Sunday, February 26, 2012

Misuse of Ryan Braun Decision

So it turns out that some folks on the left want to use the Braun verdict as some kind of validation of the supposedly unique benefits offered by collective bargaining. Apparently non-unionized employers who do drug testing don't care about chain of custody or whether their testing results are accurate. They just want to jettison employees without regard to whether or not they have used drugs.

I have advised on such a program (although I am not a fan of drug testing in non-hazardous or athletic workplaces) and I must have been hallucinating about the care and fairness that non-unionized employer insisted upon. Yes, they were wonderful people but they were also acting in their self interest. Why would you want a program that wasn't as accurate?

There are arguments that can be made for unionization. But treating employees more "fairly" is generally not one of them. Under certain circumstances - mostly in private companies facing few competitive pressures, unions can increase wages. The implementation of work rules and process beyond those that an employer would rationally choose are far more likely to protect poor performers than the unjustly treated.

Friday, February 24, 2012

Well I hate to say ...

So the Democrats have now dropped their claim of a partisan gerrymander. This is the one I said was "almost frivolous." Comments are open for apologies.

Majority Minority Districts Are Not a Simple Matter

Fantastic column by Aaron Rodriguez in today's Journal Sentinel on the drawing of Assembly districts on the south side of Milwaukee. There are two views on how to treat minority populations in redistricting.

One is to say that we should do whatever we can to create districts that have a sufficiently large minority population to permit a minorty group to elect the candidate of its choice. The traditional view is that this requires a supermajority minority district because of differences in turnout, age and, in some case, citizenship status between minority and white populations.

In the past, this has often created an alliance between minority groups and Republicans. Republicans have no objection to packing minority voters who noramlly vote for Democrats and professional minority groups want to get a safe district.

But there is another view. Maybe it would be better to have a larger number of districts in which voters of a minority group would have a chance to elect the candidate of their choice - or to influence the outcome. Is it, for example, better to have a one 65% Hispanic district or two 55% Hispanic districts?

The answer is not obvious even if the only thing that you consider is "what should Hispanic voters want?" And, from a legal perspective, the question becomes more vexed because what Hispanic voters would want is not the legal standard for redistricting.

MLB Hits a Foul Ball

As I understand the rules that Major League Baseball agreed to abide by in administering its drug testing program, drug testing and any appeal of a positive test result is to remain confidential until the process has run its course and a sanction is imposed. Even then, what can be said publicly is very limited.

This policy of confidentiality was violated when someone leaked Braun's test results to ESPN. Assuming (and I think we can) that Braun didn't leak it, the guilty party was almost certainly an employee or agent of MLB. MLB should be embarrassed by that. In light of that, its decision to issue a statement that MLB "vehemently" disagrees with the arbitration panel's decision to throw out Braun's positive test and rescind his suspension is, as they say in the game, bush league. 

Had someone working for MLB not leaked the results, it could have made no public statement about the arbitration decision. No one would have known of the test results or the appeal.

But, now, because MLB violated its agreement with the players once, it apparently has decided to double down and break the rules - or at least their spirit - once again.

The agreement does have a provision that allows MLB to "respond to any inaccurate or misleading claims by ... [a] Player that could undermine the integrity and/or credibility of the Program. " Perhaps that's how they would justify what otherwise appears to be an impermissible statement. Braun defended himself.

But Braun wouldn't have had to defend himself if MLB had managed to follow the rules in the first instance. I understand that it may think Braun is guilty or be worried about the implications of a player getting off and undermining the impression that the drug testing is flawless. They may have thought that the neutral arbitrator imposed  a standard for assessing the validity of the chain of custody that was too high.

But the fact that this has become public is MLB's fault. It should have taken its lumps and kept its collective mouth shut.

Thursday, February 23, 2012

More Scientists Behaving Badly

By way of full disclosure, I am a Policy Advisor with the Heartland Institute. My guess is that I have spent about two hours ever doing anything in connection with it and the post is without renumeration in any form. But there you have it.

I not entirely in agreement with Heartland' s position on global warming. Everytime I delve into the topic, it seems to me that is entirely possible that human activity is causing warming but that it is almost impossible to be certain or to know the magnitude. Claims of catastropic consequences seem overblown and many of the proposed remedies are worse than the disease. I would think that policy responses are appropriate but not the ones most often advanced by the environmental left.

But, although there have been recent reports that scientific misconduct may be greater than we'd expect, I have never - ever - heard of scientists behaving as badly as some of the more adamant proponents of the "AGW as existential threat" school. We're all aware of the Climategate e-mails, but, now, someone apparently called Heartland and lied to get a staffer to send out a confidential package of materials for a board meeting. It appears that one of the documents - setting forth strategy on climate issues - is a phony although it is unclear where it comes from. It was not among the documents fraudulently obtained from Heartland.

So who lied to Heartland to get its documents. I would have expected the culprit to be a blogger or some clever but unknown person without a reputation to protect. It turns out to have been Peter Gleick — a MacArthur “Genius Award” recipient, a (recently resigned) chairman of the “Task Force on Ethics” at the American Geophysical Union, a (recently resigned) member of the National Center for Science Education, and current president of the Pacific Institute.

