Thursday, March 25, 2010

More Developments at the Wisconsin Supreme Court

I have to say that I was surprised by Justice Gableman's decision to file a motion asking Justice Pat Crooks to recuse himself from his pending disciplinary case. I understand the rationale. Justice Crooks did make remarks pertaining to some of the issues in the disciplinary proceeding in the course of his writings in Allen v. State. Because he had not had the benefit of full briefing and oral argument, these comments might raise concern that he had prejudged the issue. His reference to the comments of Justice Gableman's attorney and Justice Gableman's failure to repudiate them might be seen as importing an extraneous matter into the disciplinary proceeding. What Jim Bopp said in the course of that proceeding and whether or not Justice Gableman denounces his comments has nothing to do with the issues in that proceeding which are limited to whether the Reuben Mitchell ad violated SCR 60.06(3)(c).

It would, I think, have been more judicious for Justice Crooks to refrain from - or temper - these comments. Justice Crooks declined to reach the merits of the recusal motion, so one might reasonably ask why it was necessary to comment at all on the merits - particularly given the pending disciplinary matter.

But do they reflect actual bias - or create an appearance of bias - such that he must recuse himself? The comments were not extensive and to identify a matter as "troubling" is not necessarily to prejudge it. Attorney Bopp's comments are irrelevant to the disciplinary proceeding, but one could argue that they were relevant on the matter of recusal. Although I do not feel that the recusal motions were particularly strong, the appearance of bias could stem from any number of sources. .

Some may perceive a bit of an atmospheric problem here. Justice Gableman is fighting off recusal motions in criminal cases and may be now be seen to be arguing for an aggressive recusal standard in asking Justice Crooks to step down. Of course, there is an answer to that. In Allen, the writings of Justices Roggensack, Prosser and Ziegler emphasized that recusal - at least constitutionally mandated recusal - must be based on bias for or against a particular party (save for bias based on an immutable category such as race). Justice Gableman is alleging that type of bias here. The Allen motion did not. As I argue in an upcoming paper, there is good reason to limit Caperton recusal to that more narrow form of bias.

Of course, given the outcome in Allen, this is likely to be Justice Crooks' decision without review by the full Court. Apart from the merits, it would seem to create real institutional problems if the three Justices who felt there was not power to recuse a peer Justice in Allen were to conclude that there is here and then order Justice Crooks' recusal. I don't see anyway that happens.

We can speculate about the strategic considerations behind the motion as well. Conventional wisdom is that you seek recusal only when you are pretty sure that the judge will step down or when you feel that you have little chance of getting him or her to vote with you. This is reflected in the advice of Ralph Waldo Emerson (“When you strike at a king, you must kill him”)or, if you prefer (and I do), The Wire's Omar White. ("Ayo. Bey. You come at the king, you best miss.")

Is this a gambit to avoid a deadlocked court? Deadlocked over what? The three judge panel recommended dismissal of the complaint against Justice Gableman but on different grounds. Two judges wanted to construe the canon narrowly to impose a mandatory prohibition only on literally false statements and would not extend it to meanings that are (however strongly) implied. Judge Fine did not read the rule in that way, concluding that the message communicated by the ad was false but expressed the view that a prohibition of false statements in political campaigns is unconstitutional. In his view, the only judges of campaign discourse are the voters. (It should be noted that the two judges who would construe the statute narrowly did so to avoid constitutional concerns.)

Resolution of these issues have ramifications beyond the question of discipline. Not only does 60.06(3)(c) prohibit false statements in judicial campaigns, but sec. 12.o5 of the statutes prohibits false statements "affecting an election" in general.

To make this even more interesting, any decision that construes the canon to apply to the Mitchell ad and finds that application to be constitutional raises a federal question. Could this matter ultimately wind up in the United States Supreme Court?

Only Justice Crooks knows what he will do. My strong suspicion is that he stays on the case although I am not sure that I would want to blame any of the justices who seized an opportunity to remove themselves from this.

Bonus: Commenting on the motion, former Justice William Bablitch says that the recusal motion is "not a good way to win friends and influence people," and that "[i]t exacerbates an already tenuous group of relationships."

I can't disagree, but there is a certain irony here. Justice Bablitch's support of a candidate challenging one of his colleagues, Chief Justice Shirley Abramhamson (support that was joined by three other members of the Court), probably made for a few frosty decision conferences as well. The fact of "tenuous relationships" on the Court is not new.

