Wednesday, September 17, 2014

Free speech for thee and for me

At Right Wisconsin, I write about the incongruity of letting some people called "the media" who are engaged in "journalism" do whatever they want when it comes to conspiring with and supporting candidates, while those who are not in this privileged position cannot.

My point is not to accuse any particular media outlet of plumping for a candidate, although the Cap Times, in sponsoring a rally for the Democrats, does seem all in on that. It is simply to note that they can. Even if you could prove that a newspaper was in the tank and working hand in hand with a candidate or party to influence an election, you'd have no complaint under the law.


My first point is to ask why this should be. Why should the Journal Sentinel or WTMJ or Fox News or MSNBC be able to establish themselves as partners with a political perspective or candidate, while others - who may have to buy time or curry favor with these outlets -  may not?


My second is to suggest a conclusion. Since we'd all recoil at the notion that the notion that the expressive conduct of the newspapers or television stations can be curtailed (at least I hope we would), then maybe we should be more supportive of the speech rights of those who have to buy into the media's privileged position.






Cross posted at Purple Wisconsin

Tuesday, September 16, 2014

Oh the humanity! A citizen speaks.

Earlier this month, I and my colleagues at WILL filed an amicus brief in the civil rights case brought against the John Doe prosecutors. Our clients were Brad Smith, former Chair of the Federal Elections Commission and one of the country's leading academic experts on campaign finance law. We did not address the abstention and immunity issues that dominated the oral argument in the case last week. Our interest was in the constitutional problems created by the overly expansive interpretation of the law by the John Doe prosecutors.

We said that the First Amendment requires a narrow definition of what can constitute "coordination" between a candidate and an independent group engaged in speech. We argued that this is necessary both with respect to the "conduct" that might be considered coordination (i.e., it can't be fundraising, the use common consultants) and the "content" of speech that can be considered coordinated (i.e, it can't be issue advocacy) The reason, we said, was the the law would otherwise deter persons from exercising their constitutional rights to both speak to elected officials and candidates and to speak to the public. Wisconsin law does not provide an adequately narrow definition and must either be declared unconstitutional or limited to express advocacy, i.e., speech that can be interpreted in no way other than as a call to elect or defeat a candidate.

Perhaps the Seventh Circuit will not address that now, but, some day, either it or the Wisconsin Supreme Court is going to have to.

But the danger of the John Doe prosecutors expansive theory of "coordination" is illustrated in a recent piece by Dan Bice and Bill Glauber.

Here's what happened. Steve Einhorn, a local businessman, philanthropist and political activist, becomes interested in the question of voter fraud.* Rightly or wrongly, he believes that it happens and he wants to do something about it.

But he doesn't know exactly what happens when a person votes illegally so he asks Scott Walker, his County Executive and then a candidate for Governor, what the penalties for voter fraud are. He doesn't tell Walker what use he plans to make of the information and the Walker's response - from his constituent services staff - is factual.

Einhorn then takes the information and uses money from his family foundation to put up billboards reminding the public that voting illegally is a crime - much like billboards and public service ads remind us that shoplifting or drunk driving will get you in a great deal of trouble. The billboards mention no candidate for public office. Walker did not ask Einhorn to put the billboards up and, in fact, Einhorn never told Walker that he intended to do so.

Why is this a story?

Steve Einhorn had a constitutional right to speak to an elected official about an issue like voter fraud. He had a constitutional right to speak to the public about that issue. To suggest that exercising the first right cancels out the second is wrong from about every perspective I can think of. State law doesn't say so. Neither the state or federal constitution would permit it. It would be immoral to punish people for expressing their point of view. It would be bad public policy because it would suppress a free and open discussion of the issues.

But it's a story for two reasons.

One is that the John Doe prosecutors are wrong on the law and have launched a scorched earth investigation based on evidence of activities that aren't illegal and could not be made so. Even though I can't imagine that even they would say that this was a "coordinated" political communication, becoming part of the process - and the object of "breaking news" - becomes a punishment in and of itself.

The second is, that because they have launched this investigation into only one side of the political debate (based upon their expansive and erroneous view of the law, they could have easily started to investigate liberals and Democrats), there is a prurient and political interest in mucking about documents that should never have been disclosed. Give me the chance to go through tens of thousands of documents related to the political activities of Democrats, unions and liberal advocacy groups and I suspect there'll be a few interesting stories to tell, even if there is no more evidence of illegal activity than the Doe prosecutors have found.

