Friday, June 20, 2014
Yesterday afternoon I returned to Milwaukee and as soon as I hit the ground noted e-mails about a Journal Sentinel story saying that prosecutors had alleged that Scott Walker was at the center of a criminal scheme.
Nothing. All we had was the release of old documents including a brief in which prosecutors tried to defend their investigation. They were not, strictly speaking, alleging anything but saying that they had reason to believe that conduct had occurred that might be a crime and that justified an unprecedented raid on a host of conservative groups.
But maybe that's just semantics. The larger problem is that two judges have said that the "criminal scheme" that the prosecutors think may have occurred is no crime at all. A very recent decision of the Seventh Circuit - while not directly addressing the question - seems to me to suggest that they were right. As George Mitchell says, to announce the prosecutors' plan to get Scott Walker has now been "unsealed" and alleges a criminal scheme is a bit like announcing that we have unsealed Dom Capers great plan to contain Colin Kaepernick - after Kaepernick has run right through that plan three times.
It is,of course, possible that Judges Randa and Peterson will turn out to be wrong and that my reading of the Seventh Circuit's recent decision won't go as far as I think it may, but - for right now - it doesn't seem all that likely that any prosecutors will ever actually be alleging any criminal scheme.
This is incredibly complex stuff resting on concepts like "express" and "issue advocacy," "political purpose" and "coordination" that have a technical purpose and, at least at various points in time, an indefinite meaning. We can debate what those ought to mean. But the real abuse here may have been to take a real difference of opinion here about where the lines are regarding the financing of political speech and criminalizing it.
I get that knowing violations of the campaign finance laws are crimes but, when we are talking about constitutionally protected activity, very clear restrictions are absolutely essential. For example, the e-mail from Scott Walker to Karl Rove could not have reflected coordination between candidate Walker and the independent groups. It was written in 2011 and referred to Senate recalls, not any race in which Walker was a candiate. The argument that Walker wanted these candidates to win so that what helped them could be considered a contribution to him is truly unprecedented.
How you feel about that should not turn on whether you like Scott Walker or not. What the Democrats - and this was started by Democrats - tried to do to Walker could just as easily be done by a Republican DA to a Democratic elected official. Politics ain't bean bag, to be sure, but it also shouldn't be waged by armed people in windbreakers.
Cross posted at Purple Wisconsin
Monday, June 16, 2014
Yesterday's Journal Sentinel had a profile on Chris Ahmuty of the ACLU. Have only met him once; seemed like a nice guy. I don't always disagree with the ACLU. i think that they have a left wing view of civil rights that tends to privilege equality over liberty. I sometimes refer to WILL as the anti-ACLU, but that's not quite right, We agree on a variety of, in particular, First and Fourth Amendment issues.
In any event, some of the comments complained about the Journal Sentinel doing a "puff piece" on a liberal. The paper would never do that for a conservative.
It would be less than gracious for me not to point out that it has done at least one - of me. I think that's what Bill Glauber does; he tries to present people on their own terms. You can call these puff pieces but I think there's some value in that. It probably does conservatives good to see that, say, Chris Ahmuty is not a monster. It's good for liberals to see that I'm not either. (At least not all the time.)
In another article, liberal lawyer Lester Pines said that attorney general candidates who said that they would not defend laws that they thought were unconstitutional were wrong. An attorney general should decline to defend state law only if he or she thinks that the argument in favor of a law's constitutionality is frivolous.
I have debated Lester on a number of things and been on opposite sides of litigation a few times. I like him. I disagree with him a lot. Here - he's right.
Let's use an example to illustrate the difference. Say the state passed a law that eliminated the privilege against self incrimination or that allowed local district attorneys to bring actions to prohibit or punish "offensive" speech. No reasonable lawyer could conclude that these laws might be constitutional. An attorney general should not defend them.
But states rarely pass such laws. People should understand that an AG is not free to pick and choose which laws she'll defend. She will, from time to time, have to defend laws that she disagrees with.