Megan McCardle (who supports carbon taxes in response to AGW) tells the story. Gleick doesn't admit creating the allegedly forged document. But he does admit lying to Heartland in order to fraudulently obtain its internal documents. As Megan McCardle puts it, "this is that this would be an absolutely astonishing lapse of judgement for someone in their mid-twenties, and is truly flabbergasting coming from a research institute head in his mid-fifties." She writes that "what Gleick did is insane for someone in his position--so crazy that I confess to wondering whether he doesn't have some sort of underlying medical condition that requires urgent treatment."

If AGW skeptics wanted to stage misbehavior in order to discredit people supported a more dire view of AGW, they couldn't have done better. You can't make this stuff up.

As an aside, the Heartland documents discuss an educational project in Wisconsin called "Operation Angry Badger." Until I read the leaked documents, I never heard of it and don't know the first thing about it.

Redistricting Trial: Some Things to Watch

Here are some observations regarding the redistricting case. 

First, while press reports on legal matters are notoriously inaccurate, Pat Marley is a pretty good reporter. He reports Judge Stadtmueller as announcing that "appearances are everything." The context of the statement is unclear so I express not view on the remark,. But it does suggest an important question.

Are "appearances" anything in this case?

Let's get this out of the way. While I am reluctant to second guess lawyers who actually had to make a particular decision, I agree that having legislators sign nondisclosure agreements looks like a  bad idea.  I am not certain that such agreements would even be enforceable. It also seems that the Republicans tried to claim privilege over too much and fought too hard over producing documents in discovery. You can't make communications subject to privilege by the simple expedient of passing the through a lawyer and, while it's hard to be sure without going over all the filings, it appears that they tried to wall off an awful lot.*

Because I have seen lots of lawyers try to do something like this, I am not as outraged by it as others might be. Contrary to what is reported in the papers, it is not at all clear that it kept much  private that would have otherwise been unilaterally made public during the legislative process. Legislative caucuses typically keep their strategies close to the vest and it is not unusual to outside consultants to be employed in redistricting. That documents might be subject to an open records request does not mean that they will - or must be - made public in the absence of a request.

But however one regards this,  it has relatively little to do with the merits ot the plan.

First, discovery is something that happens in litigation after the fact. Trying to evade discovery cannot form a basis for invalidation of the plan. While judges can enter judgment as a sanction for discovery abuse. that is clearly not warranted by the (admittedly aggressive) position that the Republican legislators took on discovery and would be almost - if not completely - unheard of in a case of this public importance.

So for any of these "appearances" to be relevant, they would have to transgress some judicially enforceable federal law. It does not good to say that you think that the Republicans violated traditional notions of open government. That is not a violation of federal law.

There is no federal duty to make drafting records public or to take more time to draft a plan or to permit more public input or even to hold discussions of the plan in public. To be sure, such records might be subject to the state open records law and a gathering of legislators might be subject to the open meetings law, but none of those things are issues in the redistricting case nor, as we will see, could they be.

Federal courts do not have a freestanding authority to overturn legislative enactments because they don't like the process by which they were accomplished. Unless these appearances can be connected to a cause of action  cognizable in federal court, they mean nothing.

The only way I can think of that happening is that if it was found to be probative of some prohibited intent. But, as I have written before, a desire to obtain partisan advantage is not one of those.

Second (and somewhat related), Judge Stadtmueller's reported remarks also seem to suggest that he assumes the court can entertain state law claims. This may be misreported, but it suggests an important point. As a general matter, federal courts will not order state officials to conform their conduct to state law. See, e.g., Pennhurst v, Halderman, It's an Eleventh Amendment thing. Maybe there is some basis for avoiding that limitation here, but the presumption would seem to run the other way.

This is significant for a number of reasons. While I have argued that a challenge to the plan as a partisan gerrymander or to the districts as insufficiently contiguous and compact is next to impossible under applicable federal law, I have also argued that such a claim may be more likely to succeed under the state constitution which has a requirement that districts be as contiguous and compact as possible. The plaintiffs could have pursued this claim in state court. They chose not to do so. It's unclear  that they can even raise the claim in federal court. Again, the general rule is that they cannot.

So this would mean - no state constitutional claim. No Open Meetings claims . No claim based on the state constitutional guarantee of open sessions of the legislature. (I don't think that the latter two claims would have any merit, but it would seem that they don't even get out of the gate here.)

Third, the state defendants argued that they cannot change the plan due to a Supreme Court decision called State ex rel Smith v. Zimmerman. That case said that Art. IV, sec. 3 of the Wisconsin Constitution permits only one redistricting between the decennial censuses.

I don't agree. Lawyers for the plaintiffs argued, at least, that Zimmerman shouldn't apply because the legislature is still in the same session.

That's not a bad argument. Art. IV, sec. 3 says that the reapportionment must be done during the first session after an enumeration. So maybe the "one time only" limitation can be read to apply to the entire session.

Still, if that were the only way to distinguish Zimmerman, I'd be with the defendants. But there's more. Zimmerman was decided before federal review of redistricting was as common place as it is today. It is not clear to me that the Wisconsin Supreme Court would apply Zimmerman to prohibit amendments to bolster a plan's resistance to federal view. There are a number of cases in which federal courts have found a plan wanting but permitted the legislature to take first crack at fixing it (although that is, admittedly, a different issue.)

This morning the panel has ruled that the legislature can amend the plan. While I think that's correct, a federal court is not the ultimate arbiter of that issue. It may well be that someone will challenge any amendment of the plan under Zimmerman in state court. (Such a claim would, however, become moot should the plan be found to be legally deficient.)

