Why the left and right disagree on judicial elections

I imagine that many voters find judicial elections to be confusing. Candidates seem to have but one message. They say that they will simply apply the law and not engage in politics. They reject any suggestion that they will inject their politics into judicial decision-making or be an “activist” judge. In judicial elections, there are only little Scalias out there.

Yet voters notice that the political cognoscenti – the ideological movers and shakers – seem to care an awful lot about who wins these races. They typically see liberals and Democrats supporting one candidate while conservatives and Republicans support another. Although no one seems willing to admit it, it sure looks like something political is going on.

The answer lies in the past one hundred years of American legal and political history. Early twentieth century Progressives – in many ways the antecedents of today’s American left – came to be frustrated with our Constitution. Our Founders mistrusted power and created a lattice of branches of government and dual sovereigns in which each checked the authority of the others. Power in the federal government was divided among the executive, judiciary and legislature. The respective spheres of the state and federal governments limited each other.

If your objective is limited government and individual liberty, this is a pretty good framework. But if your goal is to use the state to remake the world, it can be awfully frustrating. As early as 1908, Woodrow Wilson called for a “Darwinian Constitution,” one that would not serve as permanent legal framework for governing but that would “live” and “grow” and “change” to accommodate the desires of the Progressives.

Put simply, the project of the American legal left became two fold. One was to remove barriers to the authority of the state, particularly the federal government. The other was to intervene where the political branches had “failed” to “address” social problems in an acceptable way. Thus, over the years, we have seen the authority of Washington and the courts expand dramatically.

To accomplish these objectives, the legal left adopted a number of interpretive methods and theories that would maximize the authority of judges. For example, to simply apply the law as it is written – something that lawyers today call “textualism” – was derided as simplistic. Better to somehow discern a “spirit” that goes beyond the law’s mere words. Nor was it necessary to interpret any ambiguity in the law to mean what the people who enacted it thought it meant – what lawyers today call “origninalism.” If the idea is to change the Constitution’s limits on state and federal authority or to act where the legislature and executive has not, judges cannot be constrained by the “dead hand of the past.”

Broad constitutional principles like equal protection and due process became malleable and protean enough to justify substantial judicial interventions in the political and governing process. Litigation became an important tool for making policy.

Conservatives have criticized these developments as lacking legitimacy. Judges, they have argued, should not be given the discretion to depart from the plain or original meaning of constitutional or statutory text. While courts have a duty to ensure that the government abides by constitutional limitations – and even to strike down laws where necessary, the law’s text and original meaning should limit them. To do anything else would turn judges into legislators and subvert our constitutional separation of powers.

This is admittedly an oversimplified “op-ed” version of the matter and an extended discussion would involve considerably more detail and nuance. But it helps to understand why left progressives and Democrats, on the one hand, and conservatives and Republicans on the other, seem to differ so sharply on judicial elections. They have come, over the years, to have very different views of the law and the judicial function.

We see this in the current race between Justice Rebecca Bradley and Judge Joanne Kloppenburg. Bradley says that she is a jurist in the mode of Antonin Scalia and will “apply the law as it is and not as I wish it to be.” Given an opportunity to explain, she will elaborate on the themes that I’ve briefly outlines.

Kloppenburg, on the other hand, compares herself to Justices Ruth Bader Ginsburg and Sonia Sotomayor, jurists who have tended to have a more expansive view of the authority of courts to clear the way for or, if necessary, even implement the left progressive agenda.  Kloppenburg, herself, has said that she believes it is the role of judges to interpret the Constitution to create “a more equal society.” Whatever that means and whether it is desirable or not, such an objective is quite ambitious and is going to require an activist judiciary. It goes beyond simply applying the law and necessarily means more power for judges and the state and less for legislators and private citizens. It means rule by lawyers.

Kloppenburg reinforces that message by mentioning Scott Walker whenever she can. It is a dog whistle to the political left that says, “I’m one of you.”

When seen in this way, the hotly contested nature of our judicial elections is not an aberration or a disgrace. They are, with all their imperfections, about something that matters.

Actually, the Senate Can "Obstruct" a Supreme Court nomination; it's called refusing to consent.

In yesterday’s Journal Sentinel, Marquette Law Professor Ed Fallone suggests that the Senate would be somehow abdicating its constitutional responsibility should it fail to consider President Obama’s nomination of Merrick Garland to the United States Supreme Court. He’s wrong.

Professor Fallone begins by stating the obvious – and, in this context – irrelevant. The President has the sole authority to nominate a justice. No one disputes that. No one argues that the Senate has any role in the “pre-nomination” process or that it can place conditions or restrictions on who the President may nominate. The Senate has not done that.  An announcement by Senate leadership that it will only consent to certain kinds of candidates or even that it will consent to no  candidate places no limitation on the President’s ability to nominate who he wishes just as an announcement that a particular budget will be dead on arrival does not limit the President’s ability to propose it. If the Senate has – or is contemplating – doing something inconsistent with its constitutional duty, it must be something that will be done – or not done – after Judge Garland’s nomination.

But there is no duty to vote upon – or even to consider – a judicial nominee.  The President’s authority to appoint someone to the federal bench is contingent on the Senate’s advice and consent – something that it is constitutionally free to withhold for any reason it deems appropriate. In fact, the very authority cited by Professor Fallone makes that clear.

In an attempt to accuse conservatives of hypocrisy, he cites to a 2005 article by a conservative law professor John McGinnis posted on the website of the Heritage Foundation, a group that Professor Fallone accuses of seeking to “obstruct” Judge Garland’s nomination.  (Full disclosure:  I am a member of Heritage’s Legal Strategy Network.)

Professor McGinnis did indeed say that the Senate may not restrict the President’s selection of a nominee.

But he said something else as well:

The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential "point of view" were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.

(Emphasis added.)

In other words, while the President can ask the Senate to consent to the nomination of anyone he chooses, the Senate can say no for whatever reason it wants, including the desire to have a vacancy filled by the next President. Nothing in the constitutional text requires any particular process for withholding consent. There is no mandate to hold hearings or to have an up or down vote. Indeed, many lawyers have been nominated for the federal bench only to see their nominations fail for want of a hearing or vote.  The same is true for nominees to other branches who the Senate either opposes personally, or opposes for other, often unstated reasons.