In fact, refusing to defend a law can create unanticipated problems. Say you are in favor of extending civil marriage to same sex couples. You believe that the refusal to do so is unconstitutional. Don't you wish that the United Supreme Court had resolved that issue?
It might have resolved it a year ago in the challenge to California's ban of same sex marriage, but it could not. It could not because the California attorney general and Governor would not defend and the Court did not believe that anyone else had standing to do so. I think the latter decision was wrong but it is quite possible that the issue could have been resolved a year ago - perhaps in favor of same sex marriage - had the elected officials of California done their job.
Cross posted at Purple Wisconsin
Thursday, June 12, 2014
We can argue about whether the evidence of improvement is robust or whether the improvement that was found is "enough," but to say that there is "no evidence" is wrong.
One of last week's Politifacts tests the Paul Ryan's claim that Medicare is going broke and that its trust fund will run out in nine years.
The verdict: Mostly false.
The truth: He's right.
Let me explain. Of course, Ryan was not saying that the trust fund would file for bankruptcy protection. It could not so so. He's using the term in its general rather legal term.
A common definition of bankruptcy equates it with insolvency, i.e., a person is "bankrupt" when he or she will be unable to pay his or her debts as they come due. Note that this does not mean that a "bankrupt' person is "penniless" or unable to pay some of her debts.
Medicare is an entitlement program. Congress doesn't appropriate a limited amount for it to spend; it mandates that certain benefits be paid out. Thus, Medicare is obligated to provide specified benefits to eligible persons - no matter what the aggregate cost.
It is undisputed that, under current projections, the amount of revenue currently generated by Medicare taxes and premiums and held in trust for the program (actually nothing is really held in trust but that's another matter) will eventually be insufficient to meet the current legal obligations - the "debts" if you will - of Medicare in 2026.
In other words, Medicare will be unable to pay its bills as they come due. It will be "insolvent." It will, by a common dictionary definition, be bankrupt.
So how does Politifact get around this?
The first move is to say that current law provides for automatic transfers from general - non-Medicare - revenue to cover the program's part B obligations. I still think it's fair to say that Medicare Part B itself will become bankrupt and therefore will need a bailout. That the bailout is already written into the law is certainly a pertinent fact, but it does not change that.
But even that argument does not work for Medicare Part A. There is no automatic bailout there, so what does Politifact say?
First, it points out that - at least initially - Medicare will still be able to pay most of its bills. (As time goes on, the percentage that it will be able to cover will become less and less). But that doesn't mean that the program is not insolvent and, in common parlance, bankrupt. The YMCA just went into bankruptcy. It could pay most of its bills.
Second, it argues that Congress will certainly do something - either reduce coverage or increase taxes - so the program will continue. As a matter of political prediction, this is probably so. (As someone who will be eligible for Medicare in 2026, I certainly hope it is.)
But to say that someone or something that is going bankrupt - becoming insolvent - is likely to be bailed out either by an infusion of revenue or a reduction in obligations does not change the fact that that they are going bankrupt and will require such an intervention. Indeed, the whole point of Ryan's comment was to illustrate that just such an intervention is required, i.e., that something must be done.
Politifact is wrong, in any event, to assume that Congress will "certainly" reduce spending. In fact, Ryan proposed that. He got accused of wanting to roll Grandma off the cliff. Remember, guys?
At worst, Ryan has made a true statement that should be tempered by the recognition that we can fix the problem. It is, of course, silly to criticize him for that since he's been banging on about "fixing" the problem for his entire career. In other words, he has repeatedly recognized both the problem and the need for a fix.
Politifact Wisconsin takes cover in the fact that two other fact checkers have engaged in the same manuevers. In general, I have thought that the local Politifact writers have been better than the national crowd although it is incompletely inconsistent in its use of the silly Truth-O-Meter emoticon.
But this one is itself a whopper.
Wednesday, June 11, 2014
Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).
The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.
In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.
But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.
To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.
So if you have to answer the big questions first. You have to decide what marriage is for.
On the one hand: Is marriage a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?
On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?
These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.
But I still don't believe that judges are in a position to resolve these questions. We have to do it.