Fourth, the Republicans have announced that they do not intend to change the plan. I understand the rationale. Even if they could satisfy the demands of some of the plaintiffs (and they probably couldn't), others might sue.

But could they have - and should they have - changed a plan in a way that would have resolved the case.

There seem to be two issues. One is that there are presumably "too many" voters who have been moved to a new district in a way that causes them to have to wait an extra two years to vote for a Senator. This happens when voters are moved between odd numbered and even numbered districts (which is all the time). Depending on which group was up during the last time the old maps were used, some of these voters will wind up having to wait six years to vote for a Senator. To use s simple example, imagine that I lived in District 1 and  have been moved to District 2. Assume a plan has gone into effect and that even numbered districts voted in 2010. I last voted for the state senate in 2008. I won't be able to do so again until 2014.

Courts have recognized that this is an inevitable feature of redistricting and have rejected claims that this is unconstitutional disenfranchisement. The reasoning is that the need to defer to state legislatures and to redistrict outweighs the harm from any temporary disenfranchisement,.

A 1983 case from Wisconsin, Republican Party v. Elections Board , did invalidate a plan on that basis. But it is not particularly helpful here because that case seems to have turned on the fact that voters were "deferred" as a  result of a plan adopted after a constitutionally valid plan was already in place. The court expressly stated that, had the same plan been adopted in the first instance, it would have been upheld yet because the plan moved voters from even to odd districts it still would have in voters having to wait six years.

So the argument has to be that there are "too many" voters who have to wait an extra two years. But  how one could go about deciding how many deferred voters is "too many" is hard to imagine. One could, I suppose, adopt a rule that a new plan must deviate as little as possible from an old plan but there is absolutely no legal support for that. The old plan does not occupy a position of privilege.

If a partisan gerrymander is effectively nonjusticiable, I can't imagine how this could be.The theory seems to be that the burden of proof should be shifted and the legislature should be required to explain why they did what they did. My guess is that the legislature will be able to offer some justification, but the problem is that redistricting is a zero sum game in which any particular decision is a product of many other decisions. There are literally hundreds of options and all will have various strengths and weaknesses. The various criteria by which a plan might be considered "strong" or "weak" are multiple and often contradictory. There is no real way to choose among them and this is why allegations of partisan gerrymanders have, one way or another, been nonstarters.

The other issue  is whether one should have created a different Hispanic majority district on the south side of Milwaukee under sec. 2 of the Voting Rights Act. This has to do with whether or not a relatively small number of voters should have been moved from one district to another and which of a number of alternatives - which were negotiated with various Hispanic groups - should have been adopted. **

The law on this is complicated - even convoluted. One must show that a 1) a minority group is sufficiently large and geographically compact to comprise a majority of the district; 2) the minority group is politically cohesive (it must demonstrate a pattern of voting for the same candidates); and, 3) white voters vote sufficiently as a bloc usually to defeat the minority group’s preferred candidate. But even then, it must be determined that, under a totality of the circumstances, the failure to create a majority minority district deprives minority voters an opportunity to elect candidates of their choice.

As a general matter, Republicans love to create majority minority voters. It involves packing Democratic voters which is a time honored way of drawing a favorable map, Here there were a number of alternatives discussed with Hispanic groups and, from the perspective of wanting to maximize Hispanic political influence, there were reasonable arguments to be made in favor of all of them. In fact, one Hispanic group has already announced that they would sue if the legislature departed from the current map.

This is a small part of the plan and doing what the plaintiffs want would do little or nothing to change the plan's acceptability to Democrats and Republicans. It's not at all clear to me that justice - or even the interests of Hispanics - would be served by giving Voces the south side district that it wants. To be sure any change to a map has ripple effects, but a change here wouldn't hurt Republicans much  or do much for Democrats. A case could have been made that redrawing the plan to give Voces what it wants would be the better part of valor and would not cede much legislative prerogative.
But that's not what happened so here we go. Comments are on but posts that do nothing but call names or make personal attacks will be removed. I am interested in substantive responses only. No one cares about your snark.

*UPDATE: I have now read portions of Jim Troupis' deposition which was taken last night. While Jim was apparently not involved with nondisclosure agreements (or discovery in the litigation), he offers a trenchant explanation of why maps need to be held close to the vest - even from members of the majority caucus - in order to get them done. NDAs may be bad atmospherically and, as I say, might not be enforceable, but having the whole caucus - much less the whole legislature - in the process of drafting maps would be, he says, like "herding cats." Jim offers a quite cogent explanation of the process and why it was conducted in the way it was.It won't convince the rabidly partisan, but if you have questions about the process, you should read the transcript. It's quite instructive and undercuts much of the false outrage.

**UPDATE: Today's paper breathlessly reports the testimony of a UW Political Science Professor that more voters were moved "than needed." To say that something was more than necessary requires the establishment of a standard by which "need" can be measured. Moving as few people as possible could be a standard but it's not one that is legally privileged or a constitutional reguirement for redistricting.

Monday, February 20, 2012

The Final Word (for now)

With this post, I said that there was one more point to be made (for now) about the John Doe proceeding. Suggestions have been made that the mere presence of things like cell phones and laptops were glaring evidence of wrongdoing.

Not so easy.

My consistent view has been that an absolute prohibition on politics in a government office by political appointees is unworkable and that criminalization of such a activities raises profound due process concerns as the Supreme Court's split decisions in the Caucus cases (Crooks and Roggensack, JJ. shared my concern) demonstrate.