Professor Fallone makes one other obvious point. “Hypocrisy,” he writes,” is nothing new in politics.” It sure isn’t. In a 2005 speech to the left-leaning think tank Center for American Progress, former Senate Majority Leader Robert Byrd  (D- W. Va.) said that “[t]he Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.” (The Center for American Progress today finds itself outraged by such an idea.) In lengthy remarks during the final year of George H.W. Bush’s nomination, now Vice President Joe Biden said that the Senate was well within its rights to refuse to consider a nominee that was not to its liking “once the political season is underway.”

Indeed, the Alliance for Justice, a left-wing lawyers group sponsoring the statement signed by Professor Fallone urging consideration of Garland, is famous for “obstructing” the nominees of Republican Presidents, including by filibuster.

What we have here is not a failure to abide by commonly held or binding legal principles. It is a failure to agree. Sometimes this results in a stand-off that only the next election can break.

Judge Kloppenburg's Recusal Distinction Doesn't Work

In this morning's Journal Sentinel, Joanne Kloppenburg attempted to explain why she sat on a case arising from the John Doe investigation. One of the Doe's targets - Wisconsin Club for Growth - had spent large amounts of money criticizing her during her campaign for the Supreme Court in 2011.

Given her views on the matter of campaign support and recusal, it is astonishing that she did not step aside. She has been quite critical of Supreme Court rules that allow - but do not require - judges to sit on cases involving parties who have contributed to or spent in support of his or her campaign. She even has gone so far to suggest that those justices who were supported by Club for Growth and, like her, stayed on the case contributed to an appearance of impropriety because "people around the state are saying that the decision and several others look to them like they were foregone conclusions and they believe there was a conflict of interest."

Well, let's see. If Justice David Prosser should not sit on a case in which the Club spent money that sharply criticized Kloppenburg and benefited his campaign, why can Joanne Kloppenburg - the person who was criticized - sit on the same case? After all, politics is a zero sum game. What the Club did to benefit Prosser harmed Kloppenburg.

This is Joanne Kloppenburg's excuse: "When you someone running ads for you there is a perception of quid pro quo that doesn't exist when someone is running ads against you." (By "quid pro quo," she means the possibility that support was traded for some subsequent action.)

That won't fly. Even if you think the opposition of one group can be disentangled from the support of opposing groups, it is inconsistent with our common sense understanding of the sources of judicial bias - a concept that goes well beyond the risk of a "quid pro quo." It suggests that Judge Kloppenburg has not read or does not understand the United States Supreme Court's jurisprudence on this question. 

Judge Kloppenburg's focus on "quid pro quo" confuses the Supreme Court's campaign finance jurisprudence with its treatment of recusal. And it gets the former wrong. The Supreme Court has said that 1) only the potential for a quid pro quo arrangement justifies the restriction of campaign spending but  2) independent spending does not create the potential for a quid pro quo. Because the Club's spending in the Supreme Court race was independent (allegations in the Doe involved state legislative races), it could not have given rise to the risk of an actual or apparent quid pro quo.

But more importantly, in the recusal area, the Court's concern is not limited to the potential for a "quid pro quo." Rather, the constitutional inquiry is directed to any circumstance in which a judge's ability to be impartial might be questioned. Substantial and impactful campaign support can create a "debt of gratitude" that creates an unconstitutionally high appearance or risk of bias. But that's not the only source of bias. The Court made clear that the due process clause requires“a realistic appraisal of psychological tendencies and human weakness,” to determine whether there is “such a risk of actual bias or prejudgment" that recusal is required.












There is no reason to believe that the resentment or desire for vengeance that might be the result of spending against a judge is any less concerning than the "debt of gratitude" that might be the result of spending for that judge. You can be just as biased against those who have opposed you as you can be biased in favor of those who have supported you. In fact, I'd say that the former is more likely than the latter.

Don't believe me? Let's actually engage in a "realistic appraisal of psychological tendencies and human weaknesses." Ask yourself if you would like to appear before a judge that you had just publicly denounced as unfit to serve on the bench? No "quid pro quo" to be sure, but I'm betting that you might feel a tad uncomfortable.*

This is why lawyers will rarely ever publicly criticize judges. It is why they rarely ask judges to recuse themselves. In the sage words of The Wire's Omar Little, "if you come at the king you best not miss."

I have always argued that Judge Kloppenburg was within her rights to sit on the case. I have explained why elsewhere. I think that Supreme Court justices, in particular, should be very reluctant to recuse themselves because of independent ideological support. But Judge Kloppenburg and her supporters don't agree with me. Given her more expansive view of the duty to recuse and her desire to kick dirt at Justice Prosser for not recusing in the very same case that she sat on, I don't see how she concluded that she should not recuse. The distinction between "supporting" and "opposing" is a chimera.

* By way of disclosure, I support Justice Bradley. I recommended her to the Governor and have contributed to her campaign. This view is not one I formed in the light of this campaign. I developed it in a law review article published in 2010.

The views expressed here are my own and are not those of the Wisconsin Institute for Law & Liberty which neither supports nor opposes candidates for public office.

It seemed like 1968 in Chicago

I happened upon a left-leaning website the other day (sure, I read them) and read that “right wing voters love Donald Trump.”

Actually, we don’t.

Last weekend, I spoke at a panel at CPAC, a large national conservative gathering in Washington DC. Oh, I thought I was going to be brave. I resolved to let the chips fall where they may and boldly denounce Trump if given the chance. And I did. The subject was free speech and I said that Trump’s proposal to “open up” the libel laws so powerful politicians like him could sue their critics was antithetical to everything we believe in.  

Huge applause. Turns out I wasn’t being so brave after all.

The only thing that really surprised me was the near uniformity and intensity of the anti-Trump sentiment. It is a running joke among movement conservatives and libertarians that, like Pauline Kael who knew no one who voted for Richard Nixon in 1972, we don’t know anybody who is supporting this guy.  In fact, it seems that everyone we know not only does not support Trump, they can’t stand him.

That’s extraordinary.

But it makes perfect sense. In my view, the principle difference between the left and right in the United States has been over the extent to which the state ought to manage the life of its citizens. When should it take money from one group of citizens and give it to another? How closely should it manage economic activity? What steps should it take to control discourse and attitudes?  It has been about the relative values we attribute to, on the one hand, freedom and equality before the law and, on the other,  more political decision-making and greater equality of result.

