Why WRTL cannot be charged.

The press is reporting that the ongoing John Doe investigation may be looking at issues arising from the provision of barbecue to voters by a liberal advocacy organization and the provision of gift cards to persons involved in "get out the vote" issues by Wisconsin Right to Life.

Tom Foley offers his opinion that the good people at Wisconsin Right to Life "must" be prosecuted by the district attorney. He's wrong.

I posted briefly on the legal issues involved shortly after the matter first became public. Tom seems to think its odd that I quoted only part of statutory language paraphrasing what comes before. Not odd at all. It happens every day and the reason I did it was because I was only concerned with the quoted language. There is no question that WRTL offered or promised or gave a "thing of value." In fact, my understanding was that they had already given the gift cards which is why I said the statute applied to "providing" a thing of value. In my understanding, that is what was done. Of course, the statute could also apply to an "offer" or "promise" but that wasn't the issue.

What I was concerned with is whether WRTL could be said to have given out these gift cards (or, if you prefer, offered the gift cards) to an elector or any other person as an inducement to get an elector to vote or refrain from voting.

The problem that I see with application of the statute to WRTL is that the gift cards were offered or given not as an inducement to vote but as an inducement for people to get others to apply for absentee ballots. Even if we can characterize the latter as trying to get people to vote, this is a huge distinction. Here's why.

Tom wants to read the statute to say that it is unlawful to offer a thing of value to a person in order to induce that person to persuade another to vote. This is not what the law says. In fact, if we were read the statute in the way that Mr. Foley wants, it would apply to any compensated "get out the vote" effort. If a political party or a candidate or even the League of Women Voters pays people to encourage or facilitate voting, they will have violated the statute. Not only is that a nonsensical reading of the statute (the law can be an ass but it usually isn't), it is a reading that would place it in dire constitutional jeopardy. The freedom of association involves, I think, the right to organize to get out the vote including paying the organizers.

As I suggested in the post that Tom keeps referring (but never responding to), I argued that the inducement - whether given directly to an elector or another person -must function as an inducement to the elector, i.e., whatever is provided to the elector or a third party must be a quid pro quo for the elector's decision to cast (or to refrain from casting) a vote.

Thus it would be unlawful for the Republican Party to give my son $ 100 in order to induce me to vote. It would not be unlawful for it to hire my son to register voters, get absentee ballot applications and otherwise participate in what politicians refer to as "the ground game" - even if he winds up getting me to submit an absentee ballot request.

There could, I suppose, be additional facts about the arrangement that make the law applicable and, as I blogged when this story broke, I would have advised that the program be structured a bit differently in order to err on the side of caution.

One More Time - Slowly

Some commenters here and lefty bloggers are in a dither about my post criticizing their own Chris Liebenthal for being less than forthcoming about his own past when discussing a current investigation of unknown persons for unknown behavior which may have something to do with political activity by Milwaukee County employees on County time or using County resources. Or not.

I don't often engage with other local bloggers (and am generally told that I should do less of it) because there are relatively few local bloggers on the left with the slightest interest in engaging in responsive and minimally courteous discourse. But I did start it and it could be that the point was too subtle. Or perhaps I failed to make my point clear so I'll try again.

First, I am not claiming that Mr. Liebenthal's conduct is the same as whatever is being investigated in the current John Doe proceeding in Milwaukee County. I am not claiming that they are similar because I can't compare them at all. I don't know who or what is being investigated in that proceeding - and neither does Chris Liebenthal, Emily Mills, Tom Foley or any one else who seems so eager to comment on it. Responding to my post, Mr. Liebenthal writes "Mr. Esenberg, we do know a lot more about Walkergate than you are indicating." If he does know more, I sure can't find it on his blog.

In fact, just about anyone who does know anything is under order of the court to keep their mouth shut. Given that there are a number of people out there who are quite loquacious on the subject, I must assume that they are complying with the law and, therefore, don't know a damn thing. A case in point is that this post by Ms. Mills which claims there to be a "seemingly shady deals between Gov. Scott Walker and his various friends/aides" and the the investigation is "circling ever closer" to Walker for whom it reeks. She then proceeds to offer absolutely no evidence for any of that.

Second, I am claiming that Mr. Liebenthal's conduct is not unlike what we do know actually happened and what seems to have prompted the investigation, e.g., the fact that Darlene Wink posted comments to the Journal Sentinel's website. It is not unlike the only specific things that Mr. Liebenthal has managed to refer to in a number of posts, e.g., a County official doing "noncounty work on county time." Everything else is what is known in the business world as a SWAG.

I do understand the natural desire to speculate on what might be going on. But in light of the nature of the limited information that is available, it seems to me that if Mr. Liebenthal wants to comment on the subject, he ought to be forthcoming about his own past. I say that only because he is the one who decided to write a "primer" on the subject in which he pulled a great deal of innuendo out of nothing more than stuff that looks alot like what he did and the fact that someone is investigating something.

Third and ironically Mr. Liebenthal himself seems to have recognized that he should say something. But what he said was not forthright. He acknowledges the complaints against him but then blows them off by saying only that the supporting documentation was "irresponsible." This implies that he was exonerated and that the whole thing is part of a narrative about Republican chicanery. The fact is that the complaints led to his suspension without pay for ten days. If you're going to mention it, tell the whole story.