There are some things - but not as much as you'd suppose - that the law clearly prohibits, i.e., fundraising from government offices. I have some questions about charging this as a felony but zi agree that the activity is just not permitted.

After that, there are two categories of potentially "political" activity. One category, explored here, would be activities where politics and policy are inextricably intertwined. I would think that such activity is part of the activity of a government agency and should be conducted with government facilities. No should be accused of wrongdoing but any documents created ought to be subject to the open records law.

I can imagine that some public officials might think that this activity is "too political" to be conducted on government computers but I think that is wrong. I would object to the use of personal phones and computers for this category of activities not because it is intrinsically wrong, but because it risks - and might be improperly intended - to place any documents created outside the scope of the open records law.

This does not mean that personal phones or laptops are wrong. It just raises questions about how they are used.

The second category would be activities that are clearly and completely political. It may be that such activity should never take place during traditional work hours using government computers. But, at least in my view, that is a personnel and not a criminal issue.

And, for certain appointees, it may not even be much of a personnel issue. Any public official who is running for re-election is likely to have key appointees working on that campaign. These people generally work long hours and it may well be that they must attend to political matters during normal business hours. Conducting that business on nongovernmental computers might be seen as a reasonable accommodation of their dual roles. So someone in Mayor Barrett's office who must take a call or send an e-mail on political business and who does it on a nongovernmental cell phone or lap top is not doing anything wrong.

With this category of activity, the question becomes how much time is being spent on political as opposed to governmental business. If someone is never doing the taxpayer's work but just working on politics, we have a problem.

But, even here, we have a certain schizophrenia. We allow - indeed we have a tradition of  permitting - public officals to spend much of their time - while they are presumably working full time for the taxpayers - to run for office. Does anyone really think that, during campaign season, Sens. Clinton, Edwards, Kerry, McCain or Govs. Perry or Palin spent much time on official business?

There are reasons to treat elected officials different than staffers. It would be troublesome, on a number of grounds, to treat elected officials in a way that made it difficult for them to run for re-election or another office. There is, in any event, a remedy at the polls.

There is not the same concern with respect to staffers and not the same remedy. But maybe we don't to slice the loaf too thinly. In the end, we may find that a strict separation of policy and politics doesn't work at all levels.

How does this apply to Scott Walker and the John Doe?

Well, I don't know since there is not a hint that Scott Walker has done anything that could conceivably be the basis for an allegation of wrongdoing. If there ever is, we'll see. I'm just setting forth some general ideas now.

Friday, February 17, 2012

A Point of Personal Privilege

A couple of Madison media outlets have reported on an e-mail that Jim Troupis sent to some of his clients regarding my testimony before a legislative committee. The e-mail says that I had agreed to testify "in support of" the plan but that I needed to see the maps and some other data. Certain commenters here have suggested that I must have agreed to support the plan before I knew what was in the plan. Sort of like Nancy Pelosi.

Why anyone cares about my testimony is beyond me, but, since it's out there, I'll respond.

The implication is that I somehow promised to say that the plan would not be vulnerable to legal challenge no matter what. There's not a shred of evidence of that and it's untrue. Here's why.

First, such an accusation places a lot of a freight on one little e-mail. Of course, Jim Troupis was going to ask people to support his client's position. That's what lawyers do. His e-mail was intended to request the additional information that I needed in order to form an opinion and testify. It wasn't intended as a thorough exegesis of my position (which he didn't really know) or to reflect a guarantee that I'd support the legality of plan no matter what. Jim was saying what any lawyer who gets someone to testify says. "This guy is willing to support us but he needs to see what we did." It is implicit that, if what "we did" does not warrant support, support won't be forthcoming.
Of course, I expected that Jim would draw a legally sound plan. He's one of the best redistricting lawyers in the country. But I wouldn't have hesitated to say there was problem if I saw one.
Second, if the issue is what I agreed to do, then one ought to look at what I said. The e-mails that I sent or received were produced earlier in the litigation and are a matter of public record.

On June 29, Jim e-mailed me and said that the maps had been completed and met certain criteria -"substantially equal population, compact/contiguous and sensitivity to minority interests.". He asked if I would be willing to testify to that effect and offered to get me whatever I needed to look at. Just what I had or hadn't seen at that time, I don't know. I don't recall when the maps became publicly available.
I responded the next day. Referring to his "criteria," I told him that "[i}t's not hard to bless it on the first two with respect to federal review." That is because the districts would certainly be substantially equal in population (and they were) and there is, strictly speaking, no judicially enforceable constitutional requirement of contiguity and compactness (although they may be considered in connection with the evaluation of other claims).

In my view, challenges to maps as a partisan gerrymander are, under a proper reading of the law, practically impossible. I said nothing about state constitutional review (which could be a different matter although it won't be an issue in the upcoming federal litigation) and did not say anything about "sensitivity to minority interests" at that time.

I asked for more information. I received it. I went ahead with my testimony.

Third, the views that I expressed before the committee regarding the difficulty of ever challenging a district as a partisan gerrymander are not new and were not contingent on who wrote the plan.
Here's how you can be sure.
I said the same thing on Marquette's faculty blog in February of 2010 and in the Journal Sentinel in October of 2010 - back when the Democrats had the Governor's chair and both houses of the legislature and before we knew which party would be in control when the maps were drawn. My point was that, if one party sweeps the election, the legislature is pretty much going to be able to draw the map it wants.

Maybe I'm wrong. But I am consistent.