Saturday, June 07, 2014
There's a fellow named Bill Penzey. He owns a spice business and is apparently given to putting his political opinions in cloying newsletters that he calls a "Note from Bill. A recent "Note" got a bit of attention because it seemed to attack most of the people in Waukesha County.
Penzey thinks that Waukesha's growth was fueled on racism - on "white flight" from "diversity" - and that this its current political preferences are a product of this. He suggests that the dominant view in Waukesha somehow represents a "different attitude" that is divorced from its historic commitment to abolitionism - as if there was some continuity between abolitionists and modern day liberals (who often have no problem with treating people based on the color of their skin).
Alex Runner - who hates him some Waukesha - wants to go to bat for this guy. He can't stand the fact that Purple Wisconsin blogger Ashley Schultz let Penzey have it.*
That surprises me. I would think that anyone who wants to start a thoughtful and unencumbered dialogue about the relationship with between the city and the suburbs would see Penzey's "Note" as a sophomoric equivalent of "go east of 124th Street and you'll die" view that I think is too prevalent on the other side of the debate.
But apparently I'm wrong, so let's review what's wrong with the Note from Bill.
Penzey begins by invoking a Milwaukee that never existed. He says that Milwaukee's government was "progressive" in the '50s and decided to" let diversity in." While it is true that there was a large influx of African Americans in the immediate post war period, it is hardly the case that Milwaukee's then-socialist government "embraced" them.
The new arrivals were restricted to the near North side. Now I think that there are lots of reasons to expect new arrivals to cluster - and over time - to stay together, but my friends on the left don't agree. For them, it is worth noting that this "progressive" city government never enacted a fair housing ordinance. That did not happen until 1968 - eight years after they left power. If someone "let diversity in," it wasn't Milwaukee's "progressive" socialists. (Nor did the socialists lay the groundwork for the "rediscovery" of Milwaukee sixty years later, but that's another topic.)
Penzey then goes on to suggest that people left Milwaukee because they did not like this "change" to greater diversity. Surely they would have stayed in their aging bungalows and duplexes and resisted the temptation of green space and newer homes if not for the presence of black people miles away from where most of them lived. No, these people who headed for Waukesha were "not ready" for Milwaukee's enlightenment and, sadly, most (but not all) of their children and grandchildren still aren't.
In response, Ms. Schultz suggested that maybe some of them really did want larger yards and a bit more quiet. Perhaps they wanted good schools and less crime.
Alex Runner is having none of that. He writes:
Schultz admits that her parents partook in the flight from Milwaukee, saying that they simply wanted some "quiet" and "more land." In other words, it was just a coincidence that all the white people realized their yards were too small at the exact same time minorities started moving in. Amazing!
It's not amazing at all. We shouldn't be surprised that the post war period saw folks moving out of the city without regard to race. Your average American family couldn't have dreamed of a three to four bedroom house on a half to one acre plot of land in an area with good schools and little crime in 1945. Since then, there has been a substantial increase in household wealth with more families owning cars and larger houses. Expressways made it easier to move around the country than it was before. (I know, I know. Mobility is bad.)
In fact, the city had to use residency requirements to prohibit its own employees from decamping. Oh, this desire is ticky tacky, I know, but given a choice, many people - even many minorities - prefer a home of their own with lots of green around it. They want these things, moreover, without regard to the color of the person living next door. Indeed, when I was growing up at 70th and Forest Home, the saying was that Franklin was where you moved when your Dad made foreman.
Nor can the express desire to escape the "problems" of the city be reduced to concerns about race. I know lots of people who wanted to live in the city. They were on board with diversity and wanted to be urban pioneers. But, in the end, they simply couldn't abide crime and poor schools. They weren't willing to sacrifice their families for their politics. They each became the fabled liberal who has been mugged.
This is not to say that no right thinking person would ever want to stay in Milwaukee. It has many charms. But you don't have to be a racist to prefer the suburbs. (Indeed, it'd be interesting to know where Penzey lives. Is it in an area from which the middle class has fled ?)
