Ron Johnson Understands Social Security All Too Well

The urgency of portraying Ron Johnson as clueless leads smart people to make silly claims. Last week, local blogger Jay Bullock said that Johnson's reference to social security as a "ponzi scheme" means that he doesn't understand it.

If that's so, then Johnson has a lot of company. Referring to social security as a
"ponzi scheme" is quite common.

To do so is, of course, an analogy and analogies point to one thing that is like another in some significant ways even if they may differ in others. Social security is not a ponzi scheme in the sense that, unlike Charles Ponzi, the government promises nothing to those who pay into social security. You aren't supposed to get a return on your money and you have no right to a dime in benefits. The government will, in any event, probably be good for whatever it decides to pay out - perhaps even for what it currently says it will pay out - because, unlike Charles Ponzi, it has the right to take money from others.

But there is a way in which social security is very much like a Ponzi scheme. Social security has not, strictly, speaking been, as its defenders lole to say, a "pay as you go" system for a very long time. Back when Baby Boomers were young, it was absolutely predictable that paying benefits upon our retirement was going to be extremely difficult because of the absolutely predictable diminishment in the ratio of workers to retirees. In other words, there are a lot of us and less of those born after us. Demography is, in a very real sense, destiny. It is a future that has already occurred.

So, in 1986, it was decided to raise social security taxes beyond that required to pay current benefits and create a trust fund. The problem, of course, is that the money was not invested in a way that represented a claim on anything other than the government's promise to pay. It was invested in special government bonds and, essentially, used to fund current government spending. It's as if you saved for your own retirement by placing money in a piggy bank and then replacing it with IOUs to yourself so that you could spend the money.

Thus taxpayers have been paying in more than a "pay as you go" system would require in order to create a trust fund consists of nothing more than IOUs. That sounds an awful lot like a Ponzi scheme.

People like Jay who defend the system like to say that the government won't or can't default on those bonds. It certainly can. Congress could repudiate the bonds, although it likely won't. The problem - the one that Jay elides by saying that the trust fund "can pay" out benefits for a number of years - is what it would take to pay those benefits.

The trust fund can't just write a check. It must redeem those bonds, i.e., call in the government's IOU to itself. The government can't just write a check to honor the bonds because it doesn't have the money. It must either raise taxes or borrow more money. To the extent that this cannot be done, benefits must be reduced. Thus taxpayers who have paid "extra" as "we went" really have nothing to draw on. They must either forego benefits or impose even higher taxes on younger people. That sounds an awful lot like a Ponzi scheme.

Jay wants to argue that this happened because we have been "undertaxed." Johnson would presumably argue that it happened because we have "overspent." Those are value judgments about how the problem that Johnson describes could have been avoided. But the problem that he described is very real and "Ponzi Scheme" is not a bad way to describe it.

Shark at the Capitol

One important, but perhaps underreported, development in our legal world is the work of the Legislature's Special Committee on Judicial Discipline and Recusal. The committee grew out of a request from Justice Patrick Crooks for the legislature to consider amendments to statutes governing judicial discipline and disqualification. Both issues have been hot button items in the Wisconsin Supreme Court in the wake of hotly contested and exceedingly well financed campaigns for seats on the Court in the 2007 and 2008 election cycles. The committee, consisting of legislators and public members, is charged with studying both issues and, if appropriate, make recommendations to the legislature.

Yesterday, I had the privilege of being one of nine invited guests to testify before the Committee. Four of the nine witnesses were sitting Justices on the Court - Chief Justice Abrahamson and Justices Bradley, Crooks and Roggensack. The hearing can be viewed here. I am the last (or as I would prefer to say "clean up") witness.

Yesterday's hearing had to do with recusal although some of the speakers addressed matters of discipline, largely addressing issues concerning the deadlock in the Gableman matter and how that might be avoided in the future. Much of the discussion on recusal centered on whether the legislature should adopt an objective standard (presumably other than, as I pointed out, the one announced in Caperton v. A.T. Massey Coal Co.), how that standard should be enforced and what it should be.

More to follow.

Don't Get Smug

It's now official. Wisconsin will elect a Governor from Milwaukee for the first time since 1939. Nevertheless, I think anti-Milwaukee feelings will play a role in the election. If outstaters see Milwaukee as an ungovernable mess seeking favors from Madison, they may well prefer a candidate who they see as, while from Milwaukee, not "of Milwaukee." If anti-Milwaukee animus is rooted in a belief(whether right or wrong) that the city want to be bailed out by the rest of the state, then the small government candidate is likely to benefit.

At the same time, Scott Walker is in a position to make great inroads against the normal Democratic margin coming out of Milwaukee. The fact of the matter is that most people in Milwaukee County actually like the way that he has dealt with the financial mess he inherited. There is a reason that he continues to be re-elected.

Jim Doyle has not done Tom Barrett any favors. His financial juggling act may have gotten him a few points in 2006. But it's not going to help the Democratic candidate in 2010.

Add to that the Zeitgeist and a Democratic nominee who seems disengaged from the campaign, there is a strong opportunity for a change in the state house. But, for Republicans, I want to quote an old trial lawyer friend of mine. When things went well, he'd always remind us.

Don't get smug.

God and the Lieutenant Governor

Dan Bice is interested in Rebecca Kleefisch's appeal to evangelical Christian voters to pray for her. He suggests that there is, if not something wrong, at least unusual in Kleefisch's apparent intent to "rely on her conservative Christian principles and interpretation of the Bible when making decisions as a government official."

So? I would expect her to act on her sense of what is right and wrong and for most of us those concepts are religiously informed. In the absence of some indication that she is about to jettison the religion clauses of the federal and state constitution, why shouldn't she call moral questions as she sees them?

(Of course, Bice is right in suggesting that the Lt. Governor has only slightly more power than the guy who runs the Capitol newstand - at least not until the Governor becomes ambassador to Tonga.

Questions for a Tuesday

There is a great piece by National Review's editors defending the legal and cultural distinctiveness of "traditional" marriage. There is much to commend it, including its frank assessment of the notion that same sex marriage is necessary to avoid the devaluation of homosexual relationships. I was struck by the following:

Same-sex marriage would introduce a new, less justifiable distinction into the law. This new version of marriage would exclude pairs of people who qualify for it in every way except for their lack of a sexual relationship. Elderly brothers who take care of each other; two friends who share a house and bills and even help raise a child after one loses a spouse: Why shouldn’t their relationships, too, be recognized by the government? The traditional conception of marriage holds that however valuable those relationships may be, the fact that they are not oriented toward procreation makes them non-marital. (Note that this is true even if those relationships involve caring for children: We do not treat a grandmother and widowed daughter raising a child together as married because their relationship is not part of an institution oriented toward procreation.) On what possible basis can the revisionists’ conception of marriage justify discriminating against couples simply because they do not have sex?

Does this matter? Is there a response to it? Are reciprocal beneficiary schemes a response to the problems cited by advocates of same sex marriage?

Ron Johnson: A Good Kind of Scary

With the start of classes, I took an extended blogging break. But the main theme of the local political blogs on the left has continued to be saturation bombing of Ron Johnson. Ron is not a politician, lawyer or academic and has not yet mastered the art of phrasing his views in a way that will minimize the ability of his opponents to twist them with uncharitable interpretations.

His statement on global warming is an example. It is an overstatement to say that claims of anthropogenic global warming are crazy, but it is perfectly "respectable," i.e., there is lots of scientific support, for the proposition that the claim - or at least its more alarmist manifestation - is unproved. (In fact, I think you can argue that Al Gore's views on global warming are just as scientifically flawed as the weakest of the "deniers.") One might express that, off the cuff, by saying that the claim for AGW is confounded by other impacts on the climate such as solar activity or the very long term climate changes that we know occur but for which we have very little data. While it is unlikely that Greenland was "green" when Lief Erickson tried to sell beachfront realty in Baffin Bay, it was significantly warmer.

