Thursday, August 30, 2007

Who cares in what ways about Larry Craig?

One of the more thoughtful commentators on gay issues is Dale Carpenter, a lawprof at Minnesota. I think it is fair to say that Carpenter, who is gay, writes from a "liberal perspective" on these issues, i.e., he supports same-sex marriage, etc. He blogs at the Volokh Conspiracy.

On the Larry Craig matter, he does a good job of making what seems to be the irrefutable point that the charges brought against Craig are extremely problematic. How can placing your foot and hand under a restroom stall divider be disorderly conduct? Even if it is clear that this is a way of asking for sex, how can doing so in such a veiled way be criminal? If Craig were a supporter of expanded legal recognition for same-sex relationships or if he were openly gay, the fact that these charges were even brought would be seen, with some justification, as a civil rights issue.

But in this case, as Carpenter and others point out, Craig's problem is not whether he broke the law but whether he is, in fact, gay. If he is, then he is presumably subject to charges of hypocrisy. His sexual orientation is thought to be relevant because it is presumed to reflect on the sincerity of the positions he takes on same-sex matters. Thus the Idaho Statesman has apparently regarded Craig's sexual orientation as newsworthy while we know that other media outlets are perfectly willing to allow a politician's sexual orientation to remain an open secret - at least if there is not a perceived conflict between that orientation and the individual's voting record.

Carpenter draws a parallel between the Craig matter and the fact that there are a fair number of gay staffers who work for the GOP. He comments upon the fact that a number of GOP illuminati - even socially conservative ones - don't seem to hate gay people. He suggest that their positions on these issues stem from a need to mollify a religiously conservative base as, the argument goes, Craig's must also. Carpenter doesn't want to call this hypocrisy (although I suspect many people would), but a schizophrenic private acceptance and public rejection that, he argues, is extremely hard - even life-destroying - for gay Republicans.

I think he is right in the sense that it may make little sense for people who do not believe that their homosexuality is wrong or something to be resisted to act as if they are something they are not. But Carpenter seems to imply that reconciliation of this "schizophrenia" must involve a change in GOP policies (the party's "public philosophy" must be more closely aligned with its "private one.")

Is that right?

For example, I don't believe that homosexuality is intrinsically immoral or that "practicing" (for lack of a better word) gays and lesbians are sinners. But I oppose same-sex marriage and I believe that, while society ought to be tolerant, it is perfectly free to behave as if heterosexuality is normative.

Of course, I am not a religious conservative (I'm Episcopalian, for the Ultimate One's sake)and I have no base to mollify (with the possible exception of the Reddess who is a demanding constituency.)I suppose its also possible that GOP pols who take the more traditional view of the Abrahamic faiths about these matters are actually practicing the age old admonition to hate the sin but love the sinner. I even can imagine that pols who are gay nevertheless believe that this orientation is also a temptation that ought to be resisted in much the same way as one who is oriented toward alcoholism should try to refrain from drinking. That he or she might not always succeed in resisting that temptation does not change his or her view on the nature of the conduct. Whether that qualifies as "self-hating" or wrestling with the Devil is another matter.

As a matter of pure politics, the dynamic that Carpenter describes is probably real. My point is that the debate over same-sex matters does not necessarily turn on animus or even on the question of the ultimate morality of homosexuality. The choice is not between fundamentalist condemnation or a society that is gender-blind in matters of sexuality. One can hire gays, not dislike gays and even have gay friends without adopting a supposedly complementary set of policy preferences on same-sex marriage and related matters.

Notwithstanding Professor Carpenter's disavowal of the charge, all of this leads me to a point about hypocrisy. We don't like it and we shouldn't. But isn't there a tendency to believe that showing someone to be a hypocrite undercuts that person's defense of whatever standard he or she has failed to live up to? A politician's stance on gay issues must he wrong or at least insincere if he trolls for sex in a men's room. A Senator's feminism must be insincere if he uses female staffers as playthings.

But that doesn't follow. Doesn't hypocrisy tell us as much about human weakness as it does about the standards that we too often fail to meet?

Wednesday, August 29, 2007

"Complain about the present and blame it on the past/ I'd like to find your inner child and kick it's little ..."

In a recent post on the top opening lyrics in rock songs, I gave the top billing to Patti Smith's intro to a rework of the old rock anthem "Gloria." She declaims that "Jesus died for somebody's sins, but not mine." I noted that the lyric, while evocative and thought provoking, is theologically incorrect. One of the commenters posted as follows:

"And the top (although theologically incorrect) opening lyric:"

Perhaps Patti sings in the voice of Lucifer, the fallen angel, the most successful rebel of all time. Given your bigoted comment, my guess is that you'd view her as sinful, evil, condemned - but not "theologically incorrect."

Please post when you intentd to teach your law school class about "correct theology." Mullah Omar as guest speaker, no?

Others suggested that this guy ought to lighten up and I certainly agree, but doesn't this reflect a widely shared, if curious, assumption that a statement of belief, at least if it is not hedged with affirmations of relativism,should be regarded as offensive to those who don't share it?

I actually like Patti Smith, even though she can only be taken in small doses and her politics are a mess. I have no idea what, if any, religious beliefs that she has. (She did do a haunting recording intertwining "We, Three Kings" with the infancy narrative from Matthew.) She has apparently explained the line by stating that she did not want anyone to have to die for her sins and that is a very human - even Christian - sentiment. I recognize the pedigree of theories of substitutionary atonement but I struggle with that too. It's one of the reasons that I like the line, although mostly I think it's a neat expression of alienation with just a hint of mischief.

But, it turns out, that I believe that Jesus Christ did, in some way, die for her sins. Whether she believes that or not, I don't think that she is sinful, evil or condemned. She might - you might - believe that ny belief is wrong, but the fact that I believe something that you don't does not make me bigoted. It does not mean that I hate you or that I want to conduct a pogrom against you.

Today's poverty riff

I agree with the point of many of the folks quoted in the Journal Sentinel's recent article on the poverty rate in Milwaukee. We ought to be concerned that the city has the 8th highest poverty rate in the country. We should regard the fact that 1 in 4 city households are below the poverty line as unacceptable.

But isn't there an instructive point suggested by the accompanying graphic which suggests (but does not demonstrate)a high level of correlation between the overall income level of a state and its rate of poverty? Maybe a rising tide doesn't lift all boats but no one is going anywhere if everyone else is mired on the beach.