Of course, these differences are between points on a spectrum rather than polar opposites.  In general, people like me are more skeptical of the need for state interventions and very pessimistic about the government’s ability to successfully accomplish them.  I appreciate that some positions taken by social conservatives complicate the matter, but not as much as it might seem and less so today than in the past. But that’s a topic for another time.

Donald Trump, of course, isn’t skeptical of government interventions or of collective control determined by politics at all– at least not if Trump is in charge.  He almost never talks about freedom or limited government. He flirts with single payer health care and loves eminent domain for private purposes. He wants to intervene in global markets with tariffs and trade wars. He wants to regulate speech. He has a capacious view of both executive and federal power. He is the quintessential crony capitalist.

This is why we think he’s closer to the Democrats than he is to us. That’s not surprising either. He’s been one most of his life. 

This is not to say that Trump is a man of the left. He transcends the dominant political divide in the United States, although not in a good way. What Trump represents is something that has not been strong in American politics, but has become increasingly present in Europe. He wants to change the Republican Party to something that is more nationalist and nativist; more collectivist and authoritarian. To use a British example, he wants it to be less like the Conservative Party of Margaret Thatcher and more like today’s British National Party.

One might call this “right-wing” – in Europe they do – but it would be a fundamental reorientation of the American political spectrum. A Trump Republican party might be attractive to many Democrats but it would be repulsive to many current Republicans.  I thought of this on Friday night while watching the disruption around a Trump rally in Chicago. It seemed  like something we haven't seen since the rending of the Democratic Party in 1968. The way in which both sides seemed fully enveloped in politics as salvation seemed foreign. We don't do angry mobs in America - at least not lately.

As much as I dislike him, Trump is not comparable to Hitler. Sanders is not like Lenin, Castro, Mao or any of the other monsters of the left. But the angry and public confrontations between large groups of partisans reminded me of German politics in the run-up to Hitler’s rise to the Chancellorship. That was a time in which the center did not hold and politics was fought in the streets as well as with the ballot box.

Of course, we don’t have running battles between the Sturmabteilung and Rote Front – at least not yet. But Friday night seemed like something we haven’t seen for a long time. We’ve got reports that a Trump operative attacked a reporter. We have a candidate who calls on supporters to “beat the crap” out of people who might be “getting ready” to throw a tomato. We have organized efforts to shut down opposing political rallies. We have fights between protesters and Trump supporters.

On Friday night, it seemed to me that both groups – the authoritarian “right” (if that’s the term we want to use for Trump) and the authoritarian left – are equally unattractive. After the Trump rally was cancelled, the collection of BlackLivesMatter and Sandernistas chanted that “this is what democracy looks like.”

No, actually it isn’t. What I saw last night looked like something else altogether. Let’s hope we don’t see much more of it.

Cross posted at Purple Wisconsin.

Robin Vos' proposed amendment to choice funding formula would not "gut" public schools

A current legislative proposal, introduced by Speaker Robin Vos,  to change the funding mechanism for the statewide school voucher program have been widely mischaracterized. For example, a recent article in the Journal Sentinel suggests the "districts with voucher students face a funding cut" and that proposed funding mechanism for the statewide (not Milwaukee) voucher program could "cost" districts with voucher students (other than Milwaukee) $ 22 million dollars next year. An article yesterday said that, under existing law, districts are allowed to simply "recoup" the funds they lose due to participation of students in the choice program.

It's true that current law permits districts to recoup reductions in state aid to pay for vouchers for children a district no longer educates, but it isn't the whole story. And, under the Vos amendment, districts would still be able to recoup aid reduction..

Let's start with existing law. Although the districts may recoup the reduction in state aid attributable to a student departing for a private school, whether that reduction amounts to a "loss" depends on the circumstances.  But many districts are doing much more than "recouping" what they have lost in state aid.

Last June, my organization released a report concerning the contemplated statewide expansion of school choice. We pointed out that changes in the way that vouchers were funded statewide could create a "school choice bonus" for districts with students departing for private schools. This, we explained, was because districts could continue to count departing students for purposes of their revenue limit and state aid. State aid, in turn, would only be reduced by the amount of the voucher. Because this will invariably be less than the revenue limit, districts could receive a combination of state aid and local property tax revenue greater for each departing student than the amount by which their state aid would be reduced. Thus, while districts receive less total revenue, their revenue per student would - in almost all - if not all - instances, increase.

Apparently some legislators believed that the funding formula as passed would permit districts to tax only to the extent of their lost revenue per departing student or that, in any event, districts would not levy up to the revenue limit for students that they no longer educated. But that's not what has happened.  According to the non-partisan Legislative Fiscal Bureau, most school districts, which have children in the voucher program, have helped themselves to the school choice "bonus" that we predicted and then had the temerity to "blame" the voucher program for the excess taxes that they chose to impose. The MacIver Institute highlights this issue.

The question is this: Should school districts be able to continue to receive state aid and levy taxes for students that they no longer must educate even if the sum of state aid and taxes exceeds the amount of revenue they lose for each departing student? Districts are not simply "recouping" lost funds. Those who choose to tax to the extent of their revenue limit are making up for what they have lost and then some.

At very low levels of participation, it is possible that the savings attributable to departing students will be less than the voucher amount (and lost revenue) for those students. The impact won't be large but it may make sense - both for the school districts and taxpayer equity (it is not clear why there should not be a local component of voucher funding) to allow districts to recover some or all of the portion of their lost revenue. Of course, at higher levels of participation, a well managed district ought to be able to offset revenue losses because marginal costs should become closer to average costs and the aid reduction will always be substantially less than the average cost per student.

In any event, the amendment to the law proposed by Speaker Vos would only change the timing of this school choice "bonus." Rather than allow school districts to count all choice students (kids that a district no longer educates) for purposes of state aid and taxing authority immediately, it "phases" in the counting of these students as would be the case if these were new students (and phases them "out" after they no longer attend a private school within the district). In other words, the Vos amendment only changes the timing of the school choice "bonus."

The public narrative has been that current law simply drains the public schools and the amendment would make it worse. It's not that simple.