Penzey then equates this rejection of diversity with a failure to embrace the platform of the Democratic party. In his view, "continued defunding of inner city schools, the congressman's talk of bell curves and lack of effort on the part of those who live in the city, and the legislature's talk of secession" is nothing more than a message that America is only for some and not for others. This, he said, could only be a way to get votes in Waukesha.
Maybe it would be if any of it had ever happened. Inner city schools have not been defunded. In fact, spending has steadily increased over the years. No "congressman" (he means Paul Ryan) spoke of bell curves or even, strictly speaking, lack of effort. Ryan spoke about disconnection from the world of work and the cultural disarray that frustrates policy. So do many black leaders.
Ryan did cite the work of Charles Murray (and liberals like Bill Putnam) in support of his views. Murray did write a misunderstood and misrepresented, albeit flawed, book called The Bell Curve. But Ryan was referring to his more recent work, Coming Apart, that tracks the relationship between cultural decline and poverty in white communities. The Wisconsin legislature hasn't "talked" of secession - other than to belittle the idea.
But even if Penzey had accurately described the world, failure to want to spend even more money on schools that have not improved as they have received more and more money is not be racist. Recognition that things like inner city crime and fatherless kids make it all but impossible for any intervention on the part of the government to succeed is not, as Penzey says, a claim that America exists only for some. It is a difference of opinion on what it will take to make its promise a reality for everyone.
There are more things in heaven and earth than are dreamt of in Bill Penzey's philosophy.
Indeed, Penzey seems to be ripe for the same unthinking criticism he levies at others. I note that his company's stores are all in ... the suburbs !
Has he drawn an iron ring around Milwaukee and refused to bring his coriander across it?
Mr. Penzey, bring your spices to the masses on the other side of the digital divide who cannot order them online. Mr. Penzey, tear down that wall! (I know that Penzey's wants to build a plant in Northridge. But that's a pretty good location for an industrial use given its relative proximity to the same evil expressway that facilitated white flight. Freeways also help fill those online sales of oregano.)
The point is not that Penzey is a closet racist. It is to remind him that perhaps he should extend to others the presumption of good faith that I am sure he expects for himself.
I wouldn't endorse a boycott of Penzey's and its owner has a right to his opinion. But here's the thing.
Bill Penzey chose to insult almost an entire county. That seems uninformed and ungenerous. In its own way, it is a failure to embrace diversity and reflects fear of "the other" - defined here as people that don't share his junior high liberalism. If people don't want to buy his spices, he shouldn't be surprised.
Cooks can change the world in more ways than one.
* Full disclosure: I was recently elected to the board of Ms. Schultz' employer, St. Anthony's School. I believe that I recently met her, but I don't know her.
Friday, June 06, 2014
I have always wondered if I could have done it. To be honest, I have a hard time imagining so. Perhaps it's one of those things that you can't do unless you have to.
Thankfully, I'll never know.
What type of national resolve was required to undertake an operation that was sure to result in thousands of deaths? We still read the names of the victims of 9-11. But we lost that many in one day on the beaches of Normandy. And it was only the beginning of only one part of unbelievably bloody crusade.
Could we do it today? The American military has performed bravely in the Persian Gulf and in Afghanistan, but this was a challenge of a different order. Perhaps it is enough to express gratitude that a new Operation Overlord has not been necessary.
Even as we marvel at what happened seventy years ago, we enjoy the knowledge that it worked; that the sacrifices it required were not in vain. But that was every much in doubt on June 6, 1944 and, had the Germans responded in different ways, we may very well have been pushed back into the sea. Indeed, Eisenhower wrote a note taking responsibility for the failure of the invasion. Just in case. Perhaps he thought he'd be unable to do it had the invasion actually failed.
I doubt that the greatest generation - now almost all gone - was really made of sterner stuff. But, from this distant vantage point, it certainly seems that way.
Cross posted at Purple Wisconsin.
Wednesday, June 04, 2014
Regarding my response to Politifact, let me extend my remarks.
I was interested in the weight that Politifact put on the fact that the increase in reading scores among choice students was in the fourth year when test scores became public. This doesn't strike me as a significant criticism of the results because both MPS and MPCP schools were subject to that requirement.