So much of the political debate surrounding Milwaukee centers around the need for the state and county to spend money to address the perceived needs of the less fortunate and, of course, there is often a need to do so.

But I suspect that Milwaukee County would be far better off if there was a way to get its median household income within shouting distance of its surrounding counties and the government is not about to spend us into that happy circumstance.

To return to the subject of an earlier post, killer property taxes and high crime rates are not conducive to attracting businesses or middle class families and the social capital that they bring. Expressing concern over these things is not abandoning the city; it's an attempt to get at some things that are holding it back. Accepting family breakdown and generation after generation of dependence as "givens" that must be tolerated and ameliorated may not be blaming the victim. But it is ensuring that she will remain one.

Sunday, August 26, 2007

Sunday diversion: Top opening rock lyrics

The Reddess, after hearing a discussion the radio, drew my attention to Spin Magazine's list of the top opening lyrics in rock songs. We tried our hands at lists of our own before looking at theirs. Hers is different from mine, but this is my top fifteen:

15. I see myself with a dirty face/I cut my luck with a dirty ace/I leave the light on

- Beth Hart, Leave the Light On

14. If you twist away/tear yourself in two again/if I could you know I would/let it go

- U2, Bad

13. I play in a band/we're the best in the land/we're big in both Chelsea and France

- Dropkick Murphys, Kiss Me I'm S***-faced

12. I met her in a club in old Soho/where you drink champagne and it tastes just like cherry cola

- The Kinks Lola

11. Hello/Is there anybody in there?

- Pink Floyd, Comfortably Numb

10. Well, I dreamed I saw the knights/In armor coming/Saying something about a queen/There were peasants singing and Drummers drumming/And the archer split the tree.

- Neil Young, After the Goldrush

9. Five to one, baby, one in five/no one here gets out alive

- The Doors, Five to One

8. Crimson flames tied to my ears/rolling high and mighty traps/Pounced with fire on flaming roads/using ideas as my maps

- Bob Dylan, My Back Pages

7. Everywhere/I hear the sound/of marching, charging feet/boy

- The Rolling Stones, Street Fighting Man

6. I've been a bad, bad girl

- Fiona Apple, Criminal

5. I do it again and again/listening for visions and missions in the wind

- Shannon McNally, Geronimo

4. There must be some way out of here/said the Joker to the thief
- Jimi Hendrix (pace Bob Dylan), All along the Watchtower

3. Never was a cornflake girl

- Tori Amos, Cornflake Girl

2. Every where is freaks and hairies/dykes and fairies/tell me where is sanity

- Ten Years After, I'd Love to Change the World

And the top (although theologically incorrect) opening lyric:

1. Jesus died for somebody's sins/but not mine

- Patti Smith, Gloria:In Excelcis Deo

Three of these are also on the Spin list.

Friday, August 24, 2007

You've got to know when to fold 'em

Michael Mathias uses the occasion of Joe Zilber's generous gift to Marquette Law School to make a point at what he sees as the perfidy of some conservatives' lack of commitment to the city. He cites a column by Patrick McIhleran (who actually lives in the city)that did not, as Michael suggests, argue for flight to the suburbs but undertook to explain why some people might leave the city. Michael writes that Zilber's gift "should shame the “crime first” crowd into reevaluating their own positions on how to renew Milwaukee’s prospects for the future. Obsessing over crime and blaming liberal social policies isn’t helping."

Now, when someone gives thirty million dollars to my employer, my only response is "thank you" and various riffs on the theme. Joe Zilber has certainly done something - and will apparently do a few other things - that should inspire and, if necessary, shame us. (Shame is vastly underrated nowadays.)

But I'd prefer not to politicize it. Concern over crime and liberal social policies certainly does help if you think that crime and those policies are part of the problem. The expression of such concern does not define whether or not you are, as Michael puts it, "all in."

Actually I think that the poker metaphor makes an interesting point; one that I intended to make in the conversation over Pete Kennedy's column in the Waukesha Freeman which, while exaggerated and a bit silly, illustrated (perhaps unintentionally) a point that should not be forgotten in the debate on urban policy.

When it comes to cities, most people are not and never will be "all in." They will play for a while, but there is a point at which they will fold and take their chips to the suburbs. You cannot expect them to place themselves and their families at risk. You cannot ask them to keep paying for programs that do not benefit them and with which they do not agree. They don't have to do it and they won't. If you persist, you will create Detroit. While Milwaukee is still a great city and is still the cultural and, to a lesser degree, economic engine for the metropolitan area, there is no law of man or nature that says this must always be.

I agree that there is much criticism of Milwaukee (and Kennedy's column may fall into the category) that is clueless and undertaken in bad faith. Patrick McIhleran, of all people, does not fall into that category. Mayor Norquist was known for saying (and Jim Rowen will correct me if I don't have it just right) that you can't build a city on pity. Keeping Milwaukee great and making it better is not solely - or even largely - a function of defining needs that can be paid for by others. It is not a function of deciding which dispossessed group needs to get what little spoils remain.

I agree that there are some areas where money is going to have to flow in to the city from outside the city. But, if you want to take money from the people in the ticky tacky houses, you are going to have to abandon the posture of superiority, turn off NPR and listen to their opinions.

I think that we are far from time to fold when it comes to Milwaukee. But it's a fool's game to think that people will put up with anything and pay for everything. Whether they should or not, they won't.

Thursday, August 23, 2007

Government health care or not?

Depending on the topic, the Senate Democrat's "Healthy Wisconsin" plan is either a revolutionary salvation of the state's health care system or something that essentially leaves our current system of private health insurance in place.

It becomes the latter when the question becomes whether the proposal can fairly be called "government health care." Local advocates of government health care, responding to a WMC poll which apparently shows that lots of people don't like that idea, have resolutely denied that this is what the HW plan is.

Are they right? Mostly not. It certainly is true that HW retains the services of private "insurers" who will presumably be eligible to participate in the plan if they offer coverage that meets the plan requisites for coverage and pricing. This certaily permits some room for competition on, say, lowering administrative costs and, perhaps, offering supplementary coverages.