Much the same silliness has accompanied the irrelevant accusations regarding Johnson's company benefiting from industrial revenue bonds and his statement that they are not a "subsidy." There is, of course, a subsidy in the sense that, because the state will not tax the interest earned by bondholders, they are willing to accept a lower interest rate. But not everyone would regard the advantages that flow from an absence of taxation as a subsidy. My house undoubtedly has a higher value than it would if potential buyers could not deduct their mortgage interest.

One can argue that IRBs are a bad idea, but wrangling over the use of the word "subsidy" doesn't get us anywhere.

Yet another example is the uproar over Johnson's use of the term "creative destruction" - a phenomenon that all economists recognize - as if it were some radical and evil right wing plot. There is a reason that we don't have many blacksmith shops or typewriter manufacturers and it is a good thing.

Imprecise and hyperbolic statements are something that all politicians - heck all people - engage in. There is, for example, no reasonable reading of anything that Ron Johnson ever said that supports Feingold's claim that he would "turn the Great Lakes over to oil companies." Even if Johnson would support extraction of whatever fossil fuels are located in the lakes, that is a far cry from "turning them over" to "oil companies."

The point of this is to make Johnson seem stupid or scary. So far, it's not working and I doubt it will. Ron Johnson is scary in one sense, though. He's got Democrats petrified.

McCabe's "Dark Comedy" is Neither.

It's always dicey to comment on a case in which one serves as co-counsel, but I ought to at least correct the numerous errors in Mike McCabe's description of the state Supreme Court's actions in Wisconsin Prosperity Network v. Myse. These errors are quite apart from the merits of the claim.

First, it is not quite right to say that a federal court had taken the case and "started hearing it." It might have done so, but the status at the time of the Supreme Court's action is that the federal judge had declined to proceed, i.e., had refused to enter a stipulated order settling the case, until the parties had addressed certain concerns about his ability to proceed. I described those concerns here and, as someone who teaches Civil Procedure, I can tell you that they are not "mere" technicalities and are not readily dismissed.

Second, it is flat out false to say that the Supreme Court "overlooked a proposed settlement of a federal lawsuit ...." It did not. It expressly asked the parties to address how the pendency of two federal lawsuits affected the petition for original jurisdiction and both parties addressed the significance of those cases and the proposed settlement. We also addressed the fact that Judge Conley has declined to enter the stipulated order.

Third, it is flat out false to say that the Court's majority ignored "principles of comity" (although it is absolutely true that McCabe has little understanding of what those principles mean in this context). As noted above, it asked the Court to address the pendency of other cases. Beyond that, state courts do not defer to federal courts on matters of state law. It is, in fact, the other way around and one of the reasons that Judge Conley declined to enter the stipulated order was his concern that principles of comity required that the federal court stand down. (Without getting into the inside legal stuff, there is a doctrine called abstention that may well require the federal courts to step aside.)

Fourth, it is flat out false that the petitioners did not request a preliminary injunction. We did. Read our petition. The controversy was whether the Court might enter an injunction before deciding to exercise its original jurisdiction. Judge Prosser's concurrence explains why it may do so.

Fifth, it flat out false that the Court went "above and beyond the relief sought by the petitioners." Our supplemental memorandum made clear to the Court that we did not believe that the proposed settlement resolved our claims.

Sixth, it is flat out wrong to suggest that any member of the Court has a conflict of interest. There is absolutely no authority for the proposition that a justice must recuse herself from a free speech case because she might, in a subsequent election, might expect to benefit from the challenged speech. Beyond that, the type of expenditures that McCabe does not like were made on both sides of the last three campaigns and there is no reason to expect that any particular Justice would, on balance, benefit or be harmed by such speech. (In fact, one could as readily argue that all seven Justices enjoy the advantages of incumbency and would be personally served by as little campaign speech as possible.)

Seventh, it is misleading to suggest that, in not deferring to a proposed settlement that may or may not be entered, the Justices are siding with "big interest groups." The settlement was agreed to by two of the biggest advocacy organizations around (who, in my view, were clearly entitled to the relief they requested. While such groups might certainly have problems with those portions of the rule that the settlement did not touch, it could be argued that the remaining regulations really hurt small grass roots speakers who will be engaged in forms of communication other than mass media adverts.

Eigth, it is shabby and classless to impugn the motives of any member of the Court. Each of these Justices (and I include those who dissented from the order enjoining enforcement of the rule) are just doing their jobs. Some of them may get it wrong (even spectacularly so)but there is no evidence that any of them are acting for their personal benefit.

Of Mosques in Lower Manhattan

I posted on the "Ground Zero Mosque" controversy over at the Marquette University Law School Blog. Essentially, I think that the illegality of the state blocking an Islamic Center because it is Islamic is absolutely clear. I do believe that there are legitimate reasons to question the wisdom of placing the project so close to Ground Zero, but I worry about the "precedent" (cultural not legal) that would be set by withdrawal of the project in the face of public pressure. I am not comfortable with people being forced to back down from the exercise of their rights of free speech or religion as a result of public pressure and that applies to the Cordoba project as well as systematic efforts to, for example, ostracize supporters of California's Proposition 8 or boycott persons or organizations who contribute to the wrong candidate.

Perhaps the controversy could have been avoided had Mayor Bloomberg and other NYC officials recognized the potential problem earlier and engaged the sponsors on the issue or if the project's sponsors were more attuned to the legitimate concerns that the project raises and more willing to take steps to defuse them. But, as things stand now, whatever the resolution of this controversy turns out to be, it will be less than ideal.

My own sense is that, rather than call for the relocation of the project, the project's sponsors ought to be called upon to acknowledge its symbolic dangers and to take steps to diffuse them such as incorporating into the project a prominent condemnation of the concept of violent jihad (explicitly linked to 9-11) and a call for those who engage in it to repent.

Who Played the Race Card Here?

I was wondering - really wondering - what got Mike Tate so upset. What did Scott Walker do that amounted to a "calculated defiance of our state's deep tradition of tolerance ...."

It turns out that someone in his campaign tweeted a music called "C'mon, Ride the Train" and the dancers in the video were African American. There's a postracial response for you. I get it. If there are black dancers, the video is supposed to reduce the President to his race, but that's an interpretive choice and not a very compelling one.

Given our sensitivity on racial measures, I wouldn't have done it but I hardly think that the fact that some one chose otherwise is racist or "in defiance" of our tradition of tolerance.

But to help things along, I suggest that the Walker campaign use the following video.

The Future's So Bright, I Gotta Wear Shades

Cue the derision for Ron Johnson has challenged orthodoxy. In a head posted last night, the Journal Sentinel claims that, in a meeting with the editorial board, Johnson supposedly claimed that "sunspots are to blame for global warming."

It's not clear that's quite what he said. He is quoted as stating that he does not believe that there is anthropogenic global warming and that "[i]t's far more likely that it's just sunspot activity or just something in the geologic eons of time ...."

But he threw the sunspots out there and, rather predictably, some local bloggers have started to chortle.

But here's the thing. That solar activity, as measured by sunspot activity, may have an impact on climate is not a new claim and not at all crazy. The claim is that sun activity is positively correlated with temperature increases. Some argue that this undercuts claims for AGW. Others say it does not, noting that sun spot activity cycles over the short term while temperature increases have been long term. (Although still others claim that the sun has had an unusually active century.) As seems so common in this field, they argue that the "solar advocates" (for lack of a better word)have been sloppy with data. Still others seem to say that solar activity is a confounding factor or may ameliorate the impact of AGW. Some (even the IPCC) think solar activity plays a role, but argue that it cannot explain more recent warming trends.