Cross posted at the Marquette University Law School Faculty Blog

Tuesday, March 23, 2010

L'Affaire ASA: Not What It Seemed To Be

During the 2009 Milwaukee school board elections, there was a dust-up over the activities of a group called Advocates for Student Achievement.The group encouraged people to run for the school board and formed a PAC that supported certain candidates. ASA was perceived to be a threat to the teachers' union and a public employee union front called Citizens Action filed a complaint claiming that it had violated campaign finance laws. This week, ASA agreed to pay $5000 to resolve a civil complaint filed by the District Attorney's office.

I paid little attention at the time but a few weeks ago, I was asked to consult with the ASA board on the matter. Essentially, I took an independent look at the case, advised on the impact of Citizens United on the case and attended one meeting with John Chisolm and Bruce Landgraf, along with ASA's counsel of record, Mike Maistelman. I did not negotiate the settlement or advise the group whether or not to accept it. (I express no opinion on that.) I acted on a pro bono basis and received absolutely nothing for whatever service I provided.

I don't intend to criticize the DA's office. It seems to be hearing different things from different people and some of it may not have withstood the scrutiny of trial. District Attorney Chisolm and Assistant District Attorney Landgraf should be commended for realizing that this was not a criminal matter and that the folks associated with ASA were well meaning. There were powerful political incentives for them to go another way. But, notwithstanding my somewhat different view of the case, I do believe that they played it straight.

Some of its case was impacted by Citizens United and the people involved with ASA - who were not political pros - did not handle this type of thing (the combination of a 501(c)(4) with a PAC) in the way that pros do. They had some bookkeeping snafus and may have slightly exceeded the contribution limits.

My remarks here are not intended to be "on behalf" of ASA. While I would not, given the fact that we did have an attorney-client relationship, disclose confidential communications or say anything that they objected to, these views are my own.

Whatever mistakes the ASA people made, the more serious threat to public participation has been presented by its critics. In particular, the horror over ASA exhibited by local bloggers and that august organ to the 1-900 community, the Shepherd Express, is misplaced. A close look at ASA shows that the matter was much ado about very little and the full court press against ASA by Citizens Action and the Crazy Shepherd was nothing but an assault on unwanted public participation in school board elections. The folks at ASA should have been more sophisticated. Lou Fortis, Lisa Kaiser and all of the usual suspects should be ashamed of themselves.

ASA was formed to encourage people to run for school board. In what it referred to as "phase one" of its activities, it offered information to anyone who wanted to run. It turned down no one. It commissioned some issue papers written by lefty blogger Mike Mathias and made them available to anyone who wanted them, posting them on the group's website. There is nothing even arguably wrong with that.

Three of the people who went through the ASA process decided to run. ASA ultimately decided to support them (even though certain of its principals had major substantive differences with at least one of the candidates) and contributed the maximum amount to each through its PAC. There is nothing wrong with that.

However, ASA continued to run what appears to have been a "support group" session for the three on Saturday mornings lead by a person who had previously run for the school board. (They also invited a non-ASA endorsed candidate - Mike Mathias - but he did not participate.) This, in and of itself, would not have been a problem. The group leader was a volunteer and received no money - but ASA's PAC did pay something between $100 and $200 for coffee and donuts at these meetings. If this is regarded as a "contribution" to the campaign of the three (not a self evident proposition), then the ASA PAC would have exceeded the contribution limit for each by something less than $ 100.00 each.

The Shepherd Express is still saying that ASA "commissioned a $12,000 poll to discredit opposing candidates." It repeats Citizen Action's allegation that the poll results were supplied to the favored candidates and couldn't be accessed by the opponents of those candidates.

Here is the truth. ASA did commission a poll but did it independently without the input of any of the candidates. While there have been accusations that this was a push poll that was being used to discredit opposing candidates, I have read the survey instrument. It think I know what a push poll is. It wasn't a push poll.

But even if it was, after Citizens United, independent push polls are constitutionally protected. They constitute express advocacy.

The other allegation is that the poll - because the results were provided to the candidates - constituted an in-kind contribution. Wisconsin law, GAB 1.65(2) does provide that "transfer to a candidate or committee of the results of a poll or survey, other than by a sale, is an in-kind contribution." But there are a few problems.