If the idea behind HW was to offer a basic bare bones plan, that might leave much of the price and scope of coverage to the market. But that's not the idea at all. HW is supposed to provide comprehensive coverage equal to the "Cadillac" provided to state employees (but apparently not to the Rolls provided to teachers who are to remain outside the plan).

That being the case, it seems likely that, if it serves its stated purpose, HW will tend to replace private coverage (although it may interact with federal law in a way that makes this less likely). The tax imposed on employers and employees is high - it has to be to offer that much coverage - and it seems likely that HW will basically be what you get.

In the make-believe world dreamed of by consultants, that will be just fine. HW will provide more coveragte to more people for less money. We will all be strong, good-looking and above average.

In the real world, it seems likely that HW will be unable to deliver what it promises without tax increases or benefit reductions. Proponents respond that this is no differenct than the current system where there are choices made between cost and coverage are made all the time.

Here is where we arrive at a fundamental difference between the plan's opponents and proponents. Seth Zlotocha regards rationing under the current system as sort of irrational and happenstance ("either your employer offers good coverage or it doesn't").

That's not quite right. Your employer does not offer good coverage or not based upon her astrological chart or whether she is a naughty or nice. She provides it if she needs to do so in order to attract the type of workers that she needs and can afford.
The market does not work as well as it might here because of the remove between the consumer and the payer, but there at least some notion of trying to give employees what they demand.

HW advocates say that this will happen under their plan too. People will demand what they want through the political process.

This assumes, of course, that these choices ought to be collectivized. Everyone (and it will be mostly everyone under HW) should get more or less the same thing with a majority choosing what that will be.

This has, I suppose, the advantage of being egalitarian and, if this is your highest value, it may be a good idea.

But is that the only value that a health care system needs to serve? Are we concerned that a state run system will, like those elsewhere, tend to choose low cost, low innovation, low service systems? Are we concerned that, while market results may be heavily influenced by the distribution of wealth, political rationing is influenced by rent seekers with intense special interest?

We generally don't think that the allocation of goods and services by government fiat produces the best result. I agree that there are reasons for departing from a pure market mechanism for health care, but, for the most part, it seems to me that the market ought to be the rule rather than the exception.

This point is underscored by the Wisconsin Policy Research Institute. It points out that only 5% of Wisconsin residents lack insurance and that the quality of care here, while expensive, is very high. Does that really suggest a need for a revolution

Wednesday, August 22, 2007

Doyle brings forth a mouse

I noted yesterday morning that the Governor was going to come to Milwaukee and announce an anti-crime initiative. That would be a great thing to do. While most of Milwaukee is relatively safe, there are neighborhoods where people are under siege and desperately need some relief.

It never did happen. Oh, the Governor apparently did come to Milwaukee and posed. But then he just announced some gun control initiatives. I don't have a particular problem with any of them but does anyone really believe that all of them will have any discernable impact in crime in Milwaukee? Based on its coverage (where?), not even the Journal Sentinel thought much of the package.

Doyle wants Milwaukee to be able to declare itself a gun-free zone, reminding me of the '80s when the School Sisters of St. Francis declared their property in Bay View a "nuclear free" zone. That certainly brought peace in our time.

He wants to require background checks at gun shows and, at the risk of incurring the ire of Dad29, I can support that. But will that materially reduce the circulation of guns in MIlwaukee, When people want to sell and others want to buy, history tells us that the law will have a hell of a time stopping it. It's worth doing, but, in the mean time, Governor, what should we do to keep people safe?

Tuesday, August 21, 2007

Great news on Tory Hill

Joe Zilber, a longtime developer and graduate of Marquette Law School's class of 1941, announced today that he will be making a $ 50 million dollar gift to charities within the city, $ 30 million of which will go to Marquette Law School. Most will be used for scholarships and some for the school's new building, in particular for a commons area within the building. It's a very generous gift and, for him, a wonderful legacy to be able to leave.

The school's new building is, of course, important, but I am particularly taken by the impact that $ 25 million in scholarship money can have for law students. Legal education is expensive and, while some lawyers make a great deal of money, there are equally critical career paths in the law that are not very renumerative. A gift that can not only provide access to law school, but free graduates to follow their hearts is a wonderful thing to do.

And it'll be fascinating to see what he chooses to do with the remainder of his gift.

Monday, August 20, 2007

Live in the now, man

Last week, Roger Clegg of the Center for Economic Opportunity spoke to the Milwaukee Lawyers' Chapter of the Federalist Society. Roger is a long time critic of racial preferences (and blogs at NRO Online, although his talk on Thursday was on immigration and assimilation. (He is for both.)I had the pleasure of having breakfast with Roger with a few other lawyers. He's a charming and engaging fellow.

One of my questions for him was whether we can ever expect meaningful dialogue on race as long as the conversation is dominated by baby boomers? Maybe we - or at least our older brothers and sisters - need to shuffle off to the Early Bird before we can make any more headway on this issue.

More evidence for this over the weekend in the discussion of the Governor's Commission on racial disparities in the criminal justice system. Responding to my reflection on his critique of John McAdams, Bill Christofferson says that the reasons for the higher incarceration rate of blacks - whether racism or some "systemic problem" - really doesn't matter. Whatever the cause, the disparity is "unacceptable." We have to bring those numbers in line.

That's a boomer notion. We grew up - not without good reason - to believe that discrimination of the majority against "the other" was the dominant evil. But what if the higher incarceration rate of blacks really reflects - at least to a substantial degree - real differences in rates of crime? Even if those differences are the result of poverty or a legacy of discrimination, focusing on the incarceration rate and not the crimes has a price that must be paid by the criminals' victims who, in this case, are also overwhelmingly black.

Eugene Kane's column in yesterday's paper tries to wave the issue away. To suggest that the difference in incarceration rates reflects something other than racial mistreatment is racism:

When black people make up only 6% of the Wisconsin population but 45% of the prison population, the only people who actually believe African-Americans are the only ones using illegal drugs, stealing property, driving drunk or committing violent crimes must be convinced black folks are truly a demon spawn.

But if you reject the racist position that blacks are more criminally inclined than other people, the numbers do suggest the criminal justice system somehow finds it much easier to send black guys to prison, which is essentially what many speakers at a series of community forums have told the commission members all over the state.

