Friday, April 29, 2011

Missing the Point - A Few Examples

One of the fascinating things about our recent contretemps over public employee compensation has been the remarkable lack of self awareness on the part of public employee unions. Two cases in point. Jay Bullock, who I have always thought is a good guy and a smart writer, says that Scott Walker "lies." The jumping off point seems to be an isolated in which Walker said that all he was asking was additional (and rather modest) contributions to their pensions and health insurance.

Not so, says Jay, the budget repair bill eliminates the right of public employee unions to bargain on matters other than compensation. Absolutely true but I don't know that it is fair to say that Walker has "lied" about that. Picking a single statement that is not complete or fully qualified when the peron in question has made many other statements that fully explain the matter at hand is a cheap blogger trick unworthy of Jay. The Governor has explained many times why that is necessary to restrict collective bargaining and how it impacts budgetary issues.

Here's the lack of self awareness part. Jay goes on to demonstrate just why Walker is right. He attempts to illustrate the MTEA contract's breadth by noting that it is 258 pages long. Jay - dude - that's not a refutation of the need for reform. It is proof of the need for reform. No one - and I mean no one - needs a 258 page employment contract. Jay's suggestion that it must be so "to make sure that the best education for our kids is happening at all times" would be laughable if the fact that he apparently believes it wasn't so sad.

All sorts of things get done in this world - supercomputers are built, sattelites are launched and hearts are transplanted - without 258 page employment contracts. In fact, I would argue that, in addition to costing school districts tons of money, this micromanagement of working conditions is one of the reasons that we have seen fifty years of enormous increases in the funding of public education coupled with a general decline in the performance of public schools.

Jay seems to think that things like teacher mentoring programs or procedures for handling assualt on teachers to specifications of the length of the school day will all be eliminated if they aren't in a collective bargaining agreement. Note to Jay: all of these things exist in non-unionized environments. Nonunionized employers do all sorts of things to attract and retain workers and provide services and products that their customers will value. A 258 page contract is not part of the solution; it's part of the problem/

And MichaeL Rosen speculates that Scott Walker wants to raid public employee pension funds. Of course, he can do no such thing. Existing pension funds are legally off limits. This suggests the problem with Rosen's argument that there is no reason to worry about public employee pensions because the state retirement plan is well funded and well managed.

But that only means that the state is currently paying enough into the fund to cover most of the accrued benefits. That's a good thing but has nothing to do with whether the state can afford to continue promising benefits at current levels. It is that question that the Governor proposes to study.

And Rosen ultimately concedes the point although he doesn't recognize it. He concludes by saying that the governor is going to look at public employee pensions because "that's where the money is."


Wednesday, April 27, 2011

Shark on Fox News

My column on the recount is now up at

Assault on the Rule of Law

I thought, for a while, about whether the title of this post was a bit too extreme. My subject is the pressure placed on King & Spalding to drop its representation of the House of Representatives with respect of the Defense of Marriage Act. Gay and lesbian activists pressured the firm in much the same way that the left pressured the local firm of Whyte & Hirshboeck when one of its associates served as local counsel on an amicus brief opposing a procedural challenge to the enactment of the Wisconsin Marriage Amendment.

Unfortunately, it's not too extreme. What happened here is shameful. In succumbing to this pressure, King & Spalding disgraced itself and harmed the profession. In choosing to pressure a law firm for the clients it keeps, the left has taken one more step from the rule of law, civility and an ethos of mutual respect.

There are good reasons to be careful about boycotting or pressuring lawyers for representing unpopular clients. The rule of law applies to the unpopular - even the despised - and one cannot enjoy the protection of the law without a lawyer to secure it.

That's why the title of this post is not extreme.

Sunday, April 24, 2011

Easter Songs

All brought to us by the outstanding young Grace Potter & the Nocturnals. Easter being about hope and resistance.

Faith and doubt.

And hope again.

Wednesday, April 20, 2011

Recount Follies

I'm not going to be too hard on Joanne Kloppenburg for requesting a recount. It's hard to give up something that you have wanted badly, worked hard for and came so close to having - even thinking, albeit rashly and incorrectly, that you had, in fact obtained.

Letting go required facing a very unpleasant reality. It appears she was not up to that. The result will be an expensive tilt at a windmill for the taxpayers (and her donors) and her choice suggests that she may not have the judgment required for the Court. Her references to "suspect" results and the need to restore public integrity were disappointing and her suggestion that there was some need for hand recounts that GAB would request was bizarre. But, then again, we're all human.