Cross posted at Purple Wisconsin.

May Justice Scalia rest in peace and his work continue

This weekend, America lost a great man. Justice Antonin Scalia was, more than anything else, committed to law as a discipline;  as a way of resolving questions that is distinct from - and more limited than - politics, economics and moral philosophy. Judges, in his view, are not charged with the capacious inquiry into what is "right," but a more limited duty to decide what is and is not legal.

To that end, he championed interpretive methods - ways of deciding cases - that limited judicial power and discretion. He was a champion of "textualism," arguing that constitutional and statutory language should be read to mean what it says. (It would surprise the general public to know that this common sense approach is quite controversial among certain elements of the legal community.) Justice Scalia was committed to the notion that, if the language of a law is not clear, judges should not simply give it their preferred meaning, but should attempt to discern its "original meaning," i.e., determine what it meant to those who adopted it and gave it the force of law.

As an advocate of plain meaning and originalism - two ideas that were met with derision among legal sophisticates when I attended law school - Justice Scalia moved the law. While I did always agree with him - I thought his view of executive and administrative power was too generous and his views on what cases can and cannot brought in federal court too limited - we are closer to a proper understanding of our Constitution than we were thirty years ago.

Because he believed in judicial modesty, Justice Scalia would not have wanted the selection of his successor to be the existential battle that it is likely to become. He did not believe that courts should have enough power and discretion to make the question of who sits on them as important as it has become.

But it is.

While the Supreme Court is routinely described as "conservative," it has a very disciplined bloc of four members firmly ensconced in the doctrines and understanding of the legal left. Justices Ginsburg, Breyer, Sotomayor and Kagan would dramatically change our constitutional jurisprudence. On a long list of issues - affirmative action, free speech, freedom of religion, federalism - a fifth vote for this group will change current doctrine.

The Senate is not obligated to allow President Obama to change the Court in this way. It's right to "advise and consent" - its duty to exercise independent judgment on judicial nominees - says otherwise. That duty is not limited to passing on a nominee's legal qualifications. It is also free to insist that a nominee have demonstrated a proper understanding of the Constitution. It is obligated to ensure that a nominee have a commitment to federalism, the separation of powers, individual liberty and the written Constitution.

If the Senate is unable to confirm the President's nominee, it will not be "obstructing" the process but playing its constitutional duty in that process. It has absolutely no obligation to agree to the President's choice and, indeed, has a duty to exercise its independent judgment.

It has been eighty years since a vacancy arising in the year of a Presidential election has been filled in that year. In 1956, President Eisenhower made a recess appointment of William Brennan, but Justice Brennan was nominated and confirmed in 1957 - after the President was re-elected. In 1968, Chief Justice Earl Warren announced his retirement and President Lyndon Johnson - like Barack Obama a lame duck -  nominated Abe Fortas to replace him. Fortas' nomination was blocked by filibuster. The people elected Richard Nixon and it was Nixon who nominated Warren Burger to fill the vacancy and the next Congress that confirmed him.

The future direction of the Court is in the balance and the nominee is likely to serve for a generation. With the presidential election upon us, the people ought to be heard on who will fill this vacancy.

The Media: Speech for me and not for thee?

Over at Right Wisconsin, I have a piece addressing the legacy media's blindspot on campaign regulation and disclosure. In general, journalists understand that compelled disclosure of the identity of speakers can chill speech. This is why they support laws that shield journalists from the obligation to disclose the identity of their sources. Compelled disclosure might cause those sources to dry up.

It's a defensible position - one I generally share - but it comes at a cost. The public's right to know - to assess the credibility of sources and the journalists who rely on them - is compromised. But that compromise may be worth it because it encourages speech - by sources and those who report on them - that would otherwise not occur.

The same is true of compelled reporting of the identity of those who pool their resources to speak. The public may find the identity of those behind a message useful in assessing the message and the politicians who support it. But forced reporting may deter people who do not wish to expose themselves to retaliation or disapprobation. There is a trade-of to be made and distinguishing between express and issue advocacy may be a good place to draw the line.

I could make the same point about the legacy media's typical attitude on "coordination." i.e.,  the idea that cooperation with a candidate to convey a message that the candidate supports makes the resources spent to convey that message a "contribution" to a candidate. This requires that the "contribution" be disclosed, but coordination is not -as is so often falsely reported - just about disclosure. A coordinated expenditure not only needs to be disclosed, it cannot be made at all. The poor soul who makes it - who spends money to speak  - may go to jail for exceeding the limits on contributions.

Of course, the media can coordinate as well as anyone else. It can find out what a candidate wants to say and, if it supports that message, use its considerable resources to convey it. In doing so, it confers a substantial benefit upon the candidate. Yet I am sure that the media would scream long and loud - and rightly so - about a law that would make its reportage a campaign "contribution." To do so would improperly burden freedom of speech and the open exchange of ideas.

But why should the media - corporations who already have a great big soap box - have greater rights than those who must rent that soap box?

The answer is not obvious. Legacy media often argue that the press is "special" - sort of like a utility -  that is responsible and trustworthy in a way that people who have to pay for space in their pages and time on their air are not. This is not only a dubious distinction (there is no reason to assume it is true), it is an increasingly incoherent one. Barriers to entry in the communications field have fallen away. Anyone can build a website. Anyone can stream video content. The only thing that distinguishes those who can charge others to be included in their content from others is market power. Market power seems like a poor basis on which to allocate speech rights.

Isn't their a difference between "legitimate" news stories and a sixty second ad spot?  Not always.  An ad may well reveal important information that the legacy media has ignored. For example, the recent Benghazi hearings highlighted disclosures that Hillary Clinton apparently knew - or at least believed - that attacks on the American embassy were organized terrorism and not a popular uprising in response to a video critical of Islam. Yet she seems to have told - or at least acquiesced in telling - the public something else. One would think that this was a compelling disclosure - one of Watergate-like proportion. But, while you may find the facts buried in the ninth graf, the legacy media has blown off the story. Its journalists have generally preferred to emphasize Clinton's supposed "triumph" at the hearing by which they seem to mean that she did not go all Col. Nathan Jessup on Trey Gowdy. (Indeed, Washington Post fact checkers have tied themselves into knots to avoid acknowledging the obvious.)