The billboards have been criticized as an effort to suppress minority voters. Why is this so? Certainly the critics don't mean to suggest that minorities are more likely to vote illegally. We don't believe that reminding people that shoplifting is illegal dissuades them from entering stores. These billboards were not, as is often claimed, put up only in minority or Democratic neighborhoods, I saw one near my house in Mequon - an area where, near as I can tell, the only Democrat is my very nice neighbor, Frank.

Of course, it's alright to criticize someone's speech. If you hold the silly view that reminding people that state law does, in fact, make it a crime to vote illegally is some awful act, knock yourself out. But some one who stands up for an issue that he or she thinks is important, should not get dragged into a puffed up criminal investigation. Nice times we live in.

Cross posted at Purple Wisconsin.

*For what's it worth, I have worked with and quite like Steve and his wife Nancy, but I'd say the same thing about anyone in this situation.



Friday, September 05, 2014

Auto workers in the Five Percent?

At Purple Wisconsin, Rudy Willis posts an oft-cited statistic that German auto workers make $67/hr vs. $ 33/hr for American auto workers. The reason, he says, must be unions. Unionize and American assembly line workers could be making six figures as well.

Really? Is the absence of unions all that stands between us and $ 140,000/yr factory workers? This is one of these factoids that can't possibly be true - at leat without substantial qualification - and it turns out that it isn't.

The $ 67/hr figure includes benefits. Fair enough. But, remember, the American auto companies are unionized as well and  that type of "all-in" calculation has also led to estimates that UAW workers make - or made before the auto companies went belly up - $ 75/hr. (These numbers have been criticized because they included retiree benefits but these have to be accounted for somehow.)

So maybe unions can - and have - resulted in huge salaries for autoworkers in the US. But the Big Three have certainly not done well enough to continue paying them. The troubles of the American auto industry is not entirely due to labor contracts, but they are certainly part of the picture.

Now there are auto workers in America who are not unionized. They tend to work for foreign manufacturers - like German companies -  who outsource their production to America. Perhaps if German autoworkers weren't making $ 67/hr, they wouldn't have to.

But, putting that aside, how can German companies pay those salaries and remain competitive. It turns out that they don''t. German "autoworkers" don't make $ 67/hr. Some do. Others are contract employees or temporary workers or work for subcontractors - because, truth be told, there is no alchemy that can pay assembly line workers like they were pediatricians.

There's no way around the facts. Unions are legalized cartels. That is not an accusation, it is the theory behind unionization. The idea is by allowing employees to form a cartel, they will have more market power against an employer who is also assumed to have oligopolistic power (i.e., there are not many competing employers) The result is necessarily some combination of higher wages, lower profits, higher prices and lower employment depending on the structure of the markets or, as we used to be told by our economics profs, "the shape of the curves."

In competitive markets - and the auto industry has become much more competitive in the past 40-50 years - cartel wages can't be absorbed which is one reason that the American companies have gone south and the Germans have minimized their use of people who make $ 67/hr.

Cross posted at Purple Wisconsin.


Thursday, September 04, 2014

Would you denounce a mosquito for biting you?

Of course, Debbie Wasserman Schultz' comments using domestic violence as a metaphor for Scott Walker's comments  are bizarre and reprehensible. Beating up women is a horrible thing. Suggesting that it is somehow like disagreeing with the Sage of Ft. Lauderdale (successor to the inestimable Alcee Hastings) on the rules for calculating damages in employment discrimination cases or on the minimum wage is insulting to victims of actual domestic violence, conservatives and rationality.

Or it would be if Debbie Wasserman Schultz was someone who is supposed to be taken seriously. But she's not. Her job is not to offer thoughtful and persuasive arguments for the left. As chair of the DNC, her role is to be a cheap shot artist; someone who strings together pejoratives to inflame the base and rile up donors. You could actually program software to do it. To blame her for being ridiculous is like criticizing a shark for feeding. It's her nature.

Cross posted at Purple Wisconsin.

Wednesday, August 20, 2014

Ryan is right on the War on Poverty

In Sunday's Journal Sentinel, Joe Volk, a self-described Democrat and man of the left, expresses tentative support for at least some of Paul Ryan's anti-poverty proposals. Good for him. Although I'm not sure I'd describe Rep. Ryan's proposals as a policy epiphany - it's pretty much what he's always done, Mr. Volk is willing to engage in a serious conversation about something important. That's all too rare.