Fourth, I did not claim that Liebenthal was "blogging" at work or misrepresent publicly available information about what he did. I noted that the District Attorney's office issued a statement that said he had engaged in "extensive blogging." I explained that later reports claimed that the Assistant District Attorney for Milwaukee County in charge of political corruption apparently did not know what "blogging" is and that Liebenthal had only been reading political blogs. These later reports - reading but not writing - seem to have been affirmed by the Mr. Liebenthal's superiors and apparently by the ADA himself. I linked to them - or at least to the ones that I found.

I agree that, depending on the question we are asking, the difference between reading a blog and posting a comment could be significant. But in this context and particularly when he himself brought it up, I think its close enough to warrant some mention.

Fifth, my point is not that Mr. Liebenthal did something "terrible." It is embarrassing, of course, because he has quite vocally complained that Scott Walker has slashed and burned County resources so as to impair the ability of beleaguered county employees to deliver essential services. Yet he seems to have had the time - a lot of time apparently - to do something other than attend to his job.

In fact, both now and back when the story broke, I wrote that it wasn't so terrible. In fact, I repeated in this post what I wrote before the District Attorney issued his statement. I did not think that the accusations against Mr. Liebenthal should have resulted in criminal charges whether or not he blogged at work. I thought then - I think now - that they were a personnel matter and were properly handled as such.

Let me even clearer. I don't think he should have resigned (as Wink did) and I am not even sure that he should have been suspended without pay. It actually seems a bit harsh to me. But, then again, I don't have the details. He must have done an awful lot of "reading" to get suspended for ten days.

But here's the thing. I don't know - and he doesn't know - that any of the people that he thinks are being investigated did anything worse. He doesn't know that the Governor did anything at all. When he knows something, then he can crow. But if he wants to engage in "where's there's smoke" reasoning, he ought to be complete in describing his own fire.

That leads to my sixth - and probably most important - point which I fear I did not make clear. Mr. Liebenthal and his supporters claimed in the past - and claim now - that he was disserved by a rush to judgment. As one of the commenters to my post rather crudely puts it, they became "tumescent" without having the facts. Whether or not that's so (in some cases, the conservative bloggers were merely reporting what the DA's office said), there is a worthwhile point to be preserved. One ought to be careful - and decent - in discussing unproven allegations about others. One would have hoped that Chris Liebenthal's experience taught him the virtue of temperance.

But here he is, excuse the phrase, quite "tumescent" about what he can't possibly know. He implies the Governor's involvement in whatever is being investigated by calling it "Walkergate." He pronounces the Governor "tainted" and the matter "sordid." He says that something he can't even describe is "big, very big." (In fact, so eager is Mr. Liebenthal to accuse his political opponents of wrongdoing that he suggests there is scandal in Robin Vos being in Madison on a day that the legislature was not in session. Because ... what? We wouldn't want our lawmakers to be working on legislation, meeting with other public officials or, like, actually doing their homework?)


There may turn out to be a Walkergate. But even if there does, all of this schadenfreude won't be vindicated. The fact remains that Mr. Liebenthal doesn't know that the Governor or anyone close to the Governor - or anyone at all for that matter - is guilty of serious misconduct. He only wishes it to be so just as he believes that others wrongly wished for him to be fired or carted away.

Finally, there is a suggestion in some of the comments that "everyone does it" and Mr. Liebenthal just got caught because of the actions of the CRG. He didn't do what they thought but it put him under the microscope and who among us can survive that and come out unscathed? I don't know if that's what happened here but it's a observation worth pausing over. Increasingly, we fight our political wars by trying to destroy people we disagree with. It is a rare campaign in which opposition researchers can't find some flaw in the past of the other candidate and we aren't very good at keeping a sense of perspective about these things.

I'm not sure that Chris Liebenthal has much standing to complain about this. He blogs nasty as illustrated by the fact that his reaction to an assault on a state legislator is to speculate on whether the legislator did something wrong.

But it's still worth keeping in mind.

Finally, two points of personal privilege. Those with a life can go elsewhere. Mr. Liebenthal says - oh wait, Esenberg used his Marquette address in a filing to court on behalf of a client and that must be wrong. It certainly would have been contrary to the Dean's policy. It is the preference of Marquette Law School that faculty members not publicly identify as associated with the University when representing clients and that they use an alternative address. (That is not the case with respect to commenting on matters of public policy. Quite the opposite, actually.)

But here Mr. Liebenthal once again fails to make the basic inquiries that he insists upon from others. To the best of my recollection, I never filed a document in any court that used my Marquette address. To the contrary, I specifically instructed my co-counsel that this address never be used. The incident Mr. Liebenthal refers to arose when the clerk's office used my MULS address - which it had for other purposes - in a mailing to counsel instead of the address which we had used on our pleadings. When the clerk's office typed in my name, the MULS address came up. One phone call fixed the problem.