The fact that scientists differ does not, of course, mean that each side has a point. Sorting through all of this would take time and expertise and I will guarantee you that no local blogger has done the work necessary to definitively pronounce on this.

I take Johnson to be making a more general point. Questions around AGW are complex and multi-faceted. Data is limited. There is reason to doubt that we can be as certain about AGW as an existential crisis as some would claim. There is reason to doubt that we can control climate through policy choices.

Ironically, the Journal Sentinel, in providing Russ Feingold's take, catches him committing a cardinal sin according to the environmentalist canon. His take? ""Do you notice the heat lately, my friend?"

Please, Russ, WEATHER is not CLIMATE !!!!

MMSD As A Rohrschach Test

The recent debate over the deep tunnel is largely being waged between people who are committed to a particular view, not because of an assessment of the merits of the system, but because they want to use it as an example of either government competence or fecklessness.

Thus Milwaukee Magazine's Bruce Murphy calls the debate over the tunnel "phony" and he and other commentators on the left claim that the tunnel has "worked as planned."
Commentators on the right suggest that it has been a complete failure.

I used to know a lot about the deep tunnel. I represented MMSD in its battle with the FLOW communities over how the deep tunnel was to be paid for. We wound up trying the matter before the Public Service Commission in winter of 1996 (I think I spent the better part of January in Madison) and won.

Trying the case required paying a lot of attention to the process by which the deep tunnel was approved. The FLOW communities (suburbs who receive service from the district but who are not part of it - generally the closest suburbs outside Milwaukee County) argued that they had been promised that the cost of the tunnel would be paid on the basis of volume generated rather than the value of the property served. The difference cost them approximately $ 140 million. At a celebratory dinner, one of our clients asked the waitress if she could cash (a facsimile) of the check. (Adult beverages had been consumed.)

That was the right outcome. In legal terms, one cannot assert estoppel against the government and the FLOW communities, in any event, had little recourse. State and federal regulators would never have let them make other service arrangements.

But it has created an atmosphere of hostility and suspicion. The FLOW communities argued that the deep tunnel was an bad alternative to separating the combined sewers which, and this is important, would have been the responsibility of the cities of Milwaukee and Shorewood who "own" those sewers. The suburbs believed that Milwaukee had shifted the cost of its problem to the them.

I haven't gone back to those records (they are voluminous and anyone who hasn't spent days with them hasn't really studied them) but, suffice it to say, that the public was told a number of things and one of the things they were not told is that there could still be billions of gallons of untreated sewage released into the lake on an annual basis. Although Murphy and others emphasize that certain documents projected 1.4 annual overflows and there has actually been 2.6 - down from 50 or 60 before the tunnel's construction.

That is indeed a significant reduction. While MMSD's own figures show that the reduction is less dramatic in terms of volume released into the lake, it is still very substantial. The tunnel is not a complete failure.

On the other hand, no one really thinks that it works "as planned" either. 2.6 overflow events is almost twice as high as projected and the actual volume of sewage released into the lake may be even higher versus projections.

What people disagree about is why the tunnel hasn't been as effective as planned. MMSD wants to blame something called "infiltration" and "inflow" (there is actually a difference between these two that I used to understand far better than I do today), - the fact that sanitary sewers develop leaks and take on ground and storm water.

The problem is that these concepts were not invented in 2010. The deep tunnel's planners were well aware of infiltration and inflow (I spent hours reading about it) and purported to take into account in planning the project.

The debate today over who is at fault for overflows matches the earlier controversy between the city and suburbs. Both sides are pointing the finger at the other when, actually, water is fungible. The district manages the system to try and ensure that whatever overflows occur are from the combined sewer area (you can't blame it for doing so; it's what their permit requires)but the truth is that the capacity of the tunnel is taxed by both sources of "excess" water.

So partisans of government tend to blame the suburbs and absolve MMSD. As Patrick McIlheran points out, they adopt a forgiving attitude toward the "inevitable" overflows that they generally don't show in other contexts. Imagine, for example, an argument that - given the enormous volume of oil extracted from the Gulf of Mexico - an occasional spill such as we saw with BP really reflects an admirable environmental record.

But those disposed to distrust the government overemphasize the tunnel's shortcomings. I think it's a step too far to say that it has worked as planned, but it's also wrong to suggest that it is a complete failure.

Perry And the Definition of Marriage

In response to my earlier post on Perry, Sean Samis suggests that the question is not "what marriage is for" but whether we can justify excluding same sex couples from its scope. My view is that you can't answer the latter without addressing the former. Writing in Commonweal, Rob Vischer puts it well:

More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what have we lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed non-negotiable by a broad swath of society spanning many otherwise disparate historical eras.

Of course, Judge Walker adopted a defintion of what marriage is for based, as Rob puts it, on the testimony of a singular historian. I have read her testimony. It describes certain changes in marriage law. It hardly resolves the question of what marriage is for. In fact, it would seem that the more current actions of the political brances - and of the voters of California acting by referendum - would be more significant on that question.

Perry Prognostications

In response to a post on the decision in Perry v. Schwarzenegger, a mini debate on same sex marriage has broken out in the comments. I really haven't had time to follow on them although I have started to read through the trial transcript in Perry. Since I developed a specialty in the cross examination and refutation of social science experts at Foley, I have been interested in the uses and misuses of social science in trials.

I haven't completed the transcript but the record hardly matches Judge Walker's bold pronouncements that social science has resolved a number of highly controverted issues "beyond a doubt." In fact, the transcript seems to reflect the fact that social science has resolved very few of the questions pertinent to same sex marriage.

Now the Judge has announced that he doesn't think that the defendant-intervenors can appeal. He might have been better served by declining to comment. He doesn't get to decide whether they can appeal and his pronouncement, while arguably relevant to the defendant-intervenors' request for a stay, just contributes to the general impression that he had this case decided before it started.

All of this suggests that the case is a mess. Those parties who one would have expected to defend the law of California - the Governor and Attorney General - declined to do so. The defendant-intervenors put on a curiously truncated case and the district judge relied on a very thin record to find some truly startling facts (e.g., gender is not central to the definition of marriage and has nothing to do with parenting)which, it will now be claimed, are entitled to deference on appeal. This flawed vehicle is supposed to be the basis on which the Supreme Court resolves - for all Americans everywhere - the question of same sex marriage.

The case actually reminds me a bit of Bush v. Gore. Quite apart from whatever legal doctrine required, it was an abomination with Florida proposing to conduct a partial recount calculated to favor the Democrats (even though, as it turned out, it would not have been enough to put Gore over the top). I just don't see Perry resulting in a SCOTUS determination that same sex marriage is constitutionally compelled. In fact, it wouldn't shock me if that position gets only two votes.

GAB Law Suit - What's Going On

Because I have joined as counsel in one of the cases challenging new GAB Rule 1.28, there is a limit to what I want to say on a blog. But recent developments around the attempt to settle one of the federal cases raise a set of issues not readily accessible to the general public. Here is where we are.

The plaintiffs in Wisconsin Club for Growth v. Myse entered into a stipulation agreeing that the judge could enter a permanent injunction against enforcement of part of the rule that essentially creates an irrebuttable presumption that ads containing certain types of communication are express advocacy. That part of the rule seems, as I have blogged, to be clearly at odds with Supreme Court precedent, although the stipulation did not include an admission of unconstitutionality, saying instead that the injunction would satisfy the plaintiffs claim that the rule was not authorized by the state legislature. The plaintiffs' consitutional claims would have been dismissed without prejudice (i.e., they could be filed later under proper circumstances).