I'm not upset about it. It's a colossal waste of money but, in the grand scheme of things, just one more example of that. In fact, recounting Waukesha is probably worth it to shut up the tin foil crowd and the irresponsible politicos among us.

I have less sympathy for those who put her up to it because this is, ultimately, a political act. Democrats are concerned that they will be unable to sustain the anger through the recalls. They believe - probably incorrectly - that this is a way to do it going. Keep the Supreme Court election that proved so useful going and maybe kick up some dust over nothing at all. I have yet to talk to anyone who knows much about these things who thinks that a recount is remotely likely to change the outcome. The reason to ask for one is to not to alter or even confirm the result, but to sustain momentum.

I'm not sure that it works. If it turns out to be the nothing burger than I suspect it will be, it just underscores what is already a bitter defeat. It soaks up money that could presumably have been directed to recalls. It will put the lie - finally - to the Nickolaus conspiracy theories.

On the other hand, I am not a political operative and I assume that some fairly sharp ones on the other side decided that this was worth doing.

Sunday, April 17, 2011

Songs for Tax Sunday

We got the 1040 Blues.

Save us save us from this squeeze.

Don't ask them what they want it for.

Everyone's crying for pennies from heaven.

Monday, April 11, 2011

Election Rumination

In the aftermath of last weeek's Supreme Court vote, observers differed as to whether it reflected a significant Walker backlash. My initial impression was that there is little evidence of that. Having looked closer at the numbers, I still think that's the case although, in the end, a final judgment may require numbers we don't have.

One line of argument is that Kloppenburg and Prosser should never have been close. But all that tells us is that the race was transformed into a partisan referendum. With or without an anti-Walker backlash, a partisan referendum will be close because Wisconsin is a sharply divided state. The fact of the matter is that neither candidate had any significant name recognition going in (very few people know who is on the state supreme court)and, once a judicial election becomes salient (i.e.. people start to pay attention), incumbency isn't the advantage that it might be in other types of races. Up until recently, of course, the races rarely became salient. This one became more salient than most.

One argument looks at differences from the February primary to the April general but that is not all that helpful. Turnout in April was wll over three times what it was in February. It was a completely different electorate in April, i.e.. different people were voting,and there is reason to think that the differences were not neutral between Prosser and Kloppenburg.

The nature of those differences was central to the fears of Prosser's supporters coming into last Tuesday. It looked like a perfect storm was aligned in Kloppenburg's favor. In a relatively low turnout election, you had a well organized special interest in an almost unprecedented state of excitement. That special interest is well known for its ability to run the ground game, i.e., get out the vote. (Conservative candidates in spring judicial elections, for example, hate running when there is a race for the Superintendent of Public Instruction.) If additional turnout was comprised disproportionately of members of public employee unions, the race could be flipped from Prosser to Kloppenburg even in the absence of a more general anti-Walker backlash.

To some extent, that is what happened. Dane County may have set a record for turnout in a spring judicial election. It turned out at approximately 82% of its November 2010 turnout and at almost three times the level for the Butler-Gableman race. It went 73% for Kloppenburg. Turnout was up in other counties as well and three counties with heavy student populations (Portage, Eau Claire and LaCrosse) were up as sharply as Dane. While Dane was around 10% of the vote in November, it was 12% in April. Had I known only this, I would have thought Prosser was dead.

What got in the way of the Kloppenburg win was that increased turnout in other counties, while not as strong as Dane, was not limited to disgruntled public employees. The collar counties around Milwaukee County did not come out like Dane - just around 67% of November's vote and a little over twice the numbers for Butler-Gableman - but they came out and went as heavily for Prosser as Dane went for Kloppenburg.

The other factor is that turnout in Milwaukee was up only as much as in the state generally. It was not whipped into the frenzy that gripped Dane and did not go as heavily for Kloppenburg (about 57% as opposed to 62% for Barrett) as one might have expected.

Without Dane, Prosser wins with 52.6% - closer than it might otherwise have been but hardly indicative of a statewide Walker backlash. Of course, one might just as easily back out the heavily Republican WWOzCo. When you do that and take out the populous and heavily Democratic Milwaukee, Prosser wins by around ten thousand votes.

One could say this is evidence of an anti-Walker move. If you back those five partisan counties out of the November vote, Walker still wins handily. So Kloppenburg did significantly better (a bit over five percentage points) in the remaining 67 counties.

The problem with such a conclusion is that, even though turnout in the Supreme Court race was heavy, it was still only about a third of the November turnout. It would be interesting to know how the composition of the electorate differed. If turnout was more heavily composed of union members and Democrats, the backlash story gets more complicated.