That's a boomer argument. It's a shut up line. It still works although it also breeds animosity and distrust. McAdams and others are not saying that African-Americans are the "only ones" committing crimes, only that there are differences in rates of criminality between racial groups. (The most law abiding racial group, incidentally, is not whites; it's asians.)They are not saying that blacks are more "inclined" to commit crimes. My own belief is that blacks are more likely to be raised and live in circumstances that correlate with criminality.

But, again, if you rule out the possibility that something other than discrimination is the culprit, you won't solve the problem and the price of your ride on the moral high horse will be paid by people who "look like" (I hate that phrase) Eugene Kane.

Kane, as he sometimes does, actually winds up closer to the truth when he suggests talking to inmates at the state's prisons. He suggests that they won't make excuses for themselves. They have paid a price too, but just why they have paid it remains the critical question and I still have no confidence that the Governor's commission will make much progress on that.

Sunday, August 19, 2007

What was going on in the LaCrosse case

Michael J. Mathias has commented on my participation in the now dismissed case called In re M.R.N. in which I and a LaCrosse attorney represented Wisconsin Right to Life. He thinks we're wrong and One Wisconsin's Cory Liebman, commenting in Michael's post, thinks we're zealots. I don't think Mike understands what the case was about, so I'll try to explain.

The case involved an attempt to withdraw food and water from a woman who was placed under sedation because, according to newspaper reports, she suffered from violent dementia. He wonders how WRL could have known what she really would have wanted.

Of course, we couldn't. That's not what the case was about. No one could know what she would have wanted. M.R.N. left no advance directive and the guardian and her family were apparently not contending that they could prove what she wanted.

Under such circumstances, Wisconsin law is quite clear. In 1997, a unanimous state Supreme Court (which consisted of such Republican religious zealots as Chief Justice Shirley Abrahamson)held that, in the absence of a sufficiently clear expression of preference by the ward, a guardian may not withdraw food and water unless the ward is in a persistent vegetative state.

Everyone agreed that M.R.N. was not in a persistent vegetative state. So, under the law as it exists today, she could not be starved or dehydrated. If that is an right wing extremist position, then a unanimous Supreme Court, the Roman Catholic Church, etc. are all right wing extremists.

What the case was about was an attempt by the guardian and Milwaukee lawyer Robin Shapiro to set up a test case in order to try and change the law.

While I don't think there's anything nefarious about that (I have done it and will undoubtedly do it again), WRL does not believe that the law should be changed. Among other things, it does not believe that third parties should decide to kill people who have not clearly expressed a preference to be killed. There are medical and ethical and policy reasons supporting that position and we wanted to place those before the court.

Late Friday afternoon, the guardian apparently decided that M.R.N.'s condition was not sufficiently dire to serve as a proper test case, so they dismissed their request to withraw her food and water without prejudice (i.e., they reserved the right to renew the request in the future)

A side issue in the case was whether an order to kill someone could be issued in a closed proceeding. The guardian wanted a closed record and hearing. Even if you believe in euthanasia of some stripe, it ought to bother you to think that it can be done in secret.

Friday, August 17, 2007


Ah, but it is IrishFest. The Shark (son of a McDonald) and the Reddess (nee Cooley) will be there. We ought to join all the other micks in protest against the awful discrimination against redheads in the UK. Darn limeys! Like most Episcopalians, I am a bit of an anglophile, but my wife is a ginger and my son has strawberry hair. They couldn't get a tan on Mercury. With me, it is becoming increasingly difficult to tell.

A walk around the left side of the blogosphere

1. Michael J, Mathias is upset because WMC opposes a bill that would mandate coverage for autism, Asperger's Syndrome, and some similar disorders. His argument is, essentially, that these diseases are bad and treatment of them is good. Those who oppose ordering employers to cover it must be miserly and mean. Of course, WMC is not arguing that such coverage cannot be provided should employers and employees desire it, only that they shouldn't have that decision made for them by the government. For better or worse, insurance plans tend not to cover things that affect relatively few people and require extremely expensive treatment of uncertain effectiveness. (Exhibit A is drug and alcohol treatment although that seems to be more a function of the latter two factors and a judgment about the culpability of the patient.) Money is not in endless supply and decisions have to be made about what risks we are willing to pay to share. Employees don't demand coverage for these conditions and, therefore, are unlikely to get it.

Maybe they should. Maybe relatively rare tragedies like this are something we all should pay for. But the list of such is endless and it is unclear that government is in some uniquely good position to pick and choose among them, particularly when it does so by mandating that someone else pay the bill. That's cheap compassion.

2. Jay Bullock is disappointed that Republicans didn't show up at a Democrat hootenanny at Serb Hall. They all wanted to reason together. Really.

In response to Jay's question about the Assembly budget's impact on Milwaukee County, I am not prepared to defend everything in it, but two observations may help. The rest of the state does not exist to send money down south and Milwaukee County - and its wellbeing - is not solely, or even principally, defined by its need for government largesse.

3. Bill Christofferson thinks John McAdams forgot his evidence in his critique of the Governor's commission on racial disparities in the criminal justice system. John didn't have time to send Bill everything he was referring to because he is on vacation, although the stuff that he did send is fairly powerful support for his critique.

Bill does raise a worthy point in arguing that maybe John's evidence doesn't fully explain black-white incarceration differences because of the impact of more stringent enforcement of drug laws. There probably is more aggressive enforcement of drug laws in the black community but its not because, as Bill suggests, that there has been some decision to wage the drug war against African-Americans, Drugs tend to have a more debilitating impact in poor communities and drug offenders are less able to stitch together the treatment and social support network that would warrant more lenient treatment or, more significantly, keep them from the repeat offenses that will eventually get them locked up. While I am skeptical that the government knows how to - or even can - close that gap, it is not so much a matter of race as of economic and cultural(say social if you prefer)factors.

Paul Soglin promotes the left's "50 things you won't hear on talk radio" in response to Charlie Sykes' new book, 50 Rules Kids Won't Learn in School. Paul thinks Charlie's rules "will make you either groan or say “Duh!”

I have not yet read all of Charlie's rules (although I am apparently cited in support of Rule 21; I hope it's a good one) so I can't comment on whether the 50 rules will do either. I can say that the left list does both. I paticularily like the recital of the Beatitudes. But they forget the one that says "Blessed is he who takes from his neighbor to give to another and counts it as self righteousness."