Fourth, in case you're wondering, I was not paid for this. I received nothing. No compenation. No mileage. No parking. Nothing.

As an aside, one aspect of the e-mails released yesterday is interesting. They reveal that, notwithstanding Peter Earle's histrionics, the Republicans were in active negotiations with representatives of the Hispanic community regarding the creation of majority Hispanic districts.

That the maps were shared with Scott Jensen a few days before they were made public is not interesting. There is no prohibition against showing people drafts of legislation that have not yet been introduced and it's not at all surprising that legislators would try to line up support. It happens all the time.
Finally, I'm closing comments on this. I understand that there all sorts of (generally anonymous) people in the blogosphere who seem to fill some psychic need by flaming people who disagree with them. They can do it elsewhere.

Thursday, February 16, 2012

The Westminster Dog Show and the United Nations

OK, stay with me here. One of the things that  I believe is illustrated by the UN is the difficulty of having a funtioning polity without a critical mass of commonly held assumptions about the nature of human beings and their relationship to the state and to each other.This is, I think, one of the principle arguments against the International Criminal Court and other more ambitious manifestations of supranationalism.

We saw what this lack of common understanding can lead to this week at Madison Square Garden.

The "Best in Show" award could have gone to this magnificent animal.

Or this one.

This dog could have won.

This one should have won.

But the winner was ..... this thing.

I'm sorry. But if you even think that's a dog, we can't live in the same country.

Tuesday, February 14, 2012

If you clear it, will they come?

In last Sunday's paper, the Journal Sentinel editorial board says that "the best argument" for investing $35 million to clean up the (almost) "post-apocalyptic" Tower automotive site is that the private sector won't do it.

With all respect, that's not any type of argument for doing it. If the private sector would do it, there would be no need to even think about using tax dollars.  It is, at best, a necessary condition for consideration of the city's plan, but it's hardly sufficient.

Here is what is missing.

Why won't the private sector do it?

After all, $ 35 million is hardly beyond the capacity of private financiers. Ironically, the editorial board hits the nail on the head when it admits that it would "like to have a better idea of how this development fits into a comprehensive economic development strategy for Milwaukee" and that it remains to be seen " how to persuade businesses that returning to Milwaukee's central city is a good move."

This is a little like saying that my budget for next year is complete. Now I just have to figure out how to get some money.

Of course, neither the paper nor the city want to say that there is nothing that can be done to re-vitalize a huge expanse of land that looks like the set for "Escape from New York." Certainly, we can - we must - do something that can help. But wishing it were so does not make it so.  It's not as if there are no reasons to think that the area might not be an appropriate site for economic development, but the City's current plan passes a distressing resemblance to an episode of South Park.

Of course, I'm having fun and it may be that the project turns out to be the right thing. In fact, I sincerely hope it does. There may well be circumstances in which private money turns out to be necessary to unlock development and, while I think those circumstances are wildly overstated both by public officials and developers hankering for taxpayer largesse, it is possible that this is one of them.

But what planners hope will turn out to be another Menomonee Valley could end up as a second Park East corridor.

Would it be better to wait until there are some committed users for the site rather than clearing it on spec. the result may be a long, slow process of attracting small and marginal users. Perhaps that's the best use of the money. But shouldn't that possibility - perhaps even that likelihood - be acknowledged?

Same as it ever was?

There is some interesting stuff in the Winter 2012 issue of National Affairs. One of the President's re-election gambits is to tell a story about an America that once was in which middle class people have far more than they do. It is sometimes buttressed by selective uses of statistics but mostly simply asserted.

I find it a curious claim because I was, of course, present in that distance past and, as far as I can tell, teachers, cops, firefighters, nurses and other so called "mid level" workers don't seem to enjoy a lower standards of living that we did back then. In fact, their homes are bigger, their cars are better (and they generally have two; we never did), and the houses are full of lots of gadgets that we never could have dreamed of. It does seem to be true that there is a greater need to learn a skill - you can't do as well by low skill work at a factory - but people seem to be acquiring those skills. To be sure, the recent economic downturn was bad but it would be a mistake to suggest that it characterizes the recent past or that it was different in kind from post-Great Depression downturns. By some measures, it was the worst but not by such a margin to suggest some fundamental change in the nature of the economy. Indeed, it's worst aspect may prove to be the boom and bust in housing prices which have proven to be devastating to those who either bought or leveraged at the wrong time.

Scott Winship of the Brookings Institute looks at the numbers. He finds that average Americans today do not face a materially greater risk of income reduction, unemployment, loss of health insurance or retirement insecurity than they did in the past. To be sure, there are ways in which the economy has changed for the worse (and for the better) but the dire tale told by the President turns out to be wrong.

In the same issue, Ryan Messmore looks at the issue of income inequality finding that inequality among income quintiles is less than commonly supposed (when one takes into account things such as all sources of income and the size of households) and cites the work of Cornell University economists who have found that the rise in income inequality has actually been slower over the past twenty years than in the twenty year period before that.

I don't claim that these two articles end the debate but they track a lot of other stuff that I read and are worth taking a look at.

This may be why we see so much emphasis on "the 1%) (of which, in case you were wondering, I am not a member). They have done much better over the recent past although their share on the national income dropped precipitously from 2007 to 2009 without making anyone else noticeably better off.