A counter-narrative is that conservatives took everything the left has to give and survived. The budget repair bill will become law and Prosser was reelected to the Court. The recalls may change that narrative but they may also confirm it.

Misstatements and Evasions on the Supreme Court Canvas.

Some of the writing in the aftermath of Thursday's developments in the Supreme Court race was either ignorant in cynical. Charges that votes were found, went unreported or were "manipulated" by the county clerk on her personal computer are demonstrably false. No ballotes were discovered. No votes were counted on Thursday that had not been counted on election night. No votes went unreported on election night although some were not included in the aggregate total reported to the AP. Whatever Kathy Nickolaus did or did not do on her personal computer is wholly without official impact. The votes that count reflected on ballots that were removed from the machines and secured on Tuesday evening along with absentee ballots that were also counted and sealed. Nothing on Kathy Nickolaus' computer has anything to do with the certified vote totals. Anyone who says otherwise doesn't know what he or she is talking about it.

I fully appreciate that there are some people who don't care because lies or feigned ignorance is useful. There are others for whom the truth long ago disappeared into an ideological haze. I am more concerned about otherwise responsible members of the press - people who ought to know better - who retreat into the passive voice - "questions have been raised" - or a studied agnosticism - "some say" - to avoid grappling with actually happened. We hear that this "looks bad." That is no substitute for addressing whether it is is bad.

There is no doubt that Ms. Nickolaus' error hurt the process. But misstatements or obfuscations of what happened hurt it as well.

Friday, April 08, 2011

This is Vanilla

Further to my remarks of yesterday, here is why we shouldn't have to worry much about whether the Waukesha vote totals constitute fraud. The adjustment can be corroborated in a number of ways. First, the voter rolls should reflect the higher number of aggregate votes. Second, the machines should reflect the higher number of aggregate votes. Third, the ballots - which were presumably removed from the machines by the inspectors and secured and sealed (s. 7.51(3)) - will reflect the results. Fourth, examination of her computer will reveal that the votes that she reported to the AP did not include the City of Brookfield - where everyone agrees that people cast these votes and that the votes went overwhelmingly for Prosser. Fifth, examination of her computer and that of the relevant official in Brookfield will show that the city's votes were reported to her. Sixth, the city clerk reported these votes on election night.

There were no votes "found" and no change in the official results. It is inaccurate to call what happened a "ballot blunder." It was not a "counting" error. The votes were not overlooked by the inspectors in the City of Brookfield. They were counted and reported to the county clerk. It was an error in reporting to the media by the county clerk. If she would have reported results by municipality on election night, it would have been immediately evident. In fact, in retrospect, those of us who were following the AP results in real time may have seen it happen when Waukesha's number of precincts reporting changed without a change in the vote totals.

If you read the statutorily prescribed process for counting the votes in Chapter 7 of the state statutes, you'll see that there is a mandatory process of verification and reconciliation called "canvassing" that results in certified vote totals. It was during this process that the reporting error was caught.

The canvas always results in changes to the unofficial totals. We usually don't notice them because they don't make any difference in the outcome. This was a very significant - larger than normal - change, but it is very easy to understand. If you want an analogy, think of the question of whether you overreported or underreported the income reflected on your W-2s. It is what it is.

So we ought to verify. But it is eminently verifiable.

Thursday, April 07, 2011

The Ground War Ends?

If I'm understanding correctly, the error made by Waukesha's county clerk is easily verifiable. She is not changing Waukesha's official return. She is announcing that the official return will differ from what was reported to the media and explaining why. The official return will presumably match the machine tabulation and the ballots which secured on Tuesday evening. This isn't a question of departing from the machine count or of dicovering new ballots.

Folks should look at it but I suspect that it will be pretty straightforward. Its not clear now that there will be a recount or that a recount would have much chance of changing anything.

On the other hand, the one thing that we have learned to expect in the past few months is the unexpected.

Wednesday, April 06, 2011

The Ground War Begins

What can we take away from the Supreme Court vote? I think it suggests that the recalls will fail and there is no groundswell of opposition to Governor Walker. The "backlash" is largely a Dane County phenomenon and that is not surprising. Challenge the prerogatives of the company town and the regulars get mad. Dane County had a disproportionate effect because it turned out like crazy in what was still a low turnout election.

I did an interview for Channel 12 tonight in which they shared some numbers in the districts of GOP Senators who are facing recall petitions. You play four quarters but I don't see the GOP losing Senate seats in our part of the state - and probably no where in the state. Whether the Democrats will lose seats is another issue. My best guess is no change.

As far as recalling the Governor, not a chance.