The topline results were provided to the three candidates. But 48 hours later, they were released to the world. Now, you could argue that the rule makes any poll made available to any candidate an in-kind contribution, but that is an absurd construction. By that reasoning, ASA would also have made a contribution to the opponents of the three because they had access to the topline results as well. It would also seem completely incompatible with the Supreme Court's doctrine on independent advocacy. Commissioning and publishing poll results is constitutionally protected speech.

It might be different if there had been results that were shared with the three candidates but not with the world. It might be different had the three candidates participated in the formulation of the poll. But it appears that neither is the case. Unless one thinks it's legally significant that the poll was "leaked" to the three two days before it was shared with the world (one of those legal propositions too silly to waste time on), the poll would support no violations.

Finally, there were a number of things done "by ASA" that constituted express advocacy (although not much), advice or fundraising. But, as Citizens United has told us, ASA was free to engage in express advocacy. Second, although these volunteers may have given advice to candidates, that isn't an in-kind contribution either. I have given (solicited and unsolicited) to candidates. Was that a campaign contribution ? Third, the fundraising consisted of communications by volunteers who identified themselves as associated with ASA. It appears that no corporate funds were used so there could be no in-kind contribution. What was important is that the funds - if they were to be contributed to a candidate - be properly channeled through a PAC. They were. If volunteer activities by persons associated with a corporation or union are going to be considered in-kind contributions, then WEAC is going to need its own wing at Taycheedah and Waupun.

Now, to be sure, professionals would have been more careful to distinguish between who was doing what. Although ASA has been characterized as a dark conservative conspiracy, it appears that all but one of the board members voted for President Obama (this was a great disappointment to me - such nice and intelligent people - but let a thousand flowers bloom). These were people who received nothing for themselves and who were trying to do what they thought was good for the community. That they have had their reputations dragged through the mud by a partisan group and a notoriously irresponsible tabloid is a shame.

Shark in WI Interest

My latest Culture Con column is out in the WI Interest. I should also point out that there is a nice article on my boss. Read that after you've read mine.

Sunday, March 21, 2010

Ten Questions On Health Care

Nancy Pelosi says that we are on the doorstep of history. Perhaps. History is a an uncertain host. As Mark Steyn said, last week we are on the front porch of history. But, back in December, we were at the garden gate of history. Then Scott Brown was elected, and we backed down the front drive of history, reversing over the neighbor's dog of history.

But as we wait for the passage of ObamaCare, here are a few thoughts. We all know the old saw about legislation and sausage making, but if this reform package is indeed the historic act of compassion and cost control that it is said to be, how do we answer these questions?

1. Why is it necessary to dissemble about its costs? The CBO score is a pastiche of odd inclusions (savings on student loans?), omissions and unlikely assumptions. As the public opinion polls reflect, it is fooling no one but the Democrats, certain elements of the mainstream media and Paul Krugman. (In fairness, the dissembling largely consists of treating the CBO score as something more valuable than it is, see, e.g,. Nancy Pelosi. ("I love the numbers. They're so precise.")

2. Why not pay for it? This question is a subpart of the first. The bill is going to cost quite a bit of money and it is not close to being paid for. If this is such a wonderful thing, then its proponents should not fear an honest assessment of what it will take to fund.

3. Why support it with a series of red herrings and dubious assertions? The post-partisan - no post-political - President Obama has decided to double down on blaming problems with the health care system on the insurance companies. This is silly. Insurance company profit is a tiny sliver of the cost of health care. The inability to get someone else to pay for the cost of treating your pre-existing condition is a problem that requires a solution, but it is not the fault of insurance companies. Covering a pre-existing condition is not insurance.

Most people get insurance through their employers and, by law, most who do have coverage for pre-existing conditions. (Most of those folks, moreover, aren't covered by an "insurance company" at all.)

We could go on. It is highly unlikely that extending coverage to uninsured persons will reduce the cost of their care. It is probable that additional preventive care will increase, rather than decrease, spending on health care, etc.

The bill might still be a good idea. But, if it is, why support it with bad arguments?

4. Why hide the ball on cost controls? It is still unclear to me why the bill is supposed to reduce costs. It certainly does provide a mechanism to aggressively ration care under Medicare and Medicaid by turning them into the Mother of HMOs. But there seems to be a step two that will be required. The President has advocated price controls - an economically illiterate idea - but its apparently out because it couldn't be enacted through reconciliation. Perhaps the idea will be to impose "best practices" (i.e., rationing) on private plans through the manipulation of subsidies and the definition of qualified plans. Whatever the case may be, why not put everything on the table now - as we enact "comprehensive reform." How we are to control costs is not unrelated to - and might rationally affect decisionmaking on - how we provide care.