But even if you dispute my view of the matter, a sixty second "phony issue" ad pointing out another view would seem as relevant to the public's right to know and as much a contribution to our public discourse as anything in the pages of the Washington Post or seen during the nightly news.

Nor can we assume that the media is not a "special interest." Just about anyone - including people with a variety of interests - can own a media company. In any event, what the New York Times wants is not intrinsically of greater value than what George Soros or David Koch want. It should have no greater First Amendment rights.

What you didn't just read in the Journal Sentinel

The Wall Street Journal somehow got its hands on internal GAB e-mails regarding the John Doe. The Journal Sentinel reported on the revelation but decided to make the thrust of its story the belief of one GAB staff attorney, Shane Falk, that Scott Walker really was a target of the investigation. This contradicted a public statement by Special Prosecutor Fran Schmitz that he was not. There was, apparently, bickering among the prosecutors.




I think the paper missed the story. Completely.




The more significant revelation - completely unreported by the Journal Sentinel - was that Falk was concerned about the impact of Schmitz' statement on the Burke campaign. Following Schmitz' statement that Walker was not a target, Falk blew up. He wrote three consecutive e-mails (including one that accused Schmitz of lying) that included the following:

If you didn’t want this to have an effect on the election, better check Burke’s new ad. Now you will be calling her a liar, This is a no win. I encourage you to roll with it, or tone down the press release a bit more to focus on how many times you said ‘alleged’ or say that people are drawing conclusions that have not yet been proven in a court of law or something.

In other words, a lawyer from the GAB was concerned that Schmitz was hurting the Burke campaign. That's a rather significant revelation.




Now, I appreciate that there is a benign reading of this. Falk may not have wanted the investigation to affect either candidate. Of course, there is no indication that he expressed concern over other statements and leaks which placed Walker in a bad light. But perhaps they just haven't come to light.
In addtion, the e-mail must be read in light of Falk statement - in another e-mail - that the  "sheeple" who elected Walker might have done it even in the absence of what he regarded as "dark money" and "propaganda."




But more fundamentally, it ought to have been no concern to Falk how the GAB or prosecutors' actions affected Burke's campaign. She decided to turn the investigation into a political football. If the guy in charge of the investigation didn't think the investigation pointed to Walker, it should have been of no moment that this contradicted a Burke campaign ad. She, after all, was the one who decided to run it. If Falk thought Schmitz didn't understand the investigation he was running, that should have been the issue - not concern for Burke.




No matter how you view this, I should think the fact that a supposedly non-partisan and neutral investigator was complaining about contradicting Burke's politicization of the investigation is quite newsworthy.




Cross posted at Purple Wisconsin

#BlackLivesMatter and Nativism: Demagoguery at work

We see two political sentiments motivating powerful minorities of voters. The first is nativism, seen in the candidacies of both Donald Trump and Bernie Sanders. The targets are illegal - and sometimes legal - immigrants and free trade.

There are some legitimate concerns about the former. A nation ought to have a secure border and need not accept persons in the country unlawfully as a complete fait accompli, entitled to all the accoutrements of citizenship. But mass deportations are both unrealistic and undesirable and our economic woes are not caused by hard-working Mexicans. 

Trump and Sanders' railing against free trade simply highlights their shared economic ignorance. And, no, the fact that you can make money on real estate deals and licensing your name does not mean you understand how governments ought to regulate - and not regulate - markets. It means you know how to get yours. Nothing wrong with that, but it is not necessarily a translatable skill in this context.

But Sanders and Trump are doing well (although neither will ever command a majority) and much of their appeal is not about the particulars of immigration policy or international trade, but, as I say, the sentiment. It is about the notion that our problems can be blamed on someone else. They are doing something to us. What we need to do is blame them.

The #BlackLivesMatter movement operates in an equally emotion-laden but fact free environment. There are indeed enormous problems - including enormous problems with violence in the black community - but they are not caused by the police. Even if we assume that all are unjustified, officer-involved shootings are, at most, a rounding error in calculating black victimization rates. Indeed, while the question is vexed, it is not clear that blacks who have contact with police are more likely than whites who have contact with police to become involved in a violent confrontation with officers. 

Anytime a police officer uses force against a citizen a thorough investigation is in order. Because we must allow some people to use lethal force to enforce the law, we must ensure that they use it only to enforce the law and only to enforce it. But politicizing the question is flat out demagoguery.

And it is evasive demagoguery. It is the demagoguery of a grievance industry that has failed to deliver in much the same way as the nativists egged on by Trump and Sanders will fail to deliver.

Cross posted at Purple Wisconsin.

Speakers can't be kicked out of the pool

In a column yesterday in the Milwaukee Journal Sentinel, Emily Mills argues, again, for a blatantly unconstitutional campaign finance scheme. She wants public financing with limits on expenditures. The law is clear that expenditure limits can be imposed on only on candidates who choose to accept public financing. It is also clear that expenditure limits cannot be imposed on those who those who refuse it. The law is clear that independent persons and organizations remain free to spend what they want.

But Mills apparently wants to go beyond that. She wants to stop spending and then permit it to continue on those terms that she approves of. As she puts it, she wants to kick everyone out of the pool and then invite every one back into the pool - if they'll play by the Mills Rules.

But the Supreme Court has said that  you can't kick people out of the pool. You can't prevent people from combining their resources (although you can limit the size of contributions to candidates) and using them to express themselves on candidates and issues.

I do appreciate that people on the lament this robust protection of association and expression just as they increasingly oppose the rest of the First Amendment.  The omelette of equality requires breaking a great many eggs, if you will.

But the law is what it is.

Cross posted at Purple Wisconsin.

The unbearable silliness of Trump

There's really no question that Donald Trump's performance in the GOP debate was childish and boorish. Often he simply blustered and stumbled to barely coherent responses, He bragged about buying politicians and stiffing his creditors. He whined about being treated unfairly and confused common standards of decency with political correctness. He asked us to believe that he can bend foreign governments to his will. Yet he can't even handle Megyn Kelly.

In the days since then, he's only made it worse. I understand that Twitter is not exactly a forum for the expression of any thought that is much more than a sentiment, but his feed reads like that of an over fresh high school kid. The man is an embarrassment.