As for the Supreme Court itself, I have no idea what will happen in the recount and neither does anyone else. A shift of over 205 votes out of almost 1.5 million is not only possible, it may even be likely. In the last statewide recall, on a much less salient issue, the tally shifted by over twice that on a vote that was a little over half of what we had here. The question is which way they will shift. Given that the Kloppenburg margin is driven almost entirely by votes in a county that had become an ideological fever swamp (something that is very likely to create issues), I think predicting the outcome is a fool's game.

If Kloppenburg does win, the conventional wisdom has been that the Court will have a 4-3 liberal majority. Maybe but maybe not. The one thing I am pretty sure won't happen is that the divisions on the Court will go away. For a variety of reasons, I think they will be worse and given some things that happened in this race I think the gloves will be off in a way that they have not been to date. That's too bad for a variety of reasons but it seems inevitable.

Lake Mills

Went 56% for Bush/Cheney and 50% for Obama.

Tuesday, April 05, 2011

And back again

AP's status on the number of outstanding precincts is not quite flawless. Prosser is up 4700 but there are enough out there to make that up - particularly since few to be in obvious Prosser strongholds.

Forth and back

Now a 400 vote lead for Prosser with only five unreported precincts in Dane and 13 in Milwaukee while 68 are yet to report in Waukesha and 19 in Washington. Still a fair number out in Eau Claire and Marathon.

Back and forth

Wow. Prosser now up 500. A 35k margin gone and still a fair number of precincts out in Dane vs. a larger number in Waukesha and Washington. But also a fair number yet to report in Eau Claire and Marathon.

A Barnburner

What did I tell you Fond du Lac is in and Prosser did well but not as well as he might have hoped. The lead is 4k and it a significant turn is going to the 54 out in Dane and Milwaukee vs. the 92 out in Waukesha and Washington.

Where it is

You hate to put up a blog post that becomes immediately dated, but isn't this the thing in the Supreme Court race? Kloppenburg has nontrivial lead (12k votes as I write) and presumably some more votes to gather in that there are still precincts out in Dane and Milwaukee. Her margin in Dane is staggering.

But there are lots of precincts in Waukesha that are out and a goodly number in Washington where Prosser's margin is staggering. And out sits all of Fond du Lac which went handily for Gableman. There are some other places for Kloppenburg to do business but the upside seems better for Prosser. Can he make it up?

Electioneering at the Polling Places.

The GAB has apparently decided that it is OK for people to circulate recall petitions at polling places inside the 100 foot buffer zone - subject to certain restrictions. That's a plausible interpretation of the law but not the only one.

Sec. 12.03(2)(b)1 provides that "[n]o person may engage in electioneering during polling hours on any public property on election day within 100 feet of an entrance to a building containing a polling place." Electioneering is defined as "any activity which is intended to influence voting at an election." Sec. 12.03(4)

In the context of this election, I am not sure that soliciting recall petitions isn't designed to influence voting. I am not sure I'd disagree with the GAB or would go the other way. I am generally loathe to support interpretations of the law that restrict speech or electoral advocacy.

I wouldn't be surprised if we start to see allegations that petition circulators are crossing the line.

The Caperton Problem

On Charlie Sykes show this morning, we talked about Joanne Kloppenburg having a potential Caperton problem on the budget repair bill. Here's the low down. In Caperton v. A.T. Massey Coal Company, the United States Supreme Court held that a judge who has benefited from extraordinary spending by a party with a case that is pending or quite likely to come before the Court may have a constitutional obligation to recuse himself. This is particularly so when that spending and support has has a disproportionate effect on the election. In Caperton, Massey had a huge case that was almost certain to come before the West Virgina Supreme Court. Its CEO spent millions of dollars on behalf of a successful challenger and that challenger refused to step aside in Massey's case. He voted in Massey's favor and the US Supreme Court set aside the decision.

I have done some scholarly work on Caperton in which I argue that it should be read narrowly. But even a fairly narrow reading suggests a potential Caperton problem here. It is in fact a more extreme case than Caperton. Joanne Kloppenburg was almost certain to lose the election prior to the furor over the budget repair bill. In the February primary, Jusice Prosser waxed the field.

Since then public employee unions have, in President Obama's term, got all "wee-wee'd up." They have made a concerted effort to turn the race into a referendum on the budget repair bill and are pouring a lot of money into the race. The bill, while it will not devastate public employees, may well constitute an existential threat to the unions. In states where employees have been given a choice about whether to pay dues, as many as 95% have declined to do so.