For a variety of reasons, this outcome, while certainly welcome to our clients, did not go far enough to alleviate their concerns and we so informed the Supreme Court. But, at the same time, Judge Conley announced that he would not enter the injunction until the parties addressed four seperate concerns.

Two of these concerns are rather technical having to do with the subject matter jurisidiction of federal courts and the proper relationship between federal and state courts. The latter concern has to do with whether a federal court should act when there is a pending state court proceeding (our original action in the supreme court) in which important state interests are at stake and the pertinent consitutional claims may be litigated.

The second set of concerns are more related to the merits although Judge Conley's concerns suggest no particular view of the merits. The court expressed concern over whether it could enter an injunction against an administrative rule without a finding on its legality and whether he ought to do absent an opportunity for other parties to be heard.

Briefs on these questions are due next week. More to come.

State Court Challenge to GAB Rule

This afternoon, Jim Troupis (with his brother Christ), Michael Dean and I filed a petition for original action in the Wisconsin Supreme Court challenging the constitutionality of new GAB Rule 1.28. A copy of the filing is here.

The Problem With Perry

Last week, over at Point of Law, I posted on the limitations of social science evidence in the context of Perry v. Schwarzenegger. Judge Walker's decision strikes me as an obstinate refusal to understand what the advocates of Proposition 8 were trying to tell him. Yes, the decision is 138 pages but it is full of question begging and high spotting. A column over the week end by lawprawf Nelson Lund puts it well:

The judge in this case thinks it was proved at trial that same-sex marriage will not amount to a sweeping social change. He thinks it is "beyond debate" that same-sex marriages will have no detrimental effects on the institution of marriage. Can anyone really believe that such things can be proved by witnesses in a courtroom?

Lund notes, that in Walker's view, a majority of Americans, including our President and Vice President, are in the grip of an irrationality that is tantamount to bigotry.

In today's New York Times, Ross Douthat summarizes what the debate is really about:

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.

This makes same sex marriage a subject on which reasonable people can differ. The reductionism exhibited by Judge Walker obfuscates and coarsens our discourse.

Shark on Public TV

I recorded a brief segment on Wisconsin Public Television's Here and Now this afternoon. The topic was the new Governmental Accountability Board rule on issue advocacy. Mike McCabe of the Wisconsin Democracy Campaign took a differing view. By way of errata, I may have referred to the 2006 and 2008 elections, when I meant the 2006 and 2004 elections.

Suit Against GAB Is Serious

In a heartwarming union of the lion and the lamb, the Club For Growth and One Wisconsin Now have come together to sue the Government Accountability Board over a new rule requiring organizations and individuals to register and disclose the source of their funds if they spend more than $ 25 on communications for "political purposes" during a certain period prior to an election.

Mike McCabe of the Wisconsin Democracy Campaign pronounces the suit to be "baseless and frivolous." He's wrong and here's why.

It is absolutely true that the United States Supreme Court upheld disclosure requirements with respect to "express advocacy," i.e., communications that expressly call for the election or defeat of a named candidate or that can reasonably be construed in no other way.

But there are at least three problems with the application of that holding to this rule.

First, the authority of the GAB is limited by statute. It may only regulate what the legislature has said it may regulate. In this case, the statute places restrictions on communications for a political purpose which include, but are not limited to "communication[s] which expressly advocates the election, defeat, recall or retention of a clearly identified candidate.” The question becomes what else might be included in the category of communication for a political purpose.

The GAB will undoubtedly point to statutory language that says that an act is done for political purposes when "done for the purpose of influencing the election or nomination for election of any individual to state or local office ...." The problem is that, in Wisconsin Right to Life v. FEC, the United States Supreme Court rejected the idea that the presence or absence of regulation might turn on an examination of the intent or the speaker or the effect upon the audience. The uncertainty of whether a form of speech is in or out might chill protected speech.

While the regulation at issue here involves disclosure and not a limitation on the source of the funds, a court might well say that the GAB is authorized to regulate only those communications that meet the meaning of express advocacy as clarified by the United States Supreme Court.

Perhaps recognizing that, the GAB tries to both adopt and expand the WRTL's definition of express advocacy. First, it says that a regulated communication is one that meets WRTL's definition. Then, perhaps in response to the concern that such a definition would cover almost no independent communications that are actually made in the real world, it says that a communication is within that definition if it references or depicts a candidate within the relevant period and"

1. Refers to the personal qualities, character, or fitness of that candidate;

2. Supports or condemns that candidate's position or stance on issues; or

3. Supports or condemns that candidate's public record.

That is arguably inconsistent with WRTL's definition of express advocacy. While it's true that the ad in WRTL did not restate and criticize a candidate's position, it seems inconsistent with the notion behind separating issue from express advocacy to say that the former may not call upon a candidate for public office to change his or her position.

Second, assuming that the GAB is within its statutory authority, the question turns to whether the disclosure requirements burden speech. Citizens United informs, but doesn't resolve the question, in that it dealt with WRTL express advocacy. The state's interest in identifying those who are expressly advocating the election or defeat of a candidate may not be as strong as the interest in identifying those engaging in issue advocacy. CU can be used to argue that it is, but it didn't resolve the question.

One might also argue that disclosure does not burden speech. That seems wrong. The law imposes administrative costs on the speaker and subjects donors to the risk of public ostracism. We know that this burden does not render disclosure requirements facially unconstitutional when we are dealing with express advocacy. But issue advocacy is another matter.

Third, the reach of the rule is extraordinary. It doesn't merely apply to persons or or organizations who buy airtime but to bloggers and writers and people who print up handbills.

Silly Issues

The 24/7 news cycle and the pressure for pundits and operatives to produce content leads to the raising of increasingly silly issues. Here are a few.

1. Scott Walker didn't finish his last year of college. For the life of me, I can't understand why anyone who has actually experienced the last year of college would find this persuasive. Would Walker be more qualified had he spent one more year of his life doing beer stands and acing "The Goldberg Canon: Making Whoopi" and "Underwater Basketweaving."

2. Ron Johnson liked Atlas Shrugged but Ayn Rand Was Creepy Yes, she was and Bill Douglas was a jerk, Margaret Sanger favored eugenics and Clarence Darrow bribed jurors. So if you believe in the penumbral right to privacy, support Planned Parenthood or liked Inherit the Wind, don't be running for office.

3. Ron Johnson invited Charles Murray to speak about education in Oshkosh. Murray was to speak about a recent book in which he argues that education of the academically gifted in the US is deficient and that many students who are encouraged to go to college might be better served by technical education. To even suggest this apparently gives some people the vapors. So much for free inquiry and discourse.

4. Ron Johnson won't sell his BP stock. Because if he would now sell low after he bought high, that would mean that the Deep Horizons accident ... didn't ... or wouldn't ... happen or won't happen again ... because ... otherwise it's been a good deal for BP. Or maybe BP stock has the cooties. Let's all lose money on BP stock. That'll show Tony Hayward.

Local Blogger Succumbs to Stockholm Syndrome

The MMSD spent over two billion dollars to prevent the dumping of sewage into Lake Michigan without letting it into people's basements.

The deep tunnel was designed to withstand everything but the rare "100 year storm."

Turns out that storm turns out to be weekly.

MMSD now says it will take years to do what the deep tunnel was designed to do.*

But Cory Liebmann is so happy.

When he returned to the city after last week's storm, almost all of the water had drained from his basement. And, then, it took the city only hours to haul away all the stuff that got ruined. His heart is warmed by what his tax dollars have done for him.

Thank you, sir, may I have another?




*Don't even try to tell me that this is an new problem attributable to "leaks" into privately owned sanitary sewer lines. Every one was aware of infiltration and inflow when the deep tunnel was designed.