And yet there are people for whom he apparently strikes a chord. They are either willing to overlook his aggressive ignorance and peevish megalomania or, worse, mistake them for virtue. Some of us seem to believe that the more a politician shows disregard for common courtesy and the facts, the more he's speaking "truth" to some imagined "power." They mistake bombast for candor and vulgarity for strength.

When Trump is wrong (and he often is), his supporters see it as being "unscripted." They see his complete lack of depth and detail on any policy question as a commitment to "action" rather than "talk." That no one seems to know what that "action" will be (other than building a wall on the border) does not matter. The guy builds a few casinos, licenses his name to a lot more and fake-fires people on television. He'll get stuff done.

Some on the left want to say that Trump offers some kind of unveiled conservatism, but that's preposterous. He is not conservative.  He is a big government crony capitalist who has fed at the subsidy trough and advocated for eminent domain abuse. He is pro-choice (or was, until yesterday afternoon) and a supporter of Obamacare. He has contributed to Hillary Clinton. If anyone in the current GOP field would share Obama's ambitious view of what a President can and ought to do - who would use his pen and phone rather than the tools the Constitution provides - it is Trump.

I am not sure that much of his support can be articulated in political terms. He is, as some one wrote, the first "post-policy" candidate. His proposals generally boil down to "I'll be terrific." He is someone who appeals to voters who judge politicians in the same way that they judge movie stars, mistaking celebrity for competence and peacock bravado for insight. He may be the first sign, as Neil Postman once wrote, that we may well actually amuse ourselves to death.

But nothing is that simple. Trump does tap into a resentment of the status quo that can be found across the political spectrum. He appeals to the belief that there is a "they" out there (including, ironically, guys like him) who are taking advantage of guys like us.  Who better to tame the one-percent than one of their own? His sometimes ugly appeal to nativism - blame Mexico! blame China !-  is present on both the left and the right. Trump wants to build a physical wall. Bernie Sanders wants to build one with trade restrictions.

But he has an appeal to some conservatives as well. For those inclined to the right, there is frustration that our leaders too often assume office and come to prefer power to principle. They don't reshape our government as much as they reshape themselves. Maybe someone who doesn't act like a politician will be different. But, of course, difference is only different. It's not necessarily better.

Because his appeal is to sentiment and not reason, it's just about impossible to argue with a Trumpkin. They have as little patience with reality as he does. They seem to believe that Putin will swoon before the Donald's faux Alpha Male persona. He'll do things that no one else can or will do because … well … just because.

This is a very limited appeal. Trump does worse in two-way match-ups than almost anyone in the GOP field and he will never get more support than what he has now. Sixty-two percent of the public say that they wouldn't vote for him under any circumstance.

And the support he has will erode. It is easy to say you like someone to a pollster, but harder to actually vote for him. When a candidate's appeal is novelty and entertainment and the frisson of poking in the Man in the eye, he has a short shelf life. These things get old and boring.

In the end,  politics is not about emotional release. However real the frustrations of the left and the right, populists like Trump are rarely the answer. The government cannot be seized by a strong personality who will make the world anew. It cannot be restructured by someone who refuses to understand the issues and offers his impatience for them as a virtue. Playground bullying - name calling and strutting - do not constitute discourse.

Eventually the voters - or enough of them because you can fool some of the people all of the time - figure this out. Many of the people who now support Trump haven't thought much about it. But they will.

Trump too shall pass.

Cross posted at Purple Wisconsin.

Schools are not "underfunded" and have sold "local control"

Ernie Franzen says that Scott Walker should listen to local school principals who 1) want more money from the state and 2) want the state to leave them alone to spend this additional funding as they wish. These principals bemoan the fact the local school boards have much less control over school funding and operational decisions than they did just "a few decades ago." He notes that some of them come from Republican areas -  as if school boards in those areas imposed political litmus tests on their hires.

Here is a fact that the legacy media seems allergic to: Over almost any significant period of time you want to look at, per pupil expenditures on K-12 education has increased at a rate well above the rate of inflation. For example, according to the United States Department of Education, from 1987 to 2012, real per pupil spending on K-12 education in Wisconsin increased from $ 7960 to $ 11,946. That is a real increase of 50.1%. This is exclusive of federal funds (which have also increased).

No, that is not a misprint. During the same period that the principals bemoan the loss of local control, local school districts got 50% more to spend. Now, I remember 1987. It wasn't a different world. Urban school districts had challenges. Teachers had to be paid. Children were learning.

During this same period in which school districts received much more funding, certainly we saw improved results. No. No, we actually didn't. By every measure we have, achievement and attainment remained flat. We spent a lot more money and we didn't get any smarter. And while it is true that spending has stepped back a bit since 2011 (although the increase in real spending over the almost any relevant period remains robust),  Act 10, like it or not, also substantially reduced school costs. However you look at it, over the "a few decades." schools have gotten a lot richer and haven't got any better.

Now, I suppose it is possible that schools that enjoyed a 50% real increase in funding while yielding no improvement in results are "underfunded." But it sure is unlikely. In fact, the claim is pretty much preposterous.

There is no doubt that local control has diminished during this same period. School districts have revenue caps and Act 10 restricted the scope of collective bargaining. Federal money is never ever free,
But it hardly lies in the mouths of local school districts to question the founders of their feast. If the state is going to substantially increase its share of the bill for K-12 education, it is going to want to make sure that the money is spent properly. It may do this well or poorly, but it is going to do it.



Cross posted at Purple Wisconsin.

What was wrong with the Doe

In the wake of the Wisconsin Supreme Court's decision on the John Doe investigation, SpeciaL Prosecutor Fran Schmitz issued a strident statement criticizing the Court's decision. Losing an important case is always disappointing and a lawyer is certainly free to publicly differ with the outcome. But Schmitz' statement is revealing.

He says the Court's ruling "defies common sense" because now someone who contributes $ 25 to a candidate will have his or her name disclosed while someone who gives $ 100,000 to a group who closely coordinates with a candidate will not. That may be so and it may not be desirable, but it is a function of Wisconsin's outdated campaign finance law and not some distortion of that law by the court.

