Saturday, June 29, 2013

What Walker should veto

Tomorrow, Governor Walker will sign the budget. He will veto some things. Here are a few I hope that he strikes.

A few weeks ago, I wrote about the "eviction" of the Wisconsin Center for Investigative Journalism from the UW campus. I suggested that this may have been the kind of thing that happens when you are as uninterested in intellectual diversity as the UW has been. I don't mind that the UW has institutions with a perspective. I do mind that they only have one kind, even if the WCIJ may not be as far to the left as many UW organizations.

Of course, as I noted, it is possible that this was just retaliation by politicians who didn't like a WCIH story and that's completely unworthy of the Governor and his administration.

But from the outset, I criticized a portion of the proposal that says that no UW employee may work with the WCIJ. This, I thought, was a violation of academic freedom.

The good people at the Foundation for Individual Rights in Education agree and have written to the Governor.

Telling academics what they can work on needs to go. What conservatives need to do is attack the censorship of the academy and not try to match it.

The budget has a provision that disqualifies from the state bidding process any company that hasn’t already performed work on a state or local project. Not a good idea. 

I don't have a strong opinion about private bondsmen. (I am tempted to say that I have no dog in that fight.) There is evidence that this type of system - which exists in the overwhelming majority of states - can lead to fewer defendants failing to make court appearances at less cost to the state (albeit at higher costs imposed on defendants who are not found guilty.) My problem is that the advantages don't seem great while the opposition within the system is strong. That adds up to "not worth it" to me.

Finally, while I have nothing against the Kringle, the state pastry ought to be the cream puff or , in light of our strong German heritage, the Pfeffernusse. But Racine is a swing county and I'm a realist. It won't happen.

Cross posted at Purple Wisconsin

Thursday, June 20, 2013

Data on choice schools will be available

I appreciate the difficulty that non-lawyers have in interpreting legal language and the challenges that anyone has in reporting on Wisconsin's chaotic budget process - a chaos that seems to reign no matter who is in power.
It is being reported that the current budget will have a provision that, as the headline puts it, "would limit the release of data on individual voucher schools.' That it highly misleading. The proposal would not limit the release of data on individual schools, but would only affect the timing of its release. It requires that it all data be released at the same time.
The Journal Sentinel's report on the proposal does not link to it or quote it.  Here is the proposed language:
118.60 (11) (d) 1. Except as provided in subd. 2., when the department publicly
releases data related to, but not limited to, enrollment of, standardized test results
for, applications submitted by, waiting lists for, and other information related to
pupils participating in or seeking to participate in the program under this section,
release the data all at the same time, uniformly, and completely.

2. The department may selectively release portions of the information specified
in subd. 1. only to the following:

a. A school district or individual school.

b. An entity requesting the information for a specific participating private
school or the school district within which a pupil participating in the program under
this section resides, provided that the entity is authorized to obtain official data
releases for that school or school district.

Again, the "limitation" is only on the selective release of data. The idea is that all of the data relating to all of the individual schools should be released at the same time. But the date related to each individual choice school will be made publicly available.

Superintendent of Public Instruction Tony Evers complains that this would not be true of publice schools. Perhaps not, but choice schools aren't public schools. They are private schools at which parents can choose to use vouchers. This does not make them public anymore than the corner grocery becomes a public agency because it accepts EBT cards.

The important thing to keep in mind is that test results and other data related to choice schools will be released. The only "limitation"is that DPI must release it at the same time.

Cross posted at Purple Wisconsin

Tuesday, June 11, 2013

A challenge to a certain form of campaign contribution limits

A column yesterday by Dan Bice discusses a lawsuit that I and my colleagues at WILL brought on behalf  of Fred Young challenging Wisconsin's aggregate contribution limits. I think a few more things need to be said on the matter.  Here they are.

The sub head of the column suggests that Mr. Young "wants campaign giving limits abolished." That is not entirely accurate. While proposed legislation raises the maximum that can be contributed to a single candidate, his lawsuit has nothing to do with that. It does not challenge the limitation on contributions to a single candidate or even to seek to have those limits raised.

Instead, it challenges the overall limit on the contributions to all candidates combined - what is generally called the "aggregate limit." (Bice refers to it as a limit on the amount of contributions that can be made "cumulatively" - which strikes me as a broader - and different -  concept, combining temporal with cross-recipient limits.)

This is how it works. In Wisconsin, the maximum limit on a contribution to a candidate for state wide office is $ 10,000. The aggregate limit on contributions to all candidates is also $ 10,000. So, if Mr. Young - or anyone else - makes a perfectly legal campaign contribution of $ 10,000 to a candidate for Governor, he can give no more to anyone else that year - not even a candidate for the school board.