But there was one part of Mr. Volk's column that struck me as jarringly off-key and fairly important to that conversation. So in the spirit in which he started it, let me raise a few questions.

It response to Rep. Ryan's claim that the War on Poverty, begun in the mid-sixties, has largely failed, here is the story that Mr. Volk wants to tell. Anti-poverty programs dramatically reduced poverty until they were "dismantled" by the Reagan administration. Maybe he has access to numbers that I don't, but his story seems almost entirely wrong.

You can see movement in the poverty rate here. Poverty was falling at a dizzying rate during the years preceding enactment of the Great Society social problems. It continued to fall sharply until the early seventies and then fell no further. It has been relatively stable since then. It was not, as Mr. Volk says, at 11% in 1980.  Then the rate  started to turn up again after a run between 11 and 12% in that late seventies, hitting 13% in 1980 and 14% in 1981. You can't blame President Reagan for that.

Mr. Volk is right in that per capita anti-poverty spending was reduced in the early 80s (although it hardly represented a "dismantling' of the programs) and, for a time, the increase in the poverty rate that had begun at the end of the Carter administration continued. But  then it started to fall and then rise, fluctuating between 11 and 15% over the past thirty years. You can track the poverty rate against anti-poverty spending here. If you see a relationship between increased spending and reduction in the poverty rate over the past 40 years, I'd love to hear about it.

Per capita spending on poverty programs has continued to increase steadily without much discernible connection to the rate of poverty.  This is true even if one backs out Medicare spending on the grounds that much of its increase is due to health care costs rising above the rate of inflation rather than an increase in the nature of the support afforded poor persons. Again, so much for the "dismantling" of these programs.

So Paul Ryan's critique - that the War on Poverty has not been effective - seems spot on. But it does require a qualification.

While anti-poverty programs have not reduced poverty without regard to government transfers, it probably ameliorated it. The official poverty rate does not include non-cash transfers (e.g., food stamp, housing subsidies) or tax credits such as the Earned Income Credit (much beloved by Republicans).  If you take these things into account, the reduction in the poverty rate is more significant. In other words, the War on Poverty may have made people who are poor better off than they would have been in its absence.

It's necessary to say that this ameliorative effect "may" be the case because the apparent stagnation of the decline in the poverty rate roughly coincident with the beginning of the War on Poverty might be related. It is possible that the dramatic and continuing increase in anti-poverty spending has contributed to dependency. (This could be true even if poor persons "want" to be self reliant.)

Of course, it's also possible that the poverty remaining when the War on Poverty began is more intractable.

So the truth is more complicated that we fought on a war on poverty and poverty won. We've spent a lot of money - almost a trillion each year by some estimates - and made poor people better off. Whether it has done so efficiently is another matter. We may very well have been able to get the same ameliorative impact with less money or more improvement in the lives of poor people for the same money.

How you see this depends on what you think the War on Poverty was for. If it was just to get people some money, it is (perhaps) an inefficient success. If it was intended to make people self-sufficient (and it was), then it is time for a reassessment.

We have not dismantled the War on Poverty and the War on Poverty has been markedly ineffective in making poor people self-reliant.

Cross posted at Purple Wisconsin.

Wednesday, August 13, 2014

New York Mayor couldn't make it here

For those who may be savoring the failure of Mayor Bloomberg's inaptly named IndependenceUSA and the "dark money" Greater Wisconsin Committee to take down David Clarke, Charles C.W. Cooke has a great piece up at National Review Online. Cooke sees Bloomberg as a Captain Ahab. His white whales are many - big sodas, transfats, smoking, elevators, cars in the "wrong" places, unapproved headphones and .. guns. But he won't rest until everyone is just like Mike:

Michael Bloomberg, meanwhile, will remain, like Ahab before him, “tormented with an everlasting itch for things remote,” and resolved to “smite the sun” should it have the temerity to defy him. “For all men tragically great,” Herman Melville wrote, “are made so through a certain morbidness . . . all mortal greatness is but disease.” As of today, Bloomberg’s disease is not yet cured, and it will probably never be cured, for his affliction is to have been granted more money than sense; to have bought into the conceit that the average American hews to the same prejudices and privileges as do the chattering classes of the Upper East Side and of fashionable Brooklyn; and to have considered earnestly that his checkbook and his admonitions could ever have held more appeal to the electorate than the honest Midwestern sheriff in the cowboy hat.
Read the whole thing.

Cross posted at Purple Wisconsin.