The Battle of Shirley Sherrod

The Shirley Sherrod fiasco has proven to be a story with legs and combines many of the dysfunctions in our conversations about race.

The clear villain in the story seems to be Andrew Breitbart or whomever edited the tape to leave out parts making clear that Sherrod got over her initial racial hostility and helped the farmer. Although Breitbart says he wanted to show that the crowd was reacting favorably to her description of that hostility, that doesn't justify what was done.

What Breitbart did was refuse to acknowledge the complexity of what Sherrod was saying. That's characteristic of conversations about race which generally end whenever someone decides to hurl allegations of racism.

And that is precisely what happened. The White House (and it was the White House) fired Sherrod with no questions asked. The NAACP denounced her without investigation.
Both undoubtedly did so because, while willing to charge others with racial bad faith, neither wants to be accused of it. Having contributed to a our general hysteria on matters of race, both were hoisted on their own petard.

The media - and not just the conservative media - did the same thing. Here is someone who seems to have said something that is racist. We don't let her explain. We don't consider the context. We jump all over her.

Fortunately for Sherrod, this time the story ended a bit differently. Most of the time one is accused of racism, the charge is practically irrefutable. Here the accusers quickly retreated.

That should be good news, but the hysteria continues. Now Sherrod - with her own participation - has become a political football. Two new narratives are developing. The first is that the improper accusations leveled at a black woman reflect a lack of racial progress. They do, but not in the way that this narrative wants to say. I am certainly am not prepared to declare America's racial wounds to be healed. Intemperate accusations of racism - including the NAACP's own attempts to smear the Tea Party Movement - are all too frequent.

But I'd say they reflect a reluctance to acknowledge the ways in which there has been racial progress and old paradigms of racial oppression are not as useful as they once were.

The second narrative - indulged by the NAACP, Sherrod and folks like Frank Rich - is that the whole affair was a product of the "conservative media" (not just Breitbart) and, in particular, of Fox News. But the facts don't support that. Fox was not the only network that ran with the story and it did not run it until after Sherrod was fired. If the White House and NAACP were "snookered," so was Fox News.

A Lawyer's Lesson on Johnson and Great Lakes Drilling

Some local bloggers just don't want to give up on the notion that Ron Johnson advocated drilling in the Great Lakes and then (horror or horrors!) "flip-flopped" when Russ Feingold ran an attack ad.

A little trial advocacy might help here. Johnson was asked the following question:


"

Do you want to open up more of the United States — the continental United States — to drilling. I mean, would you support drilling like in the Great Lakes for example, if there was oil found there, or using more exploration in Alaska, in ANWR, those kinds of things?"

Were this question to be put to a witness in a deposition or at a trial, many lawyers would object. The question is, we would say, "multiple," i.e., it asks a number of things - should we open up more of the Continental United States, drill in the Great Lakes, drill in Alaska generally, drill in ANWR specifically or do "those kinds of things" in general. In fact, the portion of the question about the Great Lakes is, additionally, hypothetical - would you support drilling in the Great Lakes if oil was found there?

Now a person can certainly answer all of those things, but the idea is that - in an oral exchange - it is unfair and untidy to combine too many questions into one. We can't be sure that the witness will answer all portions of the question and that results in ambiguity.

That ambiguity existed following the WisPolitics interview. Johnson answered generally - saying, without particulars, that we have to go where the oil is. Does that include the Great Lakes? Does Johnson contend that there is recoverable oil in the Great Lakes? We don't really know. Yes, the Great Lakes was specifically mentioned (albeit in a contingent way)but the answer did not specifically address them.

What Feingold did was to take this ambiguity and run with it. That isn't unusual in politics but it is hardly to be commended. What is hard to overlook is that Johnson has now resolved the ambiguity. He did not mean to endorse drilling in the Great Lakes. He does not believe that there is enough oil in the Great Lakes to justify it.

But Feingold continues to feature an ad claiming Johnson does support Great Lakes drilling.

I ask again - why isn't that a lie?

SCOWIS To Doyle: Put It Back

The merits of today's decision in Wisconsin Medical Society v. Morgan requires too much legal inside baseball for a general interest blog. The question was, essentially, whether the legislature, having said that the assessments paid by health care providers into the patient compensation fund will be held irrevocably in trust and used only for purposes of the fund and for no other purpose, can retroactively change the rules and grab the money for another reason. The immediate issue was whether this gave the providers a "property interest" in the fund that cannot be taken without just compensation.

There are, I think, doctrinal and policy reasons, based in the enacting statute and its amendments, to say that it did. I think the five justice majority got it right, although I don't think that the dissent had a few points to make.

A couple of things interest me. First, would the consequence of failing to overturn the legislative action been to justify a tax imposed only on health care providers for purpose of the general treasury. Is that OK?

Second, I am interested in the contrast between the dissent of the Chief Justice and Justice Bradley in Morgan and Justice Butler's majority opinion in Doyle v. Dairyland Greyhound Park in which both justices joined. In this case, they would have permitted the legislature to revoke an explicit legislative promise to use funds only for a specified purpose. In Doyle, they held that interpretation of a constitutional amendment to limit a right to renew gambling compacts to which neither party had any contractual right would violate the contracts clause. I am not claiming that the two opinions are irreconcilable but they suggest a tension that must be reconciled.

But these questions probably belong in another forum.

On a less esoteric level, the decision will most certainly make the legislature more skittish about raiding similar funds. And that may require a tad more honesty in the budgeting process. This would be a good thing.

And, although this foolishness, was enacted with a few GOP defections from a Republican controlled Assembly, it's going to be seen as a Doyle manipulation that came up short. Now we have another $ 200 million to make up. It will resonate because it is consistent with the public perception of the Governor. It will hurt the Dems in November.

Shark In Other Places

I never did get around to linking to my op-ed on Elena Kagan. It was another in the series of dueling op-eds with my colleague Ed Fallone. A letter to the editor last week says that I think nomininating a legal progressive is "breaking the rules." I said no such thing. It is exactly what I would expect from a liberal President. My point was simply that we ought to be clear about what is going on and, in my view, the Senate is not obligated to defer to the President's choice.

Nor did I link to my column on transit in last week's Journal Sentinel. I got a lot of e-mail on that one. The best critical points were that the economics of rail could be changed by significant increases in oil prices (agreed) and that there are reasons that rail and highways might not be privately provided. Although I agree with that too. The point is whether the benefits outweigh the cost, not whether rail is publicly or privately provided.

Finally, here is my latest Culture Con column in WI Magazine, deconstructing the President's commencement address at the University of Michigan.

Drilling, lies and videotape

It has long been my firm conviction that most political advertising is conducted in bad faith. GOP Senate candidate Ron Johnson has been drawing criticism for running an ad criticizing Russ Feingold for voting against a ban on drilling in the Great Lakes. Feingold did that, but he also voted for bans on drilling. A fair reading of his record, he claims, would show that he is an opponent of drilling. That's probably so.

But Feingold doesn't have clean hands here. He's run an ad stating that Johnson would "turn over" the Great Lakes to oil companies. The support for the claim is an answer that Johnson gave in an interview with WisPolitics.com in which he essentially said that, since we are currently dependent on fossil fuels and are likely to be for some quite time, we must extract needed resources from where those resources are. His answer did not mention the Great Lakes but the question to which he was responding is said to have used the Great Lakes as an example - although I have yet to see anyone reproduce it and it now seems to be behind WisPolitics pay wall.