Explaining this stuff in a column length piece is difficult, but here is the problem in a nutshell. The state's campaign finance law applies only to expenditures undertaken for a "political purpose." The statute defines this as anything done to influence an election. Every lawyer with a passing familiarity with campaign finance law knew that this definition was unconstitutional. To avoid that problem, the Government Accountability Board has sometimes - but not always - made clear that the law is limited to express advocacy - calls to elect or defeat a candidate - or its "functional equivalent." Something is the "functional equivalent" of express advocacy only if it is susceptible of no interpretation other than a call to elect or defeat a candidate. This is not my opinion. It is textbook constitutional law.

But the Doe prosecutors were attempting to apply the law to expenditures for things that were not express advocacy or its functional equivalent, i.e., to things that are normally not subject to Wisconsin's campaign finance law. They justified their actions by alleging that these expenditures were "coordinated" with the Walker campaign. The concept of coordination has long been known in campaign finance law but little understood and rarely explored. Wisconsin law does not adeaquately define it or make clear the type of expenditures to which it might be applied.

That's a huge problem. When the state seeks to regulate political activity, it must do so in a very narrow and very clear manner. If it wishes to treat coordinated expenditures as contributions to a candidate, it must adequately define both the conduct that conduct that comprises "coordination" and the content of speech that might be considered "coordinated." This is essential because a failure to do so will deter constitutionally protected speech.

Because its definition of "political purpose" is too broad (and, I would add, because it offers no adequate definition of coordination), Wisconsin's law did not clearly and narrowly apply to coordinated issue advocacy.  For that reason, it could not be applied to the activity being investigated by the Doe prosecutors. While Schmitz might think that such a result "defies" common sense, every court that has considered the merits of his position has rejected it. The judge presiding over the John Doe proceeding itself rejected it. The United States District Court for the Eastern District of Wisconsin rejected it. (While the result in that decision was reversed on appeal, the reversal was on procedural grounds and not the merits of the prosecutors' theory.) And, now, the Wisconsin Supreme Court has rejected it.

If that's not convincing enough, the Doe decision was very much in line with a  decision of the Seventh Circuit Court of Appeals which, in a case that did not involve allegations of coordination, also limited the scope of Wisconsin's campaign finance law to express advocacy. It may well be possible for the legislature to pass reasonable disclosure requirements for certain forms of issue advocacy that have been coordinated - in very clearly defined ways - with candidates. If Mr. Schmitz wants the name of that $ 100,000 donor disclosed, he ought to ask the legislature to rewrite the law, not try to throw people in jail.

And therein lies the real tragedy of this episode. I have no problem with lawyers talking aggressive legal positions. I frequently tell my colleagues that if we don't lose a few cases, we aren't trying hard enough to push the law in the right direction. But we don't have the power to send men with guns to people's homes. We can't lock people up. Particularly when the conduct in question involves constitutionally protected political speech, it is absolutely not proper to advance aggressive theories of the law in pursuit of criminal prosecutions.

And this brings us to the raids. Schmitz objects to the Court's characterization of the details of the raids. It doesn't matter. Let's step back and consider what happened here. At the instigation of the Democratic prosecutor of Milwaukee County, a five year long investigation into one side of the political spectrum was conducted. In it's initial iteration, it found almost nothing that it set out to find. That Democratic District Attorney doubled down and launched a new probe. In aid of this latter investigation, prosecutors blanketed Wisconsin's conservative infrastructure with astonishingly broad subpoenas and launched pre-dawn raids on the homes of certain activists. They told the targets that they could tell no one what was being done to them.

There is no dispute about any of that and, quite frankly, other details about the raids don't matter. If true, they merely aggravate the offense. Treating political activists like drug traffickers is highly unusual and sends a clear message to others. Get involved in politics and you may be treated like a criminal.

While Democrats are decrying the state Supreme Court decision, they ought to be relieved. It would have been short work for a Republican prosecutor to launch a similar probe into Democratic operatives. That would have been just as wrong, but if the Doe had been permitted to continue, aggressive investigations of one side by the other would have become the new normal in Wisconsin politics.

And that would defy common sense.

Oh, please! The GOP did not "end the weekend."

In describing last week's budget, a number of commentators have suggested that the legislature has "ended the weekend." This is because state law will no longer forbid people from working seven days in a row without the permission of the government. Wisconsin will now permit them to do so voluntarily. Critics fear that consent will be "coerced."  Such coercion would, of course, be illegal and, while it would also be unlawful to fire an employee for complaining of coercion, some workers may be reluctant to do so and retaliation might be hard to prove. Coercion might have happened under the old law (i.e., employers demanded seven days in a row even though it was illegal), but it is certainly easier to establish that a person worked seven days in a row than to prove he did not "really" consent to do so.  One commentator went so far as to say that, under the new law, a day off  will be restricted to the "privileged few."

Here's a fact little known by our friends on the left. In the actual world (you know, the one we really live in), all sorts of good things exist that the government does not make mandatory. We know that the GOP did not end the weekend. We know that days off will not be limited to the "privileged few."  We know these things because there are 37 other states that permit people to work seven days in a row. The weekend is alive and well in each and every one of them. In the vast majority of cases, employers have to offer time off in order to attract workers.

It certainly is possible that there will be some cases in which persons who do not want to work a seventh day will feel pressured to do so -  just as, under the old law, there have been cases in which persons who did want to work seven days in row were prevented from doing so. I have no way of knowing which group is larger, but I am fairly certain that the government does not either. Even if we assume that the former group is much larger than the latter, I have no way of knowing how employers react to an absolute prohibition on people working seven days in a row. While it was possible for employers to ask the government for a waiver, doing so is expensive (for both taxpayers and employers) and there is absolutely no reason to think bureaucrats will have any way of knowing when permission "should" be granted.

Certainly a mandatory day off law will impose inefficiencies and increase the cost of labor. Perhaps instead of hiring a full time person, businesses hire two part-time employees. Others may reduce staffing levels. These effects are hard to identify, but they there.

So we know that a mandatory "time-off" law will prevent some workers from doing what they want. It will impose costs on some employees (for example, in the form of reduced hours) and businesses. Those businesses most effected may be Mom and Pops with few employees and less scheduling flexibility.