I know of no other state with an aggregate limit that is so stringent in relation to the overall limit. (In fact, most states don't have aggregate limits at all.)

This is why the fact that we are challenging only the aggregate limit is important.

The United States Supreme Court has long made clear that contribution limits burden the rights of free speech and association. This is not, as is often said, an assertion that "money is speech" but a recognition that the First Amendment protects the right of candidates to speak effectively and for persons to band together to promote candidates and causes. These rights require the ability to spend money. The First Amendment would be meaningless if all it protected was the right to stand on the corner and holler at passing cars.

This recognition of the impact of contribution limits on speech and association is not, incidentally, a product of the Court's 2010 opinion in Citizens United. It goes back to the Court's 1974 decision in Buckley v. Valeo.

So it has long been recognized that contribution limits implicate First Amendment rights.  But the Court has also said that they may be subject to reasonable limits for one reason - to reduce the risk of corrupting the recipient, i.e., to prevent an unstated quid pro quo; a promise to take some particular action in exchange for a contribution. The idea is that maybe there is a level of contribution to a candidate that is so high that there is an inherent risk of this form of corruption or its appearance.

But - and here's the important part - the Court has also made clear that this is the only justification for limiting contributions. They may not be restricted to equalize "access" to politicians, to reduce the voice of large donors, to keep "money out of politics" or to level the playing field. This limitation on the contributions restrictions is also not a product of Citizens United. It was first announced in the 1974 Buckley decision and made absolutely clear in a 2007 decision involving Wisconsin Right to Life.

The Court has also made clear that the government cannot limit contributions on the basis that a candidate will "appreciate" contributions to someone else - either other candidates or independent organizations.

This is why aggregate limits cannot stand. The state of Wisconsin has decided that a contribution of as much as $ 10,000 to a candidate for state wide office (and lesser amounts for lesser offices) do not create this risk of corruption. Once that interest is gone, it has no interest in limiting the number of these "non-corrupting" contributions that a candidate may make. In other words, aggregate limits do not serve the only constitutionally permissible justification for limiting a citizen's right to contribute to candidates of his or her choice.

This is why we filed our lawsuit and we are hardly the only ones. A challenge to the federal aggregate limit is currently pending before the United States Supreme Court. (WILL filed an amicus brief in that case.)


Monday, June 10, 2013

More on diversity, UW and the WCIJ

Last week's contretemps over proposed legislation forbidding the Wisconsin Center for Investigative Journalism lead to a disagreement - somewhat overstated as a smack down or cage match - between Charlie Sykes and Mark Belling with the latter being for the proposal and the latter rather strenuously opposed.

My own reaction was to use it as an example of the perils of the UW"s indifference to intellectual diversity. When you set up yourself up - not as a place where all ideas are explored and many views are free to contend - but as a collection of faculty and institutions that are ideologically homogeneous and with a culture that is repressively conformist, this type of payback is what you get. You get it even if , as may be the case here, the target leans only (by UW standards, at least) moderately to the left. You get it even when, as may be the case here, the attack is politically foolhardy.

Of course, I may be ascribing motives to the legislature that it did not have - it being suggested that the whole affair was the product of a single legislator who didn't like a particular story written by the WCIJ.

Belling, as I understand it, suggests that an entity like WCIJ has no place on campus. I don't think that's right. Nor do I agree with suggestions that a group like WCIJ ought to have no ideological or philosophical perspective.

An organization or scholar can have certain preconceptions about the world - how things work and how competing values are to be weighed - and yet do quality work of high integrity. Indeed, if you spend any significant amount of time studying law, politics, economics, etc., you are almost certainly likely to migrate to a particular set of positions. Indeed, not having a stance may be more probative of a lack of qualifications than an assurance of integrity or quality.

In light of that, Sykes may be right in suggesting that going after the WCIJ is unfair and politically tone deaf. My guess, in nay event, is that there is no way this provision will stay in the budget.

But, in discussing this issue, I prefer to acknowledge the elephant in the room. If the UW wants respect for academic freedom and the respect that ought to be accorded an institution that fosters the pursuit and consideration of ideas, then it must deliver the goods. In the social sciences and the law, it has a long way to go.

Cross posted at Purple Wisconsin

Wednesday, June 05, 2013

Did UW pay for a lack of diversity?

The indignation has begun over the legislature's "attack" on the Wisconsin Center for Investigative Journalism. No one should be surprised. The UW - and universities across the country - have no one to blame for this type of thing but themselves.

The Wisconsin Center for Investigative Journalism may do good work, although the example given in news accounts of Wednesday's action - breaking the story of the altercation between Justices Prosser and Gableman - is not an example. That was actually pretty shoddy work. What is hard to deny is that it is funded by left-leaning organizations and has a left-leaning bias - as does almost every part of the UW engaged in policy work.