This is something of a parlor trick.  As well as those fortunate few have done, we can't expect to close the deficit or make anyone else materially better off by taking their stuff. Perhaps we should let the Bush tax cuts expire for people over a certain limit, end the capital gains treatment for carried interest for a handful of hedge fund managers or impose an alternative minimum tax (now that has a great history!) on people who report too much tax advantaged income.

But it will hardly make the world anew or even be much reason to prefer Barack Obama over Romney or Santorum.

Friday, February 10, 2012

A few words on redistricting

Earlier this week, I finished discussing redistricting with my students in Election Law. There are, I think, overarching observations to be made regarding the ongoing redistricting litigation in Wisconsin.

There is almost no chance for a successful challenges to the plan as a "partisan gerrymander." This is not because the plan doesn't favor Republicans. It does and, if the Democrats had controlled both houses and the state house, they would have written a plan to favor their candidates.

The reason the challenge can't succeed is that such claims are effectively "nonjusticiable," i.e., the courts won't hear them. Put briefly, in  a 1986 case called Davis v. Bandemer, six justices held that claims of a partisan gerrymanded were justiciable. The plurality opinion (which, as a practical matter, established the standard for such claims) placed the bar at almost Olympian heights. Proving that the majority political party intended to benefit itself would not be enough. The constitution, according to the plurality, did not require that a map be "proportional" and the mere fact that a a plan makes it more difficult for one party to win seats would not render it constitutionally infirm.

To the contrary, a plan would be subject to successful constitutional challenge only if it would "consistently degrade a voter's or group of voters' influence on the political process as a whole."  The discrimination against a challenged group would have to be substantial and the plaintiff would have to produce evidence of "continued frustration of the will of a majority of voters or effective denial to a minority of voters of a fair chance to influence the political process."

Not surprisingly, plaintiffs had little success under Davis. In 2004, in a case called Vieth v. Jubelirer, four justices voted to abandon Davis and declare these claims nonjusticiable. In so doing, they noted that claims brought under Davis "almost invariablty failed." A fifth, Anthony Kennedy, would not go that far but he agreed that there was currently "no agreed upon model of fair and efficient representation" and, therefore, there was "no basis to define clear, clear, manageable and politically neutral standards for measuring the particular burden a given partisan classification imposes on representational rights." But although he could not currently imagine a judicially manageable standard for assessing such claims, he was unwilling to conclude that someone might not develop one in the future. So, although he joined in the majority in rejecting the claim before the Court, he left the abandonment of Davis to another day.

So the current state of the law is that a majority of the Supreme Court either regards these claims to be nonjusticiable or cannot conceive of a standard by which they can be adjudicated. Even under  the older case law, the standard employed was such that the plaintiffs almost never won. Some scholars have concluded - and I agree - that this renders partisan gerrymandering claims "effectively dead." Rick Hasen, one of the leading election law experts in the country (whose text I use even though I frequently disagree with him) writes that plaintiffs will not "and should not win partisan gerrymandering claims until a consensus forms around a standard by which they can be evaluated.

So one does not have to engage in extensive analysis of the new plan to know that claims that it unfairly treats Democrats and benefits Republicans are going no where. It doesn't matter if that's what the Republican majority was trying to do. That claim is effectively dead as a matter of law.

Lest the commenters misunderstand, this is not an argument that partisan gerrymanders are "OK." It is a recognition of the fact that you can't effectively challenge them in court. The remedy for those who want to redistrict in some other way is political.

The plaintiffs in one of the current lawsuits, Baldus v. Brennan alleges that the plan has departed more than it has to from the prior map, causes "too many" people to have to wait six years to vote for Senator (an inevitable part of redistricting) and creates districts which, in the plaintiffs view are insufficiently compact and contiguous or consonant with "communities of interest."
But the US Consitution does not require maximal adherance to a prior map or districts that are contiguous and compact. (The Wisconsin Consitution might but the plaintiffs will be unable to  advance state constitutional theories in federal court.)
Nor do plans get invalidated because they split "communities of interest" which are, in any event, multiple and pluriform. The principal example advanced by plan opponents illustrates this. The new plan splits the counties of Racine and Kenosha by combining the cities of Racine and Kenosha. You can argue that this splits a community of interest, i.e., residence in the same county. But you can also argue that it respects one, i.e., residence in proximate urban areas.
There is, in addition, no rule that the number of people who must wait six years to vote for a state senator be minimized. Courts recognize that this is an inevitable consequence of redistricting and a requirement that the number be minimized would require abandoning other legitimate redistricting principles.

In other words, the lawsuit alleges a number of things that, even if true, do not form a basis for invalidation of the plan.

There is more room for a successful challenge under the Voting Rights Act but these challenges, even if successful (and they don't seem strong), are likely to affect the map only at the margins. To be sure, changing one part of a map is like pushing in on a balloon but, given the nature of Voting Rights claims and the concentration of minority populations, a successful challenge is not going to make the map materially more favorable to Republicans.

Whether or not the Republicans violated the Open Meetings law is another question entirely and one that I haven't looked at closely enough to have an opinion on. Maybe later.

Wednesday, February 08, 2012

How many recall signatures?

I don't know that the 15% invalidation rate reported by the Journal Sentinel is the right one.  I do think that it is very unlikely that recall challengers will invalidate enough signatures to avert a recall. I don't recall talking to many politicos who harbored much doubt that public employee unions could gather enough signatures to force a recall.