That's not fair, you say. Precisely.

Thursday, August 16, 2007

More on health care

There were two interesting pieces in the Wall Street Journal editorial page yesterday relative to the issues posed by health care reform. The first has to do with the "cost savings" that are always claimed for single payer or otherwise highly centralized plans. I have marvelled at the earnest faith with which people state that a plan like Healthy Wisconsin will save billions of dollars while covering more people and paying for more treatments. They sound as if they are reciting a law of physics.

A column by Merrill Matthews points out that, at least with respect to the total cost, there is a circularity about this. Countries like Canada and England spend less than we do for health care because the government has decided that it is all that is going to be spent. The demand for health care is determined, not by those who would receive it, but by those who will pay for it.

Substituting political demand for consumer demand is a critical issue with respect to government provided health care. It may be that Healthy Wisconsin will limit health care spending to 15% of state GDP. But it would be pure happenstance if it turns out that this is the optimum level of health care. I'd rather see that determined from the bottom up than from the top down.

The idea that expensive things can be paid for through administrative savings may not be precisely the equivalent of faith healing, but its close.

The editorial board of the Journal also criticizes Gov. Schwarzeneggger's proposed plan for California in that it requires people to buy insurance. This, they say, is a violation of free market principles and so it is.

The problem is that in most areas in which the market operates we are willing to allow people to fail. If you borrowed more than you can repay, you lose your house.

It's less clear that we are willing to let someone die because they did not buy insurance. Because we won't do that, it may be necessary to compel people to invest in their health to avoid the need for the taxpayer to do so.

Wednesday, August 15, 2007

Give me my money

Don Imus is being sued for defamation by a member of the Rutgers basketball team that he described as "some nappy headed hos." Kia Vaughn will apparently argue that this is slander per se and that she need not prove damages.

I think she may have problems proving that Imus made a statement of fact in a way that is recognized by the law of defamation. Imus will argue that his statement was hyperbole that no reasonable person would take as an actual claim about Ms. Vaughn. I suspect that she will respond by claiming that he was playing on stereotypes that people buy into, etc.

Maybe I should wish her luck. An anonymous comment in response to one of my recent posts called me a "Republican whore." It wounded deeply. Where might I go for closure? Who will give me my reputation back?

Tuesday, August 14, 2007

Keep one more disparity in mind

John McAdams attended Monday's hearing of the Governor's commission on racial disparities in the criminal justice system. The importance of the subject cannot be overstated. It is critical that the system be fair and also, I think, extremely important that it be perceived to be fair.

I am not optimistic about the commission which seems to lack political diversity. On something like this, a governor ought not to prefer members of his own party and people who share his ideological proclivities. In a truly bizarro world in which I were Governor, I'd go out of my way to appoint some flaming lefties. I can't say that I know the politics of everyone on the commission (and there are certainly intelligent and accomplished folks on it), but I recognize no strong conservative voices. I hope I am wrong.

Last week on WMCS, I heard the commission's executive director, Lindsay Draper, basically say that there is no one on the commission who does not think that racism is a serious problem in the criminal justice system. Depending on what you mean by that, this is a problematic statement. It seems unlikely that there is not some racism in the system and it would be impossible for racial issues, broadly defined, not to have a lot to do with what goes on in the system, but it is not obvious that racial discrimination within the system is a primary determinant of its outcomes. At least that ought to be an open question.

My concern is underscored by John's report that the commission's chair, Spencer Coggs, does not believe that "blacks commit crimes at a greater rate than whites" but are only "stopped more."

It's an uncomfortable thing to say because we know how it can be misused, but it's hard to deny that offenders are a higher percentage of the black population than they are of the white population. I actually believe that some of what you hear from liberals as explanations for that are true, if not as relevant to the best solutions as they would argue. Poverty plays a role. The legacy of racial discrimination plays a role. I think that family disarray and culture are huge factors and that, while these things aren't the simple result of poverty and racism, they are certainly related to poverty and racism.

But whatever the reasons for them, the facts are the facts. If you deny them, you will mischaracterize the system and focus on the wrong solutions. One of the tragedies of that would be that the one huge racial disparity that we ought to focus on is the disparity in victimization. It may be that some greater percentage of blacks are offenders, but blacks are far more likely to be the ones offended against. The implications of that for bettering the lot of poor black families are staggering.

I hope that is a disparity that the governor's commission does not forget.

Monday, August 13, 2007

Random thoughts on TPG Capital's offer for Midwest.

1. AirTran had argued that they would actually increase service to Milwaukee by making it a second hub. Northwest must have believed it.

2. Just how involved TPG is in AirTran is the critical question. AirTran probably would not have approved Midwest as we have known it. But this seems just as unlikely to do so. It is hard to imagine that control of the company by a shareholder group which is presumably dominated by NWA would do that. I would expect a move to "rationalize" routes by reducing "duplication" of routes offered by ... NWA.

3. I am not an antitrust expert. But, if I recall correctly, the combined market share in Milwaukee is very close to - if it does not exceed - the guidelines for problematic Hart-Scott-Rodino filings. The apparent move to forestall a competitive hub makes it even more vulnerable. AirTran cannot challenge the combination, but it seems likely to get heavy scrutiny from DOJ.

4. Sometimes large concentrations are OK if there are not significant barriers to new competitors entering the market. This can get to be a fairly complicated analysis. One problem for new competitors, I would think, is that the number of gates in any given market is finite. You can't come in and compete unless you get access to a gate.

5. But maybe the deal can survive such scrutiny if NWA is not a major investor or is otherwise effectively insulated from management decisions.

6. AirTran's statement that Midwest has frustrated the wishes of shareholders seems like sour grapes. The desire of shareholders is presumably for another quarter per share and for cash not AirTran stock. They got outbid.

7. Private equity groups do have a reputation for running up the numbers and then selling after a few years, although if NWA is in it to keep a competitor out, it would make no sense to do that.

Friday, August 10, 2007

The Shark and the Shepherd on health care

There is an article in the Isthmus about a Madison woman, formerly a health insurance salesperson for Humana, who appears in Michael Moore's film Sicko. The horror she illustrates is the reluctance of insurance companies to write policies for people who are sick or likely to become sick. She expresses her shock and disgust that the company wouldn't cover pregnant women. She is outraged at the notion that it wouldn't insure people who wait until they need to make a claim to seek coverage.