5. Why enact a bill that is almost certainly unworkable? And not only because it's going to cost a lot more than is claimed and is not paid for. The only way that requirements that preexisting conditions be covered and that not result in higher premiums can possibly work is a coverage mandate. The bill has that, but it seems that the penalty that is to be charged for failing to obtain coverage is substantially less than this coverage would cost. If that's so, then why wouldn't it be rational to wait until you have a significant health issue and buy coverage then? The bill does things - like gutting Medicare Advantage (the Q-Tip vote is going to go ballistic on this, just wait)) and ignoring the doc fix - that no one believes can last. Nancy Pelosi says that after "we kick in this door" there will be more legislation. They'll have to be. If we know that now and we are enacting "comprehensive reform," why not address these matters? The solution might be relevant to how the current bill should be structured.

6. Why deny the bill is what it is? It may not be a "government takeover" of health care in the sense of a single payer system, but it is a massive increase both in government spending on health care and federal management of the health care system. Forever more, the key decisions on health care are going to be made in Washington DC because he who pays the piper calls the tune. The public sees this and that is why it strongly opposes the bill. But if the public is wrong and centralized management of the health care system by politicians and bureaucrats is a good idea, then why not make the case?

7. Why mislead the public about its impact? Many, many people are going to lose the coverage that they have. The distinction between being directly forced to drop it and losing it because of the effects of "reform" is specious and yet the President continues to make this point. The bill is may create a two tiered system of people with relatively robust employer-provided coverage and people on something like Medicaid. You can say that we have that now but it seems likely that one of the prices for expanding coverage may be to weaken coverage for some who already have it. Will 85% of the public still be happy with their health care? By increasing the marginal cost of labor, it may increase unemployment. Is that worth it? We can't decide if we don't acknowledge the trade-offs.

8. Why freeze out the Republicans? There was nothing bipartisan about putting this together. We started with the Obama plan and then tweaked it to get enough Democrat votes to pass it. No Republican amendments or alternatives need apply.

9. Why ignore public sentiment? Here is what the Democrats are telling the public: You don't know what you're talking about it. We know better than you what is good for you. Rather than take his case to the public, the President is taking it to a handful of obscure Congressman and offering Obama knows what. That's fine when your proposal isn't down by double digits in most polls.

10. Why pass a bill with real constitutional problems? It is far from clear that challenges to the mandate or, depending on what they do today, the method of the bill's enactment will succeed, but there are very substantial issues. Both could readily be avoided. If we are going to do more than have a quick look around history's foyer, shouldn't they have been?

Thursday, March 18, 2010

What changed?

We should now expect to hear that there have been very substantial changes in the Senate health care bill. The CBO score apparently says that we can expand coverage and government subsidies to health care at, roughly, the cost and "deficit reduction" associated with the Senate bill. But we know that result was possible only with all sorts of assumptions - double counting of Medicare costs, assuming that a doc fix that we all know will happen won't, frontloaded tax increases, assuming savings that are far from certain (or even likely to happen) that have been fueled withering criticism.

Either those criticisms remain valid or there have been some significant changes. Spending has been cut. Taxes have been increased.

I can't wait to find out.

Wednesday, March 17, 2010

Obama is striking out

The President's performance on Fox News, happening now, is atrocious. He's interrupting, imperious and evasive. This is really going to hurt him. The right is going to have a field day with the clips. He seems to have believed his own propaganda about Fox and is way too combative. His answer on Medicare cuts is close to incomprehensible.

The Presidential Brackets

The President's selections are pretty chalk but, where he departs, he's giving some swing state love.

To us.

And I have to give credit where it's due. He has both Wisconsin and Marquette in the Sweet Sixteen. The former is just following the seeds, but the latter is his most significant departure from chalk. I agree. I think there's even a small chance that Marquette makes it to the Elite Eight.

But I also like UTEP in the Sixteen. Other potential upsets are A & M over Duke and, if you really want a Cinderella run, how about Utah State or even Siena into the Elite Eight? Not going to happen but, if A & M falters, we just know Duke is going to disappoint ....

My Final Four? Kansas, Pitt, Kentucky and Villanova. I agree with the President. Kansas beats Kentucky on Monday night.