It is, I think, a bit of a stretch to turn that into a stated intent to turn the Great Lakes over to oil companies. There is oil under the lakes but not enough to justify drilling for it - so they are not a place where, as a practical matter, oil "is" and so presumably not within those areas where Johnson says we must be willing to go. (Natural gas may be another matter but drilling for natural gas cannot result in oil spills which is what the Feingold ad is scaring us about.)

And even if it was fair (it is certainly legal and customary) to take an isolated remark and pack it to the ceiling, Johnson has now clarified his position. Whatever you might take from his WisPolitics interview, he's made clear that he is against Great Lakes drilling. Yet Feingold continues to feature the ad claiming that he is for it on his campaign website.

Tell me. Why isn't this a lie?

How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.
I don’t know how broad Judge Randa’s holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don’t know that.

A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa’s decision (I’ll do that later), let’s assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here’s where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not “ripe” because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa’s decision is affirmed by the Seventh Circuit (also a “lower” federal court) all federal judges in the Wisconsin will follow Judge Randa.

Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court – if not reviewed by SCOTUS – would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

The Barrett Plan: What Isn't There

Tom Barrett’s proposal for “nonpartisan” redistricting may reduce the degree of “incumbent protection” that takes place in the redrawing of legislative districts, but I think it is more interesting for what it does not do.

There is a movement in the country to have redistricting by commission according to what are generally though to be neutral redistricting principles, i.e., the creation of compact and contiguous districts that, to the extent possible, respect municipal and county boundaries and (perhaps) geographical barriers that seperate one community from another. See. e.g., California’s Voter First Act. These principles restrict discretion in redistricting and, or so the theory goes, minimize the opportunity for political maneuvering. This doesn’t eliminate contention but the establishment of physical requirements reduces the opportunity for gerrymandering to protect incumbents or to maximize the opportunities for the party in power.

That’s not what Barrett wants to do and that’s not surprising. As a general matter, Democratic voters are more concentrated that Republican voters. Contiguous and compact districts will tend to create a smaller number of heavily Democratic districts.
So Barret wants to gerrymander to “maximize” competitive districts. Depending on your theory of representation, this may or may not be a good thing. If you see a legislator as representing people who are in what is, in some sense, an organic community, then membership in that community would seem to be a fairly important principle of districting. If you view legislators as simply a vote in a national or state wide community, then trying to reflect the political balance of that community becomes more important – although that is not the objective of the Barrett plan either.

However, you do that, once you depart from physical criteria and permit gerrymandering for “competition,” the political game is back with a vengeance. There are ikely to be many ways in which competition can be claimed to be “maximized” and these ways are probably unlikely to be politically neutral.

But, more than that, Barrett wants to make sure that districts are drawn with an eye toward creating majority minority districts and this normally results in Democrat majority districts. It would, essentially, operate as an exception to the mandate to create competitive districts by permitting the packing of Democratic voters. This may or may not be required by the Voting Act and may or not operate to the detriment to the Republicans (indeed, sometimes Republicans support it because it draws Democratic voters out of surrounding districts).

My point is that it, along with requirement of “competition,” contributes to, rather than constrains, legislative discretion in the drawing of districts and that opens the door for the political battle that has traditionally been redistricting.

Another curious feature of the Barrett plan is placing the final decision – should the politicians not agree – with the Government Accountability Board. Under current law, a legislative impasse is resolved by the courts. This is not a theoretical matter. State legislative districts in Wisconsin have not been redrawn without going to court since the 1930s. Why the GAB – which is assembled for a different purpose and consists of members appointed by the political branches – is prefereable is not obvious. Why it can be expected to have the resources or expertise to

If past is prologue, the GAB will be redistricting and, under existing doctrine, will be largely immune from judicial review.

Cross posted at Marquette University Law School Faculty Blog

How Toxic is Thomas?

Pat McIlheran has an interesting find in today's Journal Sentinel, commenting on Judge Randa's underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court's Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)


Here's a more expanded version.


I don't know how broad Judge Randa's holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don't know that.


A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa's decision (I'll do that later), let's assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here's where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not "ripe" because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa's decision is affirmed by the Seventh Circuit (also a "lower" federal court) all federal judges in the Wisconsin will follow Judge Randa.


Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court - if not reviewed by SCOTUS - would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

Illegal Immigrants Are Deported Because They Are Illegal Immigrants

Language surrounding the question of immigration becomes increasingly odd. Today's Journal Sentinel runs a head stating that "More illegal immigrants being deported for lesser offenses, advocate says."

Well, the advocate did say that (although she did not use the term "illegal" immigrants), but she is objectively wrong. The persons in question are not being deported "for" the offenses that have brought them to the attention of law enforcement. They are being deported because they aren't supposed to be here.

The advocate, Christine Neuman-Ortiz, wants to "investigate." Investigate what?

More Contention on the Wisconsin Supreme Court

Today, the Court finally issued opinions on the recusal rules and the sharp divisions between the majority and minority continue. I wish that would get better. I have an article on judicial recusal coming out in the Wake Forest Law Review, so it's a subject that I have been thinking about. I have the following quick observations on the Court's decision.

First, I think that the rules on the impact of contributions and expenditures are clearly correct - as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court's decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)

Of course, this is not to say that a legal contribution or expenditure cannot be a factor - perhaps even a predominant factor - leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit it very large) independent expenditure coupled with a very significant and imminent case.

To be sure, there is much more to say about what may and may not lead to a duty to recuse - not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.

Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate - if successful - can't act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions.

In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.

Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn't seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union's membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the "something else" that may create a recusal issue.

Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn't matter that WMC or the Realtors proposed it. It it is a bad rule, it'd be just as bad if written, in the first instance, by members of the Court.

One way or another, the Gableman Case Is Over

The more I look at the writings in Judicial Commission v. Gableman, the more I become convinced that the case should be over. To suggest otherwise seems to require the Judicial Commission to do something that it cannot do, that makes no sense and that cannot alter the deadlock on the Court. Here's why.

The Abrahamson group (I refer to the two groups by the name of their senior member) purports to dismiss the three judge panel and remand the case to the Judicial Commission. As a preliminary matter, it can do neither because a majority of the participating justices have not so ordered. Ties don't count as wins.

The Abrahamson group would get around this problem by treating the recommendation as a motion for summary judgment that has, by virtue of a deadlock, not been granted and that would somehow leave the matter pending below. But that is not quite right. The motion for summary judgment was directed to the three judge panel and resulted - not in a motion - but in a recommendation. That recommendation has not been accepted but that is not equivalent to the denial of a motion for summary judgment.

It might have been akin to denial of such a motion if a majority of the participating justices had remanded the case for further fact finding. But, again, that didn't happen and it is clear from their writings that neither the Abrahamson or Prosser group believes that further factfinding is necessary. More on this in a moment.

The Abrahamson group goes beyond a simple assertion that the motion for summary judgment has been denied. It tells the Judicial Commission to treat the complaint "as if were just being filed." But it cites no authority that would permit the Commission to do so. The reason that the group wants to do this is to take the matter from the three judge panel who, in its view, got it wrong and could not reasonably be expected to do anything differently should the matter be tried. (This is because, as noted below, there appear to be no factual assertions advanced by anyone that would - or, given the reasons they have given for the panel's decision - should alter the outcome.) The Abrahamson group tells the Commission that "it needs" to request a jury (and, oddly, not only a jury but a jury of twelve - something that is not required even if a jury is properly requested).

This seems to contradict the relevant statute which provides that "before the commission files a formal complaint or a petition under s. 757.85(5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing." Wis Stat. sec. 757.87(1)(emphasis supplied) The statute goes on to say that "[i]f a jury is not requested, the matter shall be heard by a [panel ...." Id.

In this case, the Commission did not request a jury and, therefore, the matter was submitted to the three judge panel. Absent some breakthrough in quantum physics, there is obviously no way that the Commission can now go back and request a jury before the complaint was filed.