Challenges to that bill are pending. In Caperton's terms, there is a potential for a "debt of gratitude" on the part of Kloppenburg to the unions such that there will be the potential for or appearance of a threat to her impartiality. She has, in fact, fanned that flame by winking at the "Prosser is Walker" theme and talking about listening to the voices of the protesters. But Caperton doesn't require that she be actually biased, only that circumstances are such that a jusge might be unable to hold the balance "narrow, straight and true." It is an objective test.

In fact, we may have a stronger case for recusal here than in Caperton. It was far from clear that the money spent in Caperton had an extraordinary impact on the election. Others spent large sums as well and there were all sorts of other reasons that the incumbent lost. If Ms. Kloppenburg wins today, it will be entirely due to the budget repair bill and ensuing efforts to turn the race into a referendum on that bill. Unlike Caperton (in which Massey's case was not an electoral issue), the election will have been about a matter likely to come before the Court.

How this will play out is unclear. The conservative wing on the Wisconsin Supreme Court has - wrongly in my view - said that the court has no power to enforce Caperton and Kloppenburg has - prematurely in my view because she cannot yet know all the pertinent facts - said that she will not recuse. In fact, saying that you won't recuse might be viewed as promising to rule in a certain way on a guestion likely to come before the court, i.e., the request to recuse. (Remember the fact that she believes she can be impartial is not dispositive under Caperton.) If she declines to recuse, the conservative wing of the Court would presumably still take the position that she cannot be compelled to do so.

But if she wins and does not step aside, any decision invalidating the budget repair bill may become subject to United States Supreme Court review. Again the breakdown of votes is confounding, since the conservatives on the Court dissented in Caperton.

But here's a potential scenario. I honestly don't know how David Prosser will vote on challenges to the budget repair bill. I wouldn't expect him to support the open meetings challenge but then I don't expect Pat Crooks to do so either. It's weak.

But I could be wrong. And maybe there are other challenges that will have more merit. All are likely to be based on structural limits on government action and a conservative jurist might be inclined to construe those limits broadly. If the unions defeat Prosser, might they be losing a fourth vote to invalidate the bill and electing someone who will be unable to sit?

Monday, April 04, 2011

More Reflections on Ozanne

Judge Sumi has once again issued an order without explaining her authority to act. I understand that she probably buys the argument that passage of the open meetings law somehow effected, sub silentio, an exception to the general rule against enjoining publication of the law. The idea is the legislature has made itself subject to the law and, therefore, a law passed in violation of the law might be void.

But that begs the question. In all cases in which an injunction against publication is sought, there was an argument that the legislature had failed to abide by a legal command applicable to it. In Goodland, it was the requirement that a 2/3 vote be obtained to override the Governor's veto. While the open meetings law gives courts the authority to declare actions taken in violation of the law to be void, that doesn't mean that they can enjoin the publication of enacted laws. (Incidentally for those who keep saying that Goodland is too old to be the law, it's rationale was reiterated and endorsed in a 1977 decision of the Court, albeit in a different context.)

The error matters here for at least two reasons. First, if the law has been published, it may be effective. Presumably collective bargaining agreements passed in violation of its terms will be void. But it it has not been published and not yet gone into effect, we can expect to see an argument that agreements passed in the period between its enactment and its delayed publication are effective. If those arguments succeed, the court will have - however unintentionally - created an extended window for evasion of the law. (If this doesn't work, incidentally, it may be because the LRB published the law.)

Second, Judge Sumi is now uncertain how to proceed. I can understand why. What does she do with the immune legislative defendants? When, indeed, will their immunity end? This is apparently one of the reason that, having acted with what may turn out to have been undue haste, the court has now continued a temporary restraining order for at least seven weeks for additional briefing.

For those of you are wondering, we normally don't have problems with legislative immunity in cases seeking the invalidation of a law. The reason is we don't sue the legislators. We sue whoever is charged with implementing the law. That didn't happen here - at least in part - because of the desire to enjoin publication. Error begets error.

But beyond all of this, it really helps when a court explains itself. That generally involves identifying an issue, acknowledging the arguments of counsel and explaining why they do or do not apply. That helps the appellate courts, informs the public and may even lead to better decisionmaking. I am not a judge but I am a referee in discipline cases. More than once, I have modified my recommendation because it turns out that, to use the judicial lexicon, it "wouldn't write."

By way of counterexample, I disagree with Judge Conley's decision in Wisconsin Right to Life v. Brennan and think that the United States Supreme Court will go the other way. But he explained - in some detail - why he ruled the way that he did.

In fairness to Judge Sumi, things have moved fast and state court judges don't have the kind of help that federal judges do. It is also possible for an opinion to follow a ruling. I hope she considers that. She may well find that it just doesn't write.