarity with campaign finance law knew that this definition was unconstitutional. To avoid that problem, the Government Accountability Board has sometimes - but not always - made clear that the law is limited to express advocacy - calls to elect or defeat a candidate - or its "functional equivalent." Something is the "functional equivalent" of express advocacy only if it is susceptible of no interpretation other than a call to elect or defeat a candidate. This is not my opinion. It is textbook constitutional law.

But the Doe prosecutors were attempting to apply the law to expenditures for things that were not express advocacy or its functional equivalent, i.e., to things that are normally not subject to Wisconsin's campaign finance law. They justified their actions by alleging that these expenditures were "coordinated" with the Walker campaign. The concept of coordination has long been known in campaign finance law but little understood and rarely explored. Wisconsin law does not adeaquately define it or make clear the type of expenditures to which it might be applied.

That's a huge problem. When the state seeks to regulate political activity, it must do so in a very narrow and very clear manner. If it wishes to treat coordinated expenditures as contributions to a candidate, it must adequately define both the conduct that conduct that comprises "coordination" and the content of speech that might be considered "coordinated." This is essential because a failure to do so will deter constitutionally protected speech.

Because its definition of "political purpose" is too broad (and, I would add, because it offers no adequate definition of coordination), Wisconsin's law did not clearly and narrowly apply to coordinated issue advocacy.  For that reason, it could not be applied to the activity being investigated by the Doe prosecutors. While Schmitz might think that such a result "defies" common sense, every court that has considered the merits of his position has rejected it. The judge presiding over the John Doe proceeding itself rejected it. The United States District Court for the Eastern District of Wisconsin rejected it. (While the result in that decision was reversed on appeal, the reversal was on procedural grounds and not the merits of the prosecutors' theory.) And, now, the Wisconsin Supreme Court has rejected it.

If that's not convincing enough, the Doe decision was very much in line with a  decision of the Seventh Circuit Court of Appeals which, in a case that did not involve allegations of coordination, also limited the scope of Wisconsin's campaign finance law to express advocacy. It may well be possible for the legislature to pass reasonable disclosure requirements for certain forms of issue advocacy that have been coordinated - in very clearly defined ways - with candidates. If Mr. Schmitz wants the name of that $ 100,000 donor disclosed, he ought to ask the legislature to rewrite the law, not try to throw people in jail.

And therein lies the real tragedy of this episode. I have no problem with lawyers talking aggressive legal positions. I frequently tell my colleagues that if we don't lose a few cases, we aren't trying hard enough to push the law in the right direction. But we don't have the power to send men with guns to people's homes. We can't lock people up. Particularly when the conduct in question involves constitutionally protected political speech, it is absolutely not proper to advance aggressive theories of the law in pursuit of criminal prosecutions.

And this brings us to the raids. Schmitz objects to the Court's characterization of the details of the raids. It doesn't matter. Let's step back and consider what happened here. At the instigation of the Democratic prosecutor of Milwaukee County, a five year long investigation into one side of the political spectrum was conducted. In it's initial iteration, it found almost nothing that it set out to find. That Democratic District Attorney doubled down and launched a new probe. In aid of this latter investigation, prosecutors blanketed Wisconsin's conservative infrastructure with astonishingly broad subpoenas and launched pre-dawn raids on the homes of certain activists. They told the targets that they could tell no one what was being done to them.

There is no dispute about any of that and, quite frankly, other details about the raids don't matter. If true, they merely aggravate the offense. Treating political activists like drug traffickers is highly unusual and sends a clear message to others. Get involved in politics and you may be treated like a criminal.

While Democrats are decrying the state Supreme Court decision, they ought to be relieved. It would have been short work for a Republican prosecutor to launch a similar probe into Democratic operatives. That would have been just as wrong, but if the Doe had been permitted to continue, aggressive investigations of one side by the other would have become the new normal in Wisconsin politics.

And that would defy common sense.

Saturday, July 18, 2015

Oh, please! The GOP did not "end the weekend."

In describing last week's budget, a number of commentators have suggested that the legislature has "ended the weekend." This is because state law will no longer forbid people from working seven days in a row without the permission of the government. Wisconsin will now permit them to do so voluntarily. Critics fear that consent will be "coerced."  Such coercion would, of course, be illegal and, while it would also be unlawful to fire an employee for complaining of coercion, some workers may be reluctant to do so and retaliation might be hard to prove. Coercion might have happened under the old law (i.e., employers demanded seven days in a row even though it was illegal), but it is certainly easier to establish that a person worked seven days in a row than to prove he did not "really" consent to do so.  One commentator went so far as to say that, under the new law, a day off  will be restricted to the "privileged few."
Here's a fact little known by our friends on the left. In the actual world (you know, the one we really live in), all sorts of good things exist that the government does not make mandatory. We know that the GOP did not end the weekend. We know that days off will not be limited to the "privileged few."  We know these things because there are 37 other states that permit people to work seven days in a row. The weekend is alive and well in each and every one of them. In the vast majority of cases, employers have to offer time off in order to attract workers.

It certainly is possible that there will be some cases in which persons who do not want to work a seventh day will feel pressured to do so -  just as, under the old law, there have been cases in which persons who did want to work seven days in row were prevented from doing so. I have no way of knowing which group is larger, but I am fairly certain that the government does not either. Even if we assume that the former group is much larger than the latter, I have no way of knowing how employers react to an absolute prohibition on people working seven days in a row. While it was possible for employers to ask the government for a waiver, doing so is expensive (for both taxpayers and employers) and there is absolutely no reason to think bureaucrats will have any way of knowing when permission "should" be granted.