The paper's method of selecting petitions, developed in consultation with MULS Visting Prof Charles Franklin, seems reasonable and my understanding is that the margin of error is plus or minus 4.5%  That margin might be larger if the rate of invalid (or unverifiable) signatures is not evenly distributed among circulators - as it might not be if invalidity is substantially impacted by intentional misconduct. If there were a small number of circulators who turned in a disproportionately large number of invalid signatures, that might affect one's confidence in the estimated strike rate. But, again, my understanding is that the more petitions are spread among a large number of circulators, the less likely this is to be a problem since all circulators had a chance of being included in the random sample in proportion to the amount of signatures that they turned in.

In addition, the actual rate of invalidity may differ depending on the method of verification. If, for example, the Verify the Petition people use a more exacting verification process, they might produce a higher rate of invalid signatures.

So I don't think there are a million valid signatures but I am pretty sure that there are more than 540000. There is, nevertheless, value in vetting the petitions. The public has an interest in knowing whether there are really a million signatures and, if some circulators or signatories broke the law, that fact is significant even if the number of signatures exceeds the minimum.

Tuesday, February 07, 2012

A Tale of Two Decisions

Last week, a panel of the Court of Appeals vacated Judge Davis' order directing the GAB to undertake certain activities in connection with the Walker recall petitions. The decision does not reflect a determination that Davis was wrong on the merits*, but only that he should have let recall proponents intervene in the case before deciding. Presumably what he must do now is permit them to participate and then decide again.

Here's one for you. While I think Judge Davis was clearly right, I think that the Court of Appeals has a point on the intervention issue. It's not a point that is often recognized. In fact, what the Court of Appeals did can be criticized as inconsistent with a line of appellate decisions that do not require   intervention to parties that are essentially taking the same position as the government. In other words, these cases say that, while the trial court has discretion to permit intervention, it generally need not do so when the parties seeking to intervene will take the same position as the Attorney General - in this case, that the GAB need not take the steps that the plaintiff Friends of Scott Walker argued that it must take.

The Court of Appeals tried to distinguish these cases but its altogether  persuasive. Still I think the Court had a point. In cases of substantial public interest, those who are most immediately affected by a case (as the recall proponents undoubtedly were), justice may be served by letting those parties in along side those whose defense of a position is only officially required. If the Court means to signal a more favorable stance on intervention), then it is to be welcome. Broader public participation in these cases is a good thing.

Of course, in court cases, even if intervention is not permitted, participation as amicus curiae generally is.

Then there is the GAB's announcement that it will not consider submissions by persons other than recall proponents and the office holders subject to recall.

The idea that it may not do so (a position reported by the media) is fairly weak. Nothing in the statute governing recall (Wis. Stat. sec. 9.10) limits participation in the process to the filers of the petition and the targeted office holder. The closest the statute comes is in language authorizing (or, perhaps, requiring) the targeted office holder to file a challenge within ten days. But there is no language making this exclusive or superimposing a "system" or "process" that has no place for the broader public.

A better question, it seems to me, is whether the GAB must allow such participation. Does the public at large have a legally cognizable interest in a recall election going forward only if the requirements for a recall are met? Even if it does not (and although there is certainly some interest in not having a recall free for all), is it right - as a matter of policy - for the GAB to allow absolutely no participation on the part of the larger public?

To be clear, I do not think that GAB should "partner" with independent organizations. That would be wrong. But the merits of a decision to announce - a priori - that the board will not to listen to such groups (which is what we have here) is not self evident and certainly not articulated in Kevin Kennedy's memo to the board.

There is a certain - albeit not precise - congruity between permitting interventions in law suits and allowing public participation here. In one case, we have a decision in favor of broader public input. In another case, we see that participation rejected.

Monday, February 06, 2012

The Penultimate Word (for now)

Lots of comments in response to Friday afternoon's post asking two well known political bloggers who are swooning and speculating over the John Doe proceeding if they had ever engaged in political activity while employed by the government.

I have yet to hear from my old Backstory colleague Jim Rowen but Bill Christofferson says he never did campaign work on government time. I take him at this word.

But he subtly shifted the question. I used the word "political activity" intentionally. In a prior post, I asked about a series of things that an elected official or staffer might do on state time using state resources. The point was to make obvious that there are all sorts of things that are heavily political and inextricably bound up with campaigns that these people almost certainly do from their government offices. Bill does not - and I suspect could not - deny engaging in some of them. He would have been a poor staffer if he could.

As I posted, the point is not that we can't specify a subset of these activities that we can call "campaign work" and prohibit it. It is only 1) that there are going to be many cases where the line between work that is "political" but not "campaign" will be hard to draw and 2) that drawing this line will not accomplish nearly as much as we think it will in removing "politics" from government offices or reducing the advantages to incumbents of having publicly paid staff.

These observations have two implications.

The first is that the law needs to be quite specific in setting forth what is and is not permitted. Failure to do so not only raises around due process, fairness and notice concerns, it also maximizes the discretion of partisan prosecutors who, even if they are pure of heart and say their prayers at night, are subject to partisan pressures and confirmation bias. In the cases of Rindfleisch and Wink, the allegations do involve a specific statutory prohibition (although one that seems to call for misdemeanor and not felony charges). Charging other types of activities may be more problematic. If you don't believe me, consider the fact that the participating justices in Chvala split evenly on whether the statute being used in the Rindfleisch case could be applied to the "campaign activity" at issue there.