My first reaction to the story is to note the willful cluelessness of it all. The woman's sly reference to the "profit end" of the insurance business reminds me of Steve Martin in The Jerk who thinks he's uncovered some dark bit of genius in the idea that you would charge more than whatever you are selling costs. ("Ah, it's a profit deal.")Why would you expect an insurance company to cover people whose claims are almost certainly going to exceed their premiums. Insurance is risk sharing. If you don't get sick, your premium dollars cover someone else's care. In order for there to be money to cover people with larger claims, there must be people who pay premiums and do not have those claims. Whether the company is "for profit" or not may change the numbers, but not the fact.

This doesn't work well when the people seeking insurance have ready-to-make claims or are very likely to have claims in excess of their premiums. In declining to insure these people, Humana is not evil or greedy. If you can't understand that, I've got a proposition. I'll pay you $100/month for the next year and you give me $ 5000 at Christmas.

My second reaction is to observe that this fact, however understandable, is a problem for a market-oriented reform of the system. While we may be willing to allow people who are accident prone to go without auto or homeowners insurance and to bear the loss of their next fire or fender bender, we are not willing to allow people to go without some type of health care.

So, I have often thought, a market solution to health care would have to impose some rules. A libertarian solution won't work. One might be to forbid individual underwriting on basic high deductible policies.

But, if you are going to do that and you don't want health insurance to be a device by which people with medical problems pool their bills, you'd have to require people to be insured - probably by imposing an "uninsured" tax on those who don't buy this basic policy. Insurer competition would be on the basis of administrative efficiency and cost controls, not on trying to pick a "healthier" book of business.

Thursday, August 09, 2007

The beast eats well

Community columnist Steve Paske thinks taxes are not so bad. Of course, some level of taxation is necessary. But his suggestion that high marginal rates of the past had no impact on economic activity because there were times in the past when the economy is good begs for comment.

Steve's suggestion is that there was a time when we were more heavily taxed, but that's really not true. While top marginal rates were much higher before the Reagan-era tax cuts, they were readily avoided. The tax code was much more complex and had many more exemptions and deductions back then. Thus, as this chart shows, even though marginal rates were much higher in the 60s and 70s, income tax collections were not.

He suggests that someone will not choose to skip medical school because the highest marginal tax rate is 50%, rather than 39%. That's probably so but it misses the point about the impact of high marginal rates on economic activity. That difference may have an impact on how much a doctor works. It may have an impact on whether or not his wife goes to work. Marginal tax rates have an impact at the margin. The fact that lowering marginal rates are often followed by higher revenues demonstrates that.

Of course, this doesn't mean that there cannot be a counterproductive tax reduction. But, all things equal, high rates will tend to reduce the incentive to work and invest. Personally, high marginal rates are about to become less of a problem for me than they have benn in the past, but I have had occasion to work with business people who make and invest lots of money. You may wish they did not have tax rates in mind when they make decisions about what to do with their lives and money, but they do.

Steve suggests that we have "falling bridges" (watch out!) and failing schools because we don't pay enough in taxes. At least he didn't trot out Grover Norquist's desire to "starve the beast", i.e., shrink the size of government by denying it revenues.

News flash: Grover Norquist lost that battle. The size of government has not shrunk. It may not have grown as much as some wanted and the uses of the money it receives may have changed, but if it can no longer keep bridges standing or educate kids, the problem is not the lack of revenue.

Millennial posting

This is it. One Large. A K of commentary. A bag of bloviation. A grand of analysis. A G of critique. My first box of ziti. A dime of dema .... Forget that one. It's post no. 1000 on Shark and Shepherd.

Magical thinking on health care

Christian Schneider writes two of the best paragraphs on "Healthy Wisconsin" that I have read. Commenting on the idea that the Democrats think that they can buy more health care for 15 billion than insurance companies and private administrators buy for 18 billion, he writes:

This brings up an interesting contradiction within the Democratic ranks in the State Legislature. Think about the University of Wisconsin System and the nearly $1 billion the state provides to the system annually. Now imagine the state cutting $300 million from the UW System and freezing tuition, while doubling the number of students the state’s campuses had to accept. Is there any Democrat in the Legislature that wouldn’t say the quality of education those students receive would be drastically harmed by such a scenario?

Yet this is similar to what the Healthy Wisconsin plan proposes doing. Democrats are proposing pulling $3.3 billion in “savings” out of the health care system, while drastically increasing the scope of individuals and procedures covered. And this isn’t supposed to affect our quality of health care?

Isn't this just magical thinking? The justification for this is that government is an 800 pound gorilla that can negotiate down prices in a way that insurance companies and private admonostrators (each of whom presumably controls something the providers want, i.e., patients) cannot.

There is a sense in which this may be true. If HW crowds out private insurance (something that I am not at all certain will happen), then we'll spend 15 billion on health care because that's all we'll spend on health care. The notion that providers will simply provide more for less seems fantastical.

What seems likely to happen is a diminution in care (the government and providers needn't be concerned that consumers will go to another plan)and, as Christian points out, gradual expansion of the patient's costs. Obviously this will still be better for those that are not currently insured but it seems unlikely to be for those who are. This is, as I think, the problem with single payer schemes. They take a system that works for most people and blow it up to address the fact that it works less well for 10-12% of us. You'd think it would make more sense to go at it from the other end.

Wednesday, August 08, 2007

Neat story

I really admire people who decide to pursue a new passion at a time in life when lots of folks decide to coast. One of my favorite over the past year or so has been Chris Wolfe's plan to start a new Catholic university. Having spent some time talking with him about his plan, it seems serious, possible and exciting.

I was making fun of you

Some guy named Roger Bybee at the Fighting Ed blog proves once again that satire is impossible.

Tuesday, August 07, 2007

Why more medicaid births?

How many questionable assertions of fact can you cram into one news article? Let's count the affirmations of faith in this one about the large percentage of births in Wisconsin paid for by Medicaid. The percentage of total births covered by Medicaid rose to 44% in 2005.

The state Department of Health and Family Services attributes the rise to an economic downturn that led to an increase in women of childbearing age whose incomes qualified them for state health care programs. There was no economic downturn in 2005. In fact, the accompanying chart seems to show that the increase accompanied the recession following the dotcom collapse, but continued right through the more recent robust economy.