Perhaps an argument can be made to read the statute to permit a jury request at this stage in the proceeding. A realist might, after all, point out that the statute means whatever the state's highest court says it means.

And there's the rub. A majority of the participating justices has not said that the Commission may now request a jury trial. In fact, three justices have said that it may not and that alone is enough to render any such trial meaningless. Those three justices believe - and will hold - that a jury trial was unlawful and presumably will not accept any recommendation based upon such a trial.

Putting that aside, a jury trial in this case seems almost certain to accomplish nothing. No participant in the process to date - not the Judicial Commission, not Justice Gableman, not the Abrahamson group and not the Prosser group - has thought that there are any unresolved issues of material fact. What they have disagreed on is how to read the statute, its application to the undisputed facts and, in the case of Judge Fine, its constitutionality as applied to this case. If you take seriously what the Prosser group and Abrahamson group said in their writings, a jury verdict won't change anyone's mind. In fact, it shouldn't change anyone's mind.

Assume that a trial is held and a jury finds that the ad was not false. The Abrahamson group will not - and, given the rationale set forth in its writing - should not change its position. These three Justices believe that the undisputed facts establish a violation. They were willing to, in effect, grant summary judgment to the Commission because they do not believe that there is any issue of material fact as to Justice Gableman's liability. If you believe that there is no issue of material fact on the question of a violation, then the matter ought not to be submitted to a jury and any verdict that finds no violation should be set aside.

Conversely, if a jury finds that the ad was misleading, the Prosser group will not - and given the rationale set forth in its writing - should not change its position. They believe that there are no material issues of fact as to Justice Gableman's innocence. If that is what you believe, then submission of the question to a jury would be error and any verdict finding a violation should be set aside.

This is why our friend Illusory Tenant is wrong in suggesting that there are facts to be tried. The Abrahamson group tries to create an issue of fact by referring to the video portion of Mitchell's ads and three citations that appeared on the screen. These three citations were to the proceedings in Mitchell's case in the circuit court and Court of Appeals. There was no citation to the Supreme Court decision that reversed Mitchell's victory in the Court of Appeals while including citations to the proceedings below. That omission, they say, wasn't included in the stipulation considered by the three judge panel.

There are three problems with that. The first is that it is not at all clear that the video of the ad was not considered by the three judge panel. Second, the import of excluding the Supreme Court citation was addressed by the stipulation of facts before the panel, i.e., then Attorney Butler did not obtain Mr. Mitchell's release. The Supreme Court affirmed his conviction and he served his sentence. It is, at best, cumulative.

But most fundamentally, neither the Prosser or Abrahamson group found this fact to be material, i.e., they were able to resolve the case without any finding on whether the citations made the ad true (as Justice Gableman's counsel attempted to argue) or constituted some type of independent or exacerbating falsehood.

Commenting on Tom Foley's blog, Rob Henak (who brought certain of the motions to recuse Justice Gableman) offers the Abrahamson group some advice. Perhaps the problem is that the Prosser group misunderstands the impact of the First Amendment here wrongly believing that it prohibits discipline of statements that, while literally true, are misleading. Why not petition for cert and ask the Supreme Court to make clear that this is not so?

But,as Rob points out, there is no final order to appeal from and cannot be unless at least one member of the Abrahamson group crosses over and votes to dismiss - presumably because further proceedings would be futile. Beyond that, it doesn't seem like a strong case for cert. Although the constitutional issue is quite interesting, the Prosser group didn't hold the rule unconstitutional but simply construed it to avoid a constitutional problem. Construction of the rule is a question of state law and is not reviewable by the United States Supreme Court.

Even if the Court, through invocation of the rule requiring a clear statement of adequate state grounds to avoid the potential for federal review, takes the case, the most it can do is clarify what it believes the First Amendment requires and remand for reconsideration in light of that clarification. The Prosser group would still remain free to construe the statute as it has and might even invoke the state constitution in support of its construction. Given all that, it's hard to see that the U.S. Supreme Court would take the case.

I appreciate the concerns of those who have a hard time seeing why the case should be over because the Court deadlocked. The answer lies in allocation of the burden of proof. A violation cannot be established without the agreement of a majority of the Court. A majority has not agreed and, based upon the reasons given by the competing groups, never will. I think that, whatever your view of the merits, it's over.

Shark Jr. at Summerfest

Chris Esenberg performed this afternoon at the M & I Classic Rock Stage at Summerfest. He lost to a Whitney Houston sound a like. He was robbed. I am contemplating injunctive relief.



The young man enjoying his lunch at the beginning is Caleb Richard Esenberg who will be 2 on the President's birthday.

Gableman Agonistes

I am on deadline for a column in the Journal Sentinel so I can only make a few preliminary comments on the Wisconsin Supreme Court's actions in Wisconsin Judicial Commission v. Gableman. One group of Justices (Justices Prosser, Roggensack and Ziegler) would have accepted the recommendation of the three judge panel and dismiss the complaint. Another group (Chief Justice Abrahamson and Justices Bradley and Crooks)would have rejected it and found that Justice Gableman violated SCR 60.06(3)(c).

There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three judge panel is a recommendation. What happens when it is not accepted.

The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.

The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter for a jury trial.

But there are problems with that. First, the statute governing these proceedings seems to require that a jury trial be requested before the complaint is filed. That did not happen. If there is a trial, it would have to be before the three judge panel.

But, in the view of the three judge panel, there are no issues to be tried. They concluded that the complaint, either as a matter of statutory construction (for two of the judges) or as a matter of constitutional law (for Judge Fine), must be dismissed as a matter of law. Neither the Judicial Commission nor Justice Gableman believes that there any new facts that bear on the matter. If the thing that happens here is that the proceeding below continues before the three judge panel, it would presumably reach the same decision.

In saying that the Wisconsin Judicial Commission "needs" to request a jury trial, the Abrahamson group essentially wants the Commission to start all over again and do what it did not do the first time around.It is telling the Commission, "look, you lost before the three judge panel. Now that you know that, try a jury." But the rules don't seem to permit that.

Beyond that, as a practical matter, replacing the three judge panel with a jury will do not break the impasse. No member of the Court believes that the there are any material facts in dispute, so there would seem to be no reason for a jury verdict to change any one's mind. It is quite clear that three members of the Court (those in the Prosser group) believe that the complaint should be dismissed as a matter of law. A jury verdict in the Commission's favor won't change that. Conversely, there are three members of the Court who believe, as a matter of law, that the Mitchell ad violates SCR 60.06(3)(c). A jury verdict in Justice Gableman's favor won't change that.

The only way that the impasse might be broken is if the composition of the Court changes. Is it appropriate to keep the matter alive in the hope that this might happen? Is there any point in conducting a jury trial that might prolong the controversy but has little or no chance to resolve it?

More to come.


Cross posted at Marquette University Law School Faculty Blog.

Marriage Amendment Was Validly Enacted

The Wisconsin Supreme Court has held that the amendment to Wisconsin's constitution defining marriage as the union of one man and one woman and prohibiting the recognition of any substantially similar status (Art XIII, sec. 13) was properly enacted. Justice Michael Gableman wrote for a unanimous Court.

The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.

Justice Michael Gableman wrote that the legislature may "submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." The marriage amendment, in the view of the Court, had one general purpose:

"The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing "a legal status identical or substantially similar to that of marriage."

By way of full disclosure, I filed an amicus brief supporting the state's position.

Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.

It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.

Cross posted at Marquette University Law School Faculty Blog.