And that last part may be the problem. There is nothing wrong with a group like the Center for Investigative Journalism having a perspective on the world. There even could be nothing wrong with having a Soros funded organization like the Center (funded operation at a public university - or one funded by the Koch brothers.

But there ought be some balance.  There is no way that the UW would tolerate a conservative counterpart of the Center for Investigative Journalism.  Imagine, for example, the MacIver Institute with offices in Vilas Hall.

You can't.

I don't know why the legislature did what it did. Don't know anything other than what I read in the paper. But when public universities shun intellectual diversity - as the UW has indisputably done - they ought not to be surprised when people decide that it may not be wise to allocate public money to fund one side of the debate.

I understand that the reaction to this will be denial. But anyone who believes that the leftward tilt of universities is the result of unimpeded inquiry doesn't know very much about universities. They are wonderful in many ways but they are among the most conformist institutions in our society.

If this were not so. If the UW occasionally roused itself to promote a diversity of ideas, I'd have more sympathy for the Center. In any event, not being able to occupy Vilas Hall will hardly cause it to shut down. Rent is cheap.

I do have concerns about that part of the proposed legislation that says no one can do work "related to" the Center as part of their employment at the UW. That does strike me as a very broad proscription that is incompatible with academic freedom.

Cross posted at Purple Wisconsin.

Tuesday, June 04, 2013

It's not about WE Energies

One of the things that I have advocated for Purple Wisconsin is that the bloggers engage each other. Quite frankly, the initial group of participants – particularly those on the left – had no interest in that. One, at least (who no longer participates) seemed actively hostile to the idea.
So I’m happy that Alex Runner wants to respond to an earlier post that I wrote on the Milwaukee Streetcar Project. I am always happy to hear from him.
But, unfortunately, he completely misses the point of my post or of the proceedings that I and my colleagues at WILL have brought before the Public Service Commission.
He thinks that I am concerned about WE Energies and don’t understand what a “sweet deal” it has.
Actually, with all due respect, I am not concerned about WE Energies at all.  Those folks are more than able to watch out for themselves.
Oh, and I do appreciate the nature of a regulated utility (you don’t have to “work in city government” to learn that) although I’m not sure Alex does. Because WE Energies is a monopoly, it has certain privileges and advantages that a different kind of business would not have. But it is also subject to certain types of regulation that a different kind of business would not be - including price controls.
So I fully understand that they will probably be able to pass the cost of utility relocations on to ratepayers.
That’s precisely the problem.
Although you wouldn’t know this from reading Alex’ post, the matter that WILL brought before the PSC was not brought on behalf of WE Energies, but  on behalf of the ratepayers who do not want to contribute to the cost of the streetcar. Because they have no place else to go and the utility will, in all likelihood,  be able to pass the cost on to them, ratepayers have the right to challenge municipal ordinances and actions that would impose unreasonable costs on them.
In other words, Alex has it exactly backwards. The reason that there is PSC oversight and we invoked it is not to augment the privileges of a regulated utility but to protect ratepayers from the consequences of those privileges - in this case, the ability to pass on municipally imposed costs that the rate payers have no ability to avoid by, say, going and getting their electricity elsewhere.  
It is certainly true that utilities can be forced to absorb the cost of relocation occasioned by certain public works. The question before the PSC is whether the street car project is the type of project that rate payers can be forced to absorb. Asking the PSC to decide this is not an intervention in “the free market.” There is no “market” involved.  
I am also concerned about good government. WILL has no position on the street car, but I, as a citizen, do. Here it is.
The Milwaukee Streetcar project takes a technology that was abandoned over sixty years ago and proposes to return to it notwithstanding that demographic and economic changes have made it even less feasible that it was in, say, 1948. Streetcars are less efficient and use more energy than just about any other alternative. They clog traffic resulting in both economic losses and environmental harm. This one promises to be among the worst because the route does not connect two points between which a large number of people wish to travel but was chosen to lay the foundation for a larger system that has absolutely no chance of ever being built. (Of course, Milwaukee used to have city-wide streetcar system that was torn out because it clogged traffic and its ridership went into the tank. Now that the city has fewer people and more of them have cars, I’m sure it will do much better.)
Put simply, if the city had to pay for the street car, it would never be built.  I know that. Mayor Barrett knows it and, I think, Alex Runner knows it. A project like this can only happen because of a separation between who makes the decision and who pays the bill.
Alex suggests that we ought to value “local control,” “local government” and “ local taxpayers.” I agree. But you don’t get local autonomy unless you have local responsibility.
Cross posted at Purple Wisconsin