"It's understandable, since families are struggling more and more to meet basic needs, so they become eligible for those programs," said Charity Eleson, the council's executive director. But the poverty rate rose slightly from 2000 to 2004 and not at all between 2004 and 2005. Yet births covered by Medicaid have increased at a stunning rate. The relative increase in Wisconsin from 2000 to 2004 seems to have been more significant than nationally so that may explain some of what we see. Still, it seems unlikely that some generic group called "families" have "struggled more and more" in the past few years.

Eleson said that people with lower levels of education are slower to benefit from an economic resurgence. This is closer to reality. But even if that's the case, it wouldn't an explain an increase in the number of Medicaid births.

"If those women who are low income and engaging in sexual behavior and don't have access to these facilities, we absolutely think there's going to be more unintended pregnancies," (Christine) Taylor (public policy director for Planned Parenthood of Wisconsin) said. This statement is apparently a commend on proposed changes in the way in which family planning activities are going to be funded. It's not clear to me how these changes (taking money from groups like Planned Parenthood and giving it to counties) is supposed to hide birth control. I can hardly go into a men's room these days without having "access" to contraceptives. I understand that access requires putting a few coins into the machine, but even poor folks manage to have access to all sorts of things that cost something. And I rather doubt that we lack for free birth control. More fundamentally, it's got nothing to do with the rise in medicaid births because the changes are proposed. They haven't happened.

If teen pregnancy rates are going down and the economy is improving and eligibility requirements haven't changed and there is "access" to birth control, what's going on here?

I am not suggesting that Medicaid should not be available to pay for these births. If children are about to be born, they and their mothers need to be taken care of. Nor am I big on prohibiting distribution of birth control. That cow seems to have taken leave of that particular barn. But these numbers raise all sorts of questions that no one interviewed for the article seems willing to ask.

Monday, August 06, 2007

Obama: Let them eat California roll

Barak Obama asks a crowd in Iowa if they have noticed the price of arugula at Whole Foods? Problem No. 1: There is no Whole Foods store in all of Iowa. Problem No. 2: I suspect that when most folks in Iowa go to the grocery store, they just buy lettuce.

This disconnect reminds me of Governor Michael Dukakis who famously told Iowa farmers to grow Belgian endive. That lead to this spoof on SNL. The skit was a Democratic debate moderated by Pat Schroeder (played by Nora Dunn). Dukakis, you may recall, was played brilliantly by Jon Lovitz:

Pat Schroeder: Well.. [ starts to cry, but then breaks out into hysterical laughter ] Okay! Alright.. Now.. Governor Dukakis, your critics are doubting your ability to translate the Massachusetts Miracle to the rest of the nation. When you first came to Iowa, you suggested that the farmers try growing a different crop.. and you cited as your example, Belgian endive. Do you still feel that Belgian endive still is the answer to Iowa's economy?

Michael Dukakis: Pat, each of us here tonight is asking for America's leadership and trust, allowing us to lead the country. And I don't think you can lead without a vision.. and I have a vision for America. I see purple mountains of raddichio; I see verdant valleys of arugula; I see escarole from sea to shining.. [ timer sounds ] ..sea. I know I'm running out of time, so let me conclude that with direction, purpose, a little oil and vinegar, and maybe some feta cheese, there is nothing we cannot do. Thank you.

Still more questions about single payer in a single state

As I have blogged before, there seems to be no end to the problems associated with the Democrat's "Healthy Wisconsin" scheme for a single payer health plan. Some of them have to do with the difficulties of enacting such a plan in a single state. One such difficulty is the potentially significant adverse impact on the national competitiveness of Wisconsin businesses.

Another has to do with ERISA compliance and the possibility that HW would be preempted by that federal statute (which governs, among other things, employer-provided health care.) Courts have found that state laws are pre-empted by ERISA if they "relate to" such a plan, For example, when the state of Maryland attempted to require Wal-Mart to spend at least 8% of its in-state revenue on employee health care, a federal court struck down the law as pre-empted by ERISA.

Over the weekend, I got a look at a memo from the Wisconsin Legislative Council, prepared at the request of Rep. Leah Vukmir, discussing potential ERISA preemption. The memo raises the question but does not really attempt the analysis that might be required to answer it.

I don't know what that answer would be. It does seem to me that, unless multi-state employers could exclude Wisconsin employees from their national plans, pre-emption seems likely. ERISA does permit employers to operate separate plans but there are all sorts of restrictions on when you may do so.

One of the problems, it seems to me, may be the potential need for employers to supplement HW to provide benefits equivalent to their national plans. Supporters of HW assert that it will provide the "same good benefits" that state employees receive, but that's not obvious. The HW board will be empowered to modify those benefits to, among other things, hold down the cost of health care.

Given that the payroll tax is capped (and there will be political pressure not to raise the cap), the prospect that benefits will have to be reduced to contain costs seems like a real possibility. That possibility is made more likely, it seems to me, by the requirement that the plan provide coverage for mental health services and drug and alcohol treatment to the same extent as it provide coverage for physical conditions. (Does the state provide that for its employees? I doubt it.)However desireable such coverage might be, it will be very expensive.

Even if a need to supplement doesn't result in ERISA preemption, it may will raise the cost of employing people in Wisconsin for those employers who pay less than 12% of payroll for health care. Because other states will not impose the same tax, those jobs can go elsewhere.

Supporters of the plan will argue that other employers - those who currently pay more than 12% of payroll - may be attracted o Wisconsin and so they might. Some businesses may win under HW. But I am not sanguine about distorting the market and hoping we come out ahead, Winners, moreover, would seem to be those employers who provide health care for relatively lower paid employees, Losers are those that do not provide health care or who employ a higher paid work force. I see no reason to believe that the net outcome will be positive.

Saturday, August 04, 2007

It must have been a Republican bridge

Wednesday night at the Brewers game, our sister-in-law got a call on her cell phone. A bridge collapsed in the Twin Cities. The guy in front of us turned around and showed us a picture of the thing on his cell phone. After the initial shock, I turned to the Reddess with three words: "It's Bush's fault."