Monday, March 15, 2010

More Fluff on "Transit"

Yesterday's Journal Sentinel featured a column by "our" Transit Advisory Committee. The Committee, apparently an organ formed by the Milwaukee County Board of Supervisors to advocate for addition spending on buses and the creation of a regional transit authority claims to "represent a broad cross-section of people in the county affected by transit, which is to say, everyone."

It's hard to imagine a less representative group of people. The group is dominated by people with ties to County government or the transit system. Even the percentage who say they are transit riders (a majority) is unrepresentative because the fact of the matter is that, in southeastern Wisconsin, most people rarely see the inside of a bus.

This isn't to say that buses aren't necessary. It's not even to say that they should not be subsidized. But the column is typical of the approach taken by "transit advocates." There isn't even a pass at establishing that a relationship between the costs of the system and the services it provides.

We see the same thing - repeatedly - from rail advocates. Folks like me - who might be persuadable but are skeptical - have to go a long way to get credible information on such matters.

Friday, March 12, 2010

They Were Not the Ones We've Been Waiting For

I would call Nancy Pelosi's statement the "we have to pass the [health care] bill so that you can find out what is in it ..." qualifies as an unforced error. I assume that she did not mean to say that no one knows what is in the bill but was trying to convey something along the lines of "just wait, you'll like it." (The words immediately following the offending quote were "away from the fog of controversy.")

Putting aside the idea that honest controversy constitutes a "fog," I nevertheless think that what she did not mean to say is more accurate than the meaning that she did intend.

She wants the public to "trust" their leaders to do what is "right." We needn't know now just what that will be.

Not only are there relatively few legislators who know what is in the bill, knowing what is in the bill is of limited help in finding out just what it will do to our health care system. As Charles Kesler writes in the latest issue of the indispensable Claremont Review of Books, the House bill, for example, contains:

scores of places where power is delegated to administrative agencies and special boards, which are charged to fill the gaps in the written legislation by
promulgating thousands,if not tens of thousands of new regulations that will
then be applied to individual cases. Voters sometimes complain that legislators
don't read the laws they enact. Why should they,in this case? You could read
this leviathan until your eyeballs popped out and still not find any "settled,
standing rules" or meaning that is "indifferent,and the same to all parties.

Of course, the administrative state is not a creation of the health care bill, but this is an extraordinary expansion of it in an area that is of great personal interest to and has a direct and immediately discernable impact upon individuals. Are there "death panels" or other mechanisms for rationing care in the bill? Well, there are certainly processes by which such rationing could occur. Just how it will happen is to be determined later.

Speaker Pelosi has made fun of ObamaCare critics who have suggested less ambitious reform ridiculing an "eensy,weensy spider" way of proceeding. Maybe so, but the public is understandably hinky about placing the most effective and advanced health care system in the world (and I mean both of those things) - one that delivers satisfactory care to an overwhelming majority of the population - into the hands of unknown pashas.

In the same speech, Speaker Pelosi gushes about how wonderful things will be. There will be "prevention, prevention, prevention" because its about "diet, not diabetes." I think that the public understands that when the good life is to be provided by the state, liberty, as Kesler puts it, "ceases to be a right and becomes a gift." It turns out that the public is less interested in being saved by Speaker Pelosi and President Obama than was commonly assumed.

Thursday, March 04, 2010

Congratulations to Bill Conley

Congratulations to my former partner, Bill Conley, who has been confirmed as a United States District Judge in the Western District of Wisconsin. While Bill and I may have some political differences, he is, as I have said before, a splendid lawyer and was a very good nominee.

Wednesday, March 03, 2010

Shark on Dead Tree

My latest column in the Milwaukee Journal Sentinel is here. I have a little over 500 words in the daily paper and decided to explain the concerns of Justices Prosser, Roggensack and Ziegler in State v. Allen. Of course, there is much more to say on the matter and I am finishing a law review article (more like 12,ooo words) that tries to do that.

I understand that this may, once again, prompt some to talk smack on the Gableman ad which I have, of course, criticized. (In fact, my criticism was cited by briefs in support of at least some of the recusal motions.) Nor does this necessarily mean that the position of those three justices on the power of the Court to mandate the recusal of a peer justice is consistent with Caperton. I think that's a more difficult question.

What I do maintain is that aggressive recusal requirements - particularly when not based on allegations of bias against a particular person or class of persons defined in a way that is divorced from judicial philosophy - will become unmanageable.