None of these costs can be ignored. They must be weighed against the benefits of a law that prohibits even voluntary work for fear that some workers will be illegally coerced and unable to prove it. Do the benefits of a mandatory day off requirement outweigh the costs? I don't know, but it seems very unlikely. Freedom should be the default rule. The legislature of Wisconsin - and 37 other states - has got it right.

Cross posted at Shark and Shepherd home page.

There's more to the Obergefell decison than same sex marriage.

I appreciate that people who want civil marriage to include gay and lesbian couples are going to applaud the decision in Obergefell v. Hodges. If you get what you want or what you believe to be right, it’s easy to overlook how it happened. But I want to suggest that all of us, no matter how we feel about marriage, should be deeply disturbed by the Supreme Court’s decision.

 Here’s where you have to start. Five members of a group of nine lawyers decided that the marriage laws adopted by the people in 35 of the 50 states cannot be enforced. These five lawyers – who we did not elect and cannot replace – “found” that constitutional language adopted in 1868 means that no state can define marriage in the way it was defined by every society in human history until 2001. Not only was the traditional view (which was shared by the President and putative Democratic nominee until, figuratively, about six minutes ago) wrong, the Court says, but it was so egregiously wrong that it can no longer be permitted - no matter what a political majority may want.

 Think about this. In applying principles like “liberty” and “equality,” it is essential that courts develop disciplines and limitations that will, as much as is possible, anchor their meaning in some source of authority other than the personal preferences of the judges who happen to be deciding the case. If this isn’t done, then judging becomes indistinguishable from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the "dead hand of the past" but to recognize that it was the consent of a past generation  that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to.

The traditional guideposts and practices that the Supreme Court has developed for interpreting the Constitution’s guarantees of “equal liberty” and “due process” make it extremely difficult to find a constitutional obligation on the part of states to extend their marriage laws to same sex couples. Don’t take my word for it. When Justice Elena Kagan was nominated to be Solicitor General in 2009, , she explained that by “the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage. “

 This is not to say that one cannot attempt to argue for such a right using commonly accepted modes of legal analysis. While I disagreed with her conclusion, Judge Barbara Crabb, in striking down Wisconsin’s limitation of marriage to unions of one man and one woman, attempted to do just that and did it about as well as it can be done.

But in Obergefell, Justice Kennedy did not even try. His opinion might be a persuasive political argument, but it bears resemblance to law. While he suggested that a right of same sex marriage is rooted in the Constitution’s express guarantee of equal protection of the laws, he did none of the work that equal protection analysis requires. That would have required him to identify the standard for assessing distinctions drawn on the basis of sexual orientation (or, some would argue, gender) and then carefully balance the harm caused by the limitation of marriage to male-female unions and the reasons that a state might do so. You won’t find that in his opinion

Instead, Justice Kennedy emphasized the Constitution’s injunction against depriving persons of liberty without “due process of law.” The Court has, on rare occasions, read this provision to mean that there are certain things that the government can’t do even if does extend due process.  (If this strikes you as odd, it should.) Those cases have, from time to time, recognized a fundamental right to marry, even though the Constitution itself says nothing about marriage.

 This creation of such extra-textual “substantive due process” rights is quite controversial, but let’s put that aside. No previous cases involved anything other than the traditional view of marriage as a male-female union. Each one involving the right to marry made the challengers behavior a crime.  That was not the case here. There’s no getting around the fact that, for better or worse, same-sex marriage is a very dramatic change and the idea that our Constitution compels it ought to give one pause.

 If you were arguing for a change in marriage law in the legislature, you’d have an easier task. You could say that it is morally right to let gay couples marry. You could claim that it is good public policy to use marriage to facilitate same-sex relationships. But the Supreme Court has no authority to tell states that they cannot do something simply because a majority of its justices think they’re wrong and it just isn’t fair. That’s not judging. That’s legislating.

 The danger – the reason that you should care even if you support same-sex marriage – is that lawyers work by analogy. In Obergefell, Justice Kennedy says that there is some type of constitutional right to express and define one’s identity. Even if you are sympathetic to the idea of rights that are not themselves expressed in the Constitution, this approach is completely unbounded. It can be employed in support of just about any rights claim and if it was proper to use it in Obergefell, then it’s hard to see why it won’t be proper to use it again. If today’s “new understanding” is that the Constitution means that marriage laws must include same sex couples, tomorrow’s might mean that I have the right to polyamorous marriage or to pay my workers whatever they’ll agree to take or to avoid military service. The contours of the Constitution and the restrictions it might place on democratic decision-making will be limited only by the human imagination.

 In a scathing dissent, Justice Scalia wrote, that while it was not important to him what the law said about marriage, “[i]t  is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

 That should be important – and troubling - to all of us.

Cross posted at Purple Wisconsin.

The Desire to Limit Open Government is a Bipartisan Taste

Two days ago, the Joint Finance Committee inserted language into the proposed state budget that would have substantially - actually almost completely - immunized the legislature from the state's open records law. It's a very bad idea and it was greeted by spontaneous opposition from groups across the political spectrum, including my organization, the Wisconsin Institute for Law & Liberty who released a joint statement with the John K. MacIver Institute for Public Policy.


There is a reason we issued the statement in collaboration with our friends at MacIver. This time, it is Republicans who want to restrict government transparency. Four years ago, it was Democratic legislators who stonewalled MacIver's request for information. We represented MacIver in a lawsuit against Sen. Jon Erpenbach (D- Middleton). In defending against our suit, Sen. Erpenbach, at great public expense, argued, in part, for a view of the open records law that was just as bad - just as protective of the legislature's desire to keep things secret - as what the JFC attempted on July 2.


We won. Sen. Erpenbach's attempt to largely immunize the legislature from the open records law failed. The JFC's effort will fail as well. I predict that it will be pronounced dead, dead dead before noon on Monday. If it ever did get passed, my guess is that the Governor would veto it.


I understand that people in government don't much like the open records law. Compliance is time-consuming. The law was passed before the digital age - before things like e-mail exponentially increased the number of "documents" that individuals and organizations generate. In a world of simple-minded social media and hash tag philosophers, any effort to be candid in writing is likely to be turned into distorted attacks by partisans who either are incapable of understanding - or have no interest in - context.


Perhaps the law can be improved.  But, as I said in our statement, transparency is the price you pay when you get to spend taxpayer dollars.


Cross posted at Purple Wisconsin