It has to be because there is no tragedy that we can't politicize. For years and years, experts tell us that New Orleans is built in a singularly poor location and, if the right hurricane hits, it will be devastated. Nevertheless, for all those years, local politicians prefer pork to protection. Finally, the storm hits. The death toll is high, but a fraction of what had been predicted. Notwithstanding astonishing inactivity in the face of danger by the leadership on the scene (Nagin and Blanco), Katrina is Bush's fault.

I have no doubt that politicians may have ignored road maintenance (although anyone who drives in the summer in Wisconsin might be skeptical about that). It doesn't buy votes and deferred maintenance is close to a universal human characteristic.

I am also fairly certain that, whatever the extent of neglect of our national infrastructure, it extends past the Iraq War, the Bush administration, even the GOP takeover of Congress. I seem to recall the Democrats, over the years, calling for spending money on all manner of things and, while I am sure that roads were in there somewhere (what wasn't in there?), I cannot remember Clinton, Gore or Kerry emphasizing the Moral Equivalence of War against our sagging bridges.

And, whether or not it was in there somewhere, I haven't noticed any discernible reduction in our spending for highways. In fact, construction crews were on that bride when it collapsed.

The problem with the I-35 bridge is that inspectors did not detect its imminent collapse. Maybe they erred. Maybe, as seems more likely, the principles of bridge inspection are not infallible and that, sometimes, very unlikely and very bad things happen.

It would, however, be nice if we could at least recover and bury the dead and have a clue about what actually happened before we roll out the partisan guns.

But since we just can't wait, the kneejerk "Republicans won't spend money" argument that we are starting to hear has nothing to do with the problem. Congress has been more than willing to spend money on infrastructure. As this morning's Wall Street Journal notes:

The hair-trigger political impulse, from states and Capitol Hill alike, is that this means the feds need to spend more money. But it's hardly the case that taxpayers have been stingy. In 1991, the five-year highway cost $151 billion. By 1998 it was up to $217 billion, and in 2005 a Republican Congress agreed to spend $286 billion and would have spent far more had President Bush not threatened a veto.

But, of course, both Republicans and Democrats preferred that the money be spent on new projects because that is what gets you in the paper back home. As the Journal notes, earmarks for pork projects were pervasive in the highway bills passed by the Democrat congresses as I am sure they were when the GOP had the majority.

I might point out that this is a corollary of the New Deal philosophy of, as FDR Harry Hopkins reportedly put it, "tax and spend, elect and elect." But that I suspect the sentiment, just like the tendency to avoid things that aren't vote-getters, is as old as democracy.

Friday, August 03, 2007

"he simply wanted to go out and do something he enjoyed"

This guy was apparently ex-Milwaukee police officer John Bartlett's hero and there are rumors that other officers shared his enthusiasm. While I suppose that this type of fascination with a comic book hero could be harmless, in Bartlett's case it was just another reflection of what a sick puppy he is.

Bartlett is history and the more important question is the collective response to this creep and his merry band. Governments are notoriously unable to do two things at the same time. In a community that is plagued by criminal violence, tough, no-nonsense and thorough policing is imperative.

But its not possible to have that type of policing when it is placed into the hands of emotional retards who are still stuck somewhere in the vicinity of eight years old (and a nasty little 8, at that). Do that and aggressive law enforcement threatens to devolve into war against the community.

A fairly typical response to this type of thing is to adopt a set of policies that severely restricts police activities and to select leaders based upon considerations of sensitivity at the expense of seeking effectiveness in fighting crime.

That would be a mistake. The Punishers, if they exist or ever did, are a huge problem. Street thugs are a bigger one.

But you can't go after the latter without getting rid of the former. This is one of those times where we're going to have to walk and chew gum at the same time.

Wednesday, August 01, 2007

That long hot summer - and this one

This morning's editorial in the Milwaukee Journal Sentinel capping the paper's interesting retrospective on the 1967 riots in Milwaukee leaves something to be desired. As the paper notes, there are many ways in which the residents of those parts of the city in which the disturbances took place are worse off than they were 40 years ago. The paper has not much more to say about that then it's a bad thing and there is "much to do."

Given that the editorial board is more than prepared to declare the Iraq war a lost cause and to oppose more of the same in Baghdad, it's inability to see failure here is astounding.

We have fought a war on poverty using all the tools that "progressive" opinion thought would work. We have spent untold billions and billions on schools, job training, welfare and community development. We have created an affirmative action industry and tried to racially balance the schools. We have fought a war on poverty.

Poverty won.

Just as in Iraq, the war is too important to surrender. Just as in Iraq, however, we ought to recognize that more of the same is highly unlikely to be successful.

Putting no new ideas on offer, the editorial board visits both of its blind spots on inner city poverty - one intentionally and the other inadvertently - in the same paragraph. Comparing the open housing marches led by Father James Groppi to the riots, it writes:

The two forms of protest, organized and disorganized, led to more opportunities for African-Americans. They became lawyers, doctors, bankers, engineers, police officers, journalists, professors, elected officials and social workers in numbers not seen before. But the plight of other African-Americans worsened, in large part because of the downturn in manufacturing.

The loss of manufacturing jobs has been a fairly automatic mantra for the paper, but it places too much emphasis on something that cannot be changed. Inner city residents were not the only folks employed in manufacturing (indeed, I suspect that there was as much discrimination in manufacturing employment as elsewhere) and the shift from a manufacturing to a service economy has not proved to be insurmountable for other groups affected by it. (In fact, I wonder whether, if one tracked black families that were headed by someone employed in a well paid manufacturing job in 1967, it has proved insurmountable for them either.)In any event, those jobs will not return.

But the paragraph also illustrates something that the paper consistently refuses to see. One might see the "two forms of protest" not as complementary but as contrasting. One might see them as emblematic of two forms of response to our racial past - one emphasizing cultural assimilation and the other emphasizing cultural opposition.

Only one of those responses "led to more opportunities for African-Americans." It is not astonishing that there is continued despair in the areas affected by the riots. The riots and the misanthropic cultural response that they represent - and not the "downturn in manufacturing" - is, "in large part," what has devastated and continues to devastate the areas in question.

Assuming the moral throne is unhelpful in dealing to this. I readily agree that historical white racism played a substantial role in creating these circumstances, but, just as you can't cure active lung cancer by stopping your smoking, the solution here has less to do with combatting white racism than addressing the deracinated culture that,to be fair, it has helped to create.