Certainly a mandatory day off law will impose inefficiencies and increase the cost of labor. Perhaps instead of hiring a full time person, businesses hire two part-time employees. Others may reduce staffing levels. These effects are hard to identify, but they there.

So we know that a mandatory "time-off" law will prevent some workers from doing what they want. It will impose costs on some employees (for example, in the form of reduced hours) and businesses. Those businesses most effected may be Mom and Pops with few employees and less scheduling flexibility.

None of these costs can be ignored. They must be weighed against the benefits of a law that prohibits even voluntary work for fear that some workers will be illegally coerced and unable to prove it. Do the benefits of a mandatory day off requirement outweigh the costs? I don't know, but it seems very unlikely. Freedom should be the default rule. The legislature of Wisconsin - and 37 other states - has got it right.

Cross posted at Shark and Shepherd home page.

Monday, July 13, 2015

There's more to the Obergefell decison than same sex marriage.

I appreciate that people who want civil marriage to include gay and lesbian couples are going to applaud the decision in Obergefell v. Hodges. If you get what you want or what you believe to be right, it’s easy to overlook how it happened. But I want to suggest that all of us, no matter how we feel about marriage, should be deeply disturbed by the Supreme Court’s decision.

 Here’s where you have to start. Five members of a group of nine lawyers decided that the marriage laws adopted by the people in 35 of the 50 states cannot be enforced. These five lawyers – who we did not elect and cannot replace – “found” that constitutional language adopted in 1868 means that no state can define marriage in the way it was defined by every society in human history until 2001. Not only was the traditional view (which was shared by the President and putative Democratic nominee until, figuratively, about six minutes ago) wrong, the Court says, but it was so egregiously wrong that it can no longer be permitted - no matter what a political majority may want.

 Think about this. In applying principles like “liberty” and “equality,” it is essential that courts develop disciplines and limitations that will, as much as is possible, anchor their meaning in some source of authority other than the personal preferences of the judges who happen to be deciding the case. If this isn’t done, then judging becomes indistinguishable from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the "dead hand of the past" but to recognize that it was the consent of a past generation  that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to.

The traditional guideposts and practices that the Supreme Court has developed for interpreting the Constitution’s guarantees of “equal liberty” and “due process” make it extremely difficult to find a constitutional obligation on the part of states to extend their marriage laws to same sex couples. Don’t take my word for it. When Justice Elena Kagan was nominated to be Solicitor General in 2009, , she explained that by “the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage. “

 This is not to say that one cannot attempt to argue for such a right using commonly accepted modes of legal analysis. While I disagreed with her conclusion, Judge Barbara Crabb, in striking down Wisconsin’s limitation of marriage to unions of one man and one woman, attempted to do just that and did it about as well as it can be done.

But in Obergefell, Justice Kennedy did not even try. His opinion might be a persuasive political argument, but it bears resemblance to law. While he suggested that a right of same sex marriage is rooted in the Constitution’s express guarantee of equal protection of the laws, he did none of the work that equal protection analysis requires. That would have required him to identify the standard for assessing distinctions drawn on the basis of sexual orientation (or, some would argue, gender) and then carefully balance the harm caused by the limitation of marriage to male-female unions and the reasons that a state might do so. You won’t find that in his opinion

Instead, Justice Kennedy emphasized the Constitution’s injunction against depriving persons of liberty without “due process of law.” The Court has, on rare occasions, read this provision to mean that there are certain things that the government can’t do even if does extend due process.  (If this strikes you as odd, it should.) Those cases have, from time to time, recognized a fundamental right to marry, even though the Constitution itself says nothing about marriage.

 This creation of such extra-textual “substantive due process” rights is quite controversial, but let’s put that aside. No previous cases involved anything other than the traditional view of marriage as a male-female union. Each one involving the right to marry made the challengers behavior a crime.  That was not the case here. There’s no getting around the fact that, for better or worse, same-sex marriage is a very dramatic change and the idea that our Constitution compels it ought to give one pause.

 If you were arguing for a change in marriage law in the legislature, you’d have an easier task. You could say that it is morally right to let gay couples marry. You could claim that it is good public policy to use marriage to facilitate same-sex relationships. But the Supreme Court has no authority to tell states that they cannot do something simply because a majority of its justices think they’re wrong and it just isn’t fair. That’s not judging. That’s legislating.

 The danger – the reason that you should care even if you support same-sex marriage – is that lawyers work by analogy. In Obergefell, Justice Kennedy says that there is some type of constitutional right to express and define one’s identity. Even if you are sympathetic to the idea of rights that are not themselves expressed in the Constitution, this approach is completely unbounded. It can be employed in support of just about any rights claim and if it was proper to use it in Obergefell, then it’s hard to see why it won’t be proper to use it again. If today’s “new understanding” is that the Constitution means that marriage laws must include same sex couples, tomorrow’s might mean that I have the right to polyamorous marriage or to pay my workers whatever they’ll agree to take or to avoid military service. The contours of the Constitution and the restrictions it might place on democratic decision-making will be limited only by the human imagination.

 In a scathing dissent, Justice Scalia wrote, that while it was not important to him what the law said about marriage, “[i]t  is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

 That should be important – and troubling - to all of us.

Cross posted at Purple Wisconsin.