Second, the relatively limited advantages to be gained ought to affect what is charged and at what level. It ought to inform how we discuss these matters. The heavy breathing, references to "dirty work," etc., don't match what we know. For example, the comments here seem to presume that there are allegations of people who did nothing but - or little more than - campaign work on county time. But that is not an element of the crimes that Rindfleisch and Wink are charged with.

What we have seen so far from the John Doe is small ball. Yes, yes, yes, that may change although one does wonder what, if not politics, causes it to dribble out. But, at least so far, every time we are promised more, it doesn't really come.

Finally, considering what really goes on may help us understand cell phones and laptops. More to come.

Friday, February 03, 2012

Just wondering ...

It is my recollection that certain bloggers who are rather free with speculation and adjectival fury about the Governor and those who worked for him  had stints in the government (e.g., Bill Christofferson and Jim Rowen)

So in light of this morning's post ...

I wonder if Bill and Jim would be willing to declare under oath that they never did anything that might be considered political work during normal business hours or in government offices. Can they say that they never used government phones, computers, stationary or (you now, these guys are a little older) mimeograph machines and carbon paper for political stuff?

Inquiring minds want to know.

Of politicians behaving politicially

I want to write about the issues that might be presented by having laptops and cell phones and wi fi in government offices. But before we do, we need to consider what might be considered political activity and the difficulties in extracting it from government work for certain types of government employees, i.e., political appointees at relatively high levels.

The point has made been made in the comments to an earlier post by George Mitchell. George's views can't be easily dismissed. He has been a significant player, serving as a journalist, high level aide and (with his wife Susan) a wildly successful advocate for school choice in Wisconsin. He knows what he's talking about. He also whips up a nice tailgate.

But let's use some hypotheticals.

Let's say that you are Senator Huffanpuff, a Democrat who opposes Governor Walker's proposed collective bargaining reform. You begin to receive and send e-mails about fleeing the state in order to defeat the quorum required to pass the fiscal provisions of the proposed legislation.

Political? On the one hand, you could say that you are attempting to defeat legislation. On the the other hand, it may be hard to argue that not doing your job is conducting government business. But let's assume, we are on the nonpolitical side of the line.

Now you begin to communicate with people about raising money to support your departure from the state. Political? You start to discuss, in e-mails, over the phone and in your office, how to frame messages about fleeing from the state. This discussion focuses not only on the merits of the proposed legislation but about criticisms of the Governor in general as overly pro-business, anti-union, yadda, yadda. It turns to how you are going to defend not coming to work. Political?

As you discuss these topics, the conversation turns to how you can convince other Democrats to join you. Before too long, the conversation turns to how some of your colleagues may be reluctant to do so because it will harm them politically and how you and others can help them to avoid that harm or to place countervailing political pressure on them, say, encourage a primary challenge or withdraw union support from those who refuse to flee. How do we let our wavering colleagues know what will happen if they choose to stay? Let's say you begin to reach out to people who can bring this pressure to bear. Political?

As you formulate a message, you begin to communicate with others about how to get that message out. You talk about consultants and funding to run issue ads attacking both the legislation and the Governor generally. Political?

You wonder about how you can place pressure on the Governor or, more realistically, wavering Republicans. Can their seats be targeted? Is recall a possibility? How can these threats be communicated to their intended targets. If everything before us was OK, have we now passed into political territory?

But let's keep going. Your sojourn at the Rockford Best Western doesn't work and collective bargaining reform is passed. It turns out that you are subject to recall. You start to work on position papers, speeches and ads that defend your actions explaining why you thought that the reform bill should not pass and criticizing Governor Walker and the Republicans? Are we political yet?

At the same time, you begin to work on selecting Republicans to be targeted for recall and recruiting candidates to run against them. We must be political now but what if this is done with an eye toward advancing the legislative agenda? The Court of Appeals in Chvala rejected that as a rationale for doing otherwise political work on the state dime -  but is that clearly the right outcome?

Keep in mind that many of these topics are often likely to be interwoven into the same conversation

The point is not that there is no line over which activity becomes clearly political. As I said, campaign fundraising would seem to be on one side of the line. There could be others, perhaps candidate recruitment or campaign scheduling, etc. It may be OK to post a self serving message on Senator Huffanpuff's "official" site but not to post the same message on his campaign site.

But that there are many things that are not clearly on one side and the other. Additionally, even activity that might be clearly political is interwoven with policy and legislative activity and activity on both sides of the line is often interconnected. Many things can be said to have both political and legislative or policy implications.

It is easy enough to say that there should never ever be political cooties in a public office but not so easy - and maybe both inefficient and undesirable - to keep them out in the real world.

Even where the line is clear, the things on one side of the line may not be sufficiently different from those on the other side to warrant the conclusion that crossing it threatens the Republic. How much better is the world if Senator Huffanpuff can plan and execute messages and activities with political ends in mind, but just can't engage in formal campaign activities?

I can certainly think of reasons to maintain that line but I don't know that doing so is a major bulwark against corruption or distortion of the political process. This is why I argue that a felony for Rindfleisch - even for something that she is accused of doing before - seems like overkill. This is why, I think, "everyone does it." The law always struggles when it attempts to prohibit things that people both have strong incentives to do and don't believe to be intrinsically wrong.

The matter is further complicated by the fact that we allow these state employees to be involved in their bosses campaign. For key staffers who are essentially always on call, the idea that they stop doing part of what they see as their job between 9 and 5 may seem a quaint and formal restriction.

In fact for certain activity, it may not seem like something that the law requires. More on that to follow.