The idea that the increase in high school graduation rates can be dismissed because some students returned to an MPS school seems even an weaker criticism. Most choice students will not graduate from a private high school because, at least until recently (and still to a significant degree), the voucher amount was inadequate to cover the cost of high school education. Still, the fact that someone was a choice student significantly increased the likelihood that he or she would graduate from high school.
How that can be "no evidence" of improved student learning is beyond me.
I understand that, in attempting to defend their rating, Politifact has cited Patrick Wolf - one of the researchers involved in the Arkansas study (and who remains a passionate advocate for choice) - saying that to say there was no evidence of improvement is "a bit of a stretch." That's passingly odd. Something that is a stretch can hardly be "mostly true."
Again, much of the problem lies in the Truth-O-Meter emoticons which are not applied consistently and probably can't be. As I have written before, the series - at least by local writers - is worth having. I often learn things. The Truth-O-Meter is entertainment and not news. Here it obscured rather than illuminated.
Cross posted at Purple Wisconsin.
Tuesday, June 03, 2014
In other words, the cute little emoticon (an obfuscatory bit of "entertainment" fluff which I desperately wish the paper would get rid of) is pretty much backward.
Neither report attempts to measure whether the improvement of students who move to a choice school compared to comparable children who remain in a public school.
(In fact, at least for PPF, there would be no way to do so with the data available to them.)
We could go on. It is nonsense, for example, to compare the test scores of public and voucher students in Racine in 2014 because the choice program had only just begun in Racine and the voucher students had been in their new schools for only a few weeks.
Some folks argue, moreover, that DPI treats students who have opted out of tests in a way that disfavors voucher schools. There are other issues as well.
I would add that it is meaningless to treat voucher schools as a group since they are not subject to common control and differ dramatically from one another. If, in fact, well-run choice schools improve student performance then it would also be wrong to say that there is “no evidence” the program works.
In fact, a quick look at the 2013 PPF report reveals that a majority of choice schools appear to have matched or exceeded the MPS average for at least one subject during the years in question and that a substantial majority of Lutheran or Catholic schools did so. The 2014 results, while not quite as clear, are comparable. Perhaps certain types of choice schools do improve student learning.
So the numbers that Politifact says give public school students a “clear edge” do no such thing.
And then there’s the University of Arkansas School Choice Demonstration Project study – the only real study of whether the choice program“improved student learning.” The SCDP study found that Choice students were significantly more likely to graduate and go on to college. The study found that voucher students showed a greater increase in reading scores than MPS students. (That this happened in the last year of the study and the first year in which voucher schools had to, like MPS, publicize their scores doesn’t change that.) There were some other advantages for voucher students but there were not statistically significant, i.e., the researchers could not say that they were not a product of chance.
You can dismiss the statistically significant improvements as “too small” although they are at least as robust as the evidence for a variety of educational nostrums that are commonly touted. And these gains are accomplished at a bit over half the cost of a public school education. You can quibble over what caused the measured improvements. But the fact remains that they are “evidence”of improvement that Mary Burke falsely said does not exist.
How Burke’s statement can possibly be called “mostly true”is beyond me. The Politifact author regards the evidence for improvement as "thin." I'm not sure that statistically significant findings of improvement in the only properly designed study that exists can be so readily dismissed. But let's grant him this . Concerns about the extent of improvements or what really caused it are worth discussing.
But she said there was no evidence. That is false. It cannot be mostly true. This Politifact was not fact checking. It was an imposition of opinion.
Monday, June 02, 2014
One of my colleagues raises an interesting question. Can the prosecutors even seek to overturn Judge Peterson's decision quashing the search warrants and subpoenas that were served in the course of the now-halted probe?The lead prosecutor asked for clarification on that. Here is what Judge Randa said in an order issued Friday afternoon:
Sunday, June 01, 2014
Here's the latest. Last week's Journal Sentinel featured the following headline:
$ 10 million complex bolsters Milwaukee's supportive housing
What is "supportive housing?"
Cross posted at Purple Wisconsin.