Monday, August 11, 2014

Sixth District is all good

I live in the Sixth Congressional District where three conservative candidates are vying for the Republican nomination. I have not endorsed one of them because I would be happy to vote for any of them. Each has his strengths and weaknesses, but, on the whole, I can't come to the conclusion that one is clearly preferable to the others.

Ashley Schultz thinks otherwise. She is "terrified" of Glenn Grothman who she believes would "set us back fifty years." Now I think that Ashley is a rising young star and a great addition to Purple Wisconsin.* But I see it differently. 

I am not endorsing Glenn Grothman. His strength is his commitment and engagement with ideas, but, as Ashley points out, his weakness is his tendency to be, at best, overly blunt and, at worst, unmindful of important nuance. If all she is saying is that he has a weakness as a candidate - a tendency to gaffe - that may counsel a vote for one of the others, I have nothing to say. I don't necessarily agree, but it's a fair point.

But I do believe that there's a distinction that needs to be made clear. Ashley may have assumed it. I think it needs to be made explicit.

It's one thing to criticize a candidate for not adequately negotiating the shoals of our silly public discourse about things like a "war on women." But we still ought to recognize that the discourse is, in fact, silly.

We see it happen again and again. Someone will make a statement that is either ambiguous or "objectionable" only for its failure to show proper obeisance to certain sensitivities or to one of the canonical myths of politically correctness. The statement may fail to add a Seinfeldian qualification ("not that there's anything wrong with that") disavowing a bias that has not been expressed. It may  come too close to an uncomfortable truth that is susceptioble to misinterpretation (e.g., Paul Ryan's recent statements regarding the interaction of culture and poverty).

He or she will then be overwhelmed by charges of "racism" or "sexism." When his or her defenders point out that the charges are untrue, the attackers will just scream louder or say that, even if it was not biased, the statement was in some sense "insensitive" so "just as bad." Because being seen as "racist" or "sexist" is anathema in today's society, people who know better either join the pogrom or head for cover.

Now, to be clear, I don't think that's what Ashley is doing. But the examples that she gives are instructive. In our hypersenstive world, they may be political gaffes, but they are not substantive errors.

For example, Grothman made a statement about young men being more interested in making money because they may someday be breadwinners. He was arguing that disparities in pay between men and women do not necessarily reflect employer bias. One alternate explanation, he said, might have something to do with life choices. He gave the example of two lawyers who marry. The husband stays at his firm while the wife takes time off to raise the children. At 50, he'll probably be making more money than she is, but this will not be the product of employer bias.

The first thing to note is that Grothman is right. This story applies to about many lawyers that I know. For whatever reason, women have been more likely to step out of the workforce - or take less demanding jobs - for family reasons. This has consequences. Indeed, yesterday's New York Times reported on a study finding that "too much" family leave can hurt one's career prospects.

The second thing to note is that his point was not normative - he was not saying that this is the way it should be - only that it has been the way it is.

It could be that women who are becoming lawyers today will be less likely to do this in the future. It may be that the greater tendency - so far - of women to interrupt their careers (or take more family friendly jobs) is the product of "socially constructed" gender roles. It may be that employers should - whether on their own or by compulsion - adopt more family friendly policies so women are less likely to leave - even if this does impose costs on others.

But none of this is what Grothman was addressing.

Ashley quotes an old - and admittedly inartful - statement opposing mandatory life sentence for persons committed of two or more counts of sexual assault of a child. While one could read the statement as being "insensitive" to victims, Grothman's point was that all such offenses are not the same and that some sentencing discretion may be in order. For example, do we want to impose a mandatory life sentence on an 18 year old convicted of having sex with his fifteen year old girl friend? He could have said it better, but it seems pretty clear that this is what he meant.

Now I understand that many people don't want to think this hard (although it's really pretty easy) about what someone has said. Some don't want to give a political opponent the benefit of the doubt. Others find it easier to suspend critical analysis. For them, it is enough that he said something that  - kind of, sort of  - has to do with gender roles or some other sensitive topic and that's icky.  It's easier to think one has preserved one's own virtue by pre-emptorily throwing the speaker under the bus.

Of course, Ashley Schultz is not one of those people. But I think we need to make a distinction between criticizing a candidate's political skills and judgment, on the one hand and his or her substantive positions on the other.

* By way of disclosure, Ashley works at St. Anthony's School where I am on the Board of Directors. I have no authority over her, but, even if I did, she should feel to tell me where I'm wrong. God knows I need it.



Cross posted at Purple Wisconsin