It Takes an Awful Lot of Nerve

I have no idea whether the tragedy at the O'Donnell Park parking structure is attributable to deferred maintenance and neither, as far as I can tell, does anyone else. To reach that conclusion one would have to know why the accident happened and then identify some particular proposed action that would have prevented it or uncovered the flaw that caused it. To simply note that O'Donnell Park has had problems or that there are proposed repairs to the structure that have been deferred tells us exactly nothing about the connection of these matters to the accident. Scott Walker says the County was aware of no needed repairs or existing problem that could have caused such a collapse. While the investigation is just beginning, no one has pointed to a single fact suggesting otherwise. It may turn out to be so, but we don't know yet.

But that doesn't mean that the political ghouls have held their fire. The Recess Supervisor seem to have jumped on it before the next of kin could be informed. The latter seems to acknowledge that there is no proof that deferred maintenance contributed to the tragedy but, the political arts being what they are, it doesn't matter. He's not exploiting anything, just providing us with a political science lesson. Tom Foley allows that while it is "perhaps" tasteless to inject politics into such a tragedy, it is inevitable so ... what the hay. He might as well get in on it.

But the worst person in the world in this regard is former Milwaukee County Supervisor Jim McGuigan - one the Board members who brought us the County pension scandal. Having been recalled by the voters for the gross stupidity that may ultimately cost a government already overly burdened with legacy costs a billion additional dollars, you'd think he'd be wandering around Brown Deer in sack cloth and ashes. But no, he authors a blog with the ironic title of "Watchdog Milwaukee." A bit late on that, Jim, don't you think?

McGuigan's defends himself by blaming others. Who would have thought to question claims that, since the stock market had gone up, it would never go down? Who would have doubted that the way to address the potential for early retirements prompted by the County's already ridiculously generous pension plan would be to make it even more generous?

I am perfectly willing to believe that at least some of those responsible for the pension mess were clueless rather than cunning. The Board may well have gotten poor advice from its human relations manager and actuaries, although the idea that one could promise the world to employees without risk to the taxpayers seems - as we say in the law - frivolous on its face.

Still, we ought to be chastened by our mistakes. One would think that, having blundered into a first class mess, McGuigan might display some humility and generosity in questioning the judgment of others.

Not for a minute. McGuigan accuses Walker of "killing off constituents to satisfy a craven lust for power." He says that "[t]onight there are two parents who have lost a son because Walker has decided that politics is more important than safety." He doesn't know - he couldn't possibly know - whether there is any truth to these allegations.

I suppose that one shouldn't be surprised that someone who voted to financially hollow out County government would not be overly concerned about whether he knows what he's talking about. What we do know is that Thursday night two parents lost their child and Jim McGuigan couldn't wait until after the funeral to politicize their loss.

Reflections on the World Cup

Every so often, we have this debate about soccer. Real Americans, we hear, don't like soccer. Even my own son says that he thought ESPN was running binary code (0010011110)but it turned out to be soccer scores.

There are some conservatives who want to say that it is a liberal's game or that there is just something, I don't know, French about it - even though the French don't seem to have the hang of it during this World Cup.

If we want to ruin sports by politicizing it, I can make an argument that soccer is, in fact, a conservative game. The overwhelming difficulty in scoring reflects an understanding that we live in a fallen world. The fact that plays are made on the fly against a changing geometry of play rather than called in the huddle or signalled from the dugout reflects the spontaneous creativity (Hayek's catallaxy)of the market and stands against the Progressive faith in the administrative state. Its unchanging - even archaic rules - reflect a Burkean commitment to tradition.

I don't like the South African vuvuleza horns either, but it is wrong to say that they are being blown "when nothing is happening." In soccer, there is never such a time. A goal can come quickly - either because of a great play or a defensive lapse - and one goal can determine - often does determine - the outcome of a match. For this reason, there is a tension throughout the game. It could be decided at any moment. Or if one team is ahead, that lead is, on the one hand, a huge obstacle but, on the other, one that might be overcome at any moment. I think the purpose of the horns - annoying as they are - is to magnify that tension.

The important thing is that the US team controls its destiny. It is through if it beats Algeria on Wednesday.

Reflections on Father's Day

I had a nice Father's Day. Had you walked into my kitchen at the right time yesterday, you would have come across three generations of Esenberg males imitating the buzz of the vuvuzela. No, I don't know why (no alcohol was consumed by either adult),but Caleb (almost 2) sure seemed to like it.

Via Kathryn Jean Lopez, President Obama had the following to say about Father's Day:

Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a step father, a grandfather, or caring guardian.

Literally, this is true. But as an endorsement of the value of family diversity, it is not. Alternative family forms can be nurturing. But the idea that these forms are "just as good" as a family headed by a child's mother and father in a low conflict marriage is not true. Social science is highly politicized but, notwithstanding elite resistance to this idea, the empirical evidence is pretty overwhelming.

The consequence of our refusal to acknowledge this is a devaluation of fathers with devastating consequences. The President recognizes the consequences of that in his own life saying that he still feels the weight of his father's absence. My own Dad left my life when I was around six and, even though I had - and, thank God, still have - a wonderful stepfather, it's something that you never get over.

The President, typically, wants to have a national dialogue on fatherhood. Good idea. Let's hope its candid and not circumscribed by political correctness.

Shark on Wisconsin Eye

Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel's Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.

We can expect to see a lot from the Court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.

There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment, Milwaukee's sick pay ordinance,* and the legislature's $ 200 million dollar "raid" on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.

* Over at the law school blog, one of Justice Gableman's outgoing clerks reminds me that the Milwaukee sick pay case, although accepted for review, has not yet been argued. We won't see it decided this summer.

Cross posted at Marquette University Law School Faculty Blog.

Indicted for Blogging?

The local political blogs are (can't really say "atwitter" any more) but interested in an apparent investigation of the left blogger Chris Liebenthal by the Milwaukee County District Attorney's office. The investigation may have been undertaken in response to a complaint by Citizens for Responsible Government suggesting that Liebenthal, who works for Milwaukee County, has been blogging on government time.

It's not clear that this is true. It may well be that the examples that CRG has made public were posted on days that Liebenthal was on furlough or had a paid day off. CRG looks sloppy on this, although it is possible that there are other examples or that there is a question whether the posts were actually written at the time they posted. (That may be why the DA wants to look at this computer.)

But here's my point. I don't know that this is worth the DA's time. I understand that one may be able to make political blogging on government time fit into an extant criminal statute, but I don't think we ought to. If Liebenthal blogged on company time (and I am not suggesting that he did or that the public evidence suggests that he did), it ought to be a personnel matter.

I thought that about the caucus scandal. I think it about this.

Of course, there is a distinction between this and the caucus scandal. Unlike legislative caucus employees, Liebenthal does not work for legislators who are inextricably involved in politics. But, in the absence of evidence, that some one has turned whatever department he works in into a political operation, I just don't see this as something warranting treatment as a crime.

And maybe the DA will agree.

But Liebenthal ought not to be surprised that some people are happy at his troubles. You play nasty (and he does), you make enemies.

UPDATE: CRG lists additional dates.

Critical Announcement !!!!

My son Christopher is a trainer for M & I Bank. He is also one of the finalists for the august title of M & I Idol. (It's a very big company!) The competition will take place at 12:30 on the M & I Classic Rock Stage at Summerfest on July 4.

And if you ever need a live band reprising the alternative rock of the 90's, book his band SuperOpus. I can hook you up.

Curb Your Enthusiasm

I've met Mike Tate and I have to confess that I like the guy. He's bright and funny and not quite the zealot that he (and most other politicos) seem to be. I have the same impression of Scot Ross.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.

The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)

As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.

Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.

The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.

There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.

Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.

I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.

But I do think Mike should be careful. This was several bridges too far.

Cross posted at Marquette University Law School Faculty Blog