A commenter wants to know if I ever did anything at Marquette similar to what Mr. Liebentha admitted to doing at Milwaukee County, directing my attention to MU's Authorized Use Policy which, I have to admit, I don't recall having seen before. The short answer is I don't think so.

He fails to understand that the traditional responsibility of faculty - teaching, scholarship and service - is quite broad so that it is difficult to say that much of anything is outside the scope of organizational purposes. As much as the commenter might not understand, commenting on matters of public policy was something that I was expressly expected to do at MULS. There is a difference between "political" in that sense and "political" in the sense of organized political activity that would, for example, be subject to the campaign finance laws or IRS limitations on nonprofits. I don't really do that type of thing.

Having said that, I'm sure that I used my MULS e-mail account - although perhaps not my computer or office - for purposes other than work. I may have even used it for ordering my wife flowers. People have used it as a way for people to get in touch with me on a variety of things. I don't have fixed work hours and, at least until the past few months, much of a fixed work place. In fact, the MU AUP recognizes that such things will happen and makes clear that it is a privilege to be tolerated and not a right of employees and other users.

But Mr. Liebenthal didn't get in trouble for sending e-mails from his work account. There seems to have been a bit more going on there.

More fundamentally, I'm not the one that is speculating about grave wrongdoing by others when the only thing that I know for sure is something that I myself have done. When I blog about someone's use of their work e-mail address, I'll be sure to make a note of it.

Dixi.

Wisconsin Institute for Law & Liberty

Earlier this year, I obtained funding to start a non-profit legal center in Milwaukee. The newly formed Wisconsin Institute for Law & Liberty is tasked with the promotion of the rule of law, free markets, limited government and a robust civil society. Its primary purpose will be litigation but it will also engage in advocacy and other educational activities. I am ensconced with a small - but first rate - staff in downtown Milwaukee and we have begun to represent clients.

I am not going to write much about WILL on this blog. The organization's website will be launched in the near future and I suspect it will have a blog to which I will link from here. I will continue to teach at Marquette - now as an adjunct - but my full time commitment is as the Institute's President & General Counsel. As always, I won't blog much about matters in which I represent a client.

He ought to know

Every once in a while, you see something that just seems wrong. A local blogger has apparently taken upon himself to pull together a few facts mixed with speculation and innuendo over something he calls "Walkergate." Although it is unclear just what is being investigated, he notes certain allegations that then County Executive Walker's staff engaged in political activity on county time or using county resources. There could be more - one would think that there is - but no one really knows for sure or what that might be.

Nevertheless, this blogger can scarcely contain himself. The scandal is big. It's sordid. The Governor is tainted.

Here's the strange part.

The blogger is Chris Liebenthal. The same Chris Liebenthal who himself was accused of political activity while on county time and using county resources. He acknowledges as much although he portrays himself as a victim, claiming that the documentation supporting the allegations was "very irresponsible." If you knew nothing of the matter, you'd assume he was pure as the driven snow.

But he was not. Whether or not the documentation was "irresponsible," the District Attorney's office said - after seizing his computer - that he had engaged in "extensive" political blogging at work. Later reports were that he had not "blogged" in the sense of posting to his blog but was visiting web sites with political content. Nevertheless, he was suspended without pay for ten days for what his supervisor called "blatantly disregarding" county policy.

To be sure, he wasn't criminally charged and, as I wrote at the time, I don't think he should have been - whether he was posting to his blog or not. To be sure, the County and the taxpayers had the right to know what he was doing. But any harm stemming from such activity is harm to the employer. While the applicability of state statutes might turn on whether or not he was posting - as opposed to merely gathering information. the matter was properly handled as a personnel issue.

But given that the only thing we know for sure about this investigation is that it was initiated by allegations that county employees have been accused of posting comments to the Journal Sentinel website and doing non-county work on county time, it takes a robust form of chutzpah to revel in the supposedly "sordid" and "tainting" conduct of people engaged in conduct very much like the very conduct that the reveler himself has engaged in.

At the very least and at least until we know more, one would think that a sense of self awareness, grace and just plain decency would have prompted him to acknowledge that he too succumbed to the temptation to pursue other activities on work time.

It is quite possible that the investigation will result in allegations of misconduct far worse than anything Chris Liebenthal was accused. (Given the resources being devoted to it, I would certainly expect that they should be looking for more than that.) Still, the idea that Mr. Liebenthal should be the left wing blogosphere's face for probity on the government clock seems a bit odd.

Just so you know

There has been some controversy recently over the response of Dane County authorities to protest activities that seem to be at the edge of - or somewhat past the edge of - lawful conduct. I don't know although I am not reassured when these authorites are unable to defend their conduct without adding condemnations of the Governor's policies. That sort of steps on the message of dutiful impartiality.

I do think that last week's dumping of beer on Senator Robin Vos should have been charged as criminal disorderly conduct- a class A misdomeanor. It was calculated - a step beyond two guys who toss beer at each other in a drunken argument or the woman who splashes wine in her boyfriend's face when he tells her that he wants to "see other people."

But probably no more. Battery requires the causation of bodily harm and I can't see that a beer shower qualifies.

But here is some free legal advice to the vuvezela and chant crowds. At last weekend's BobFest, noted Black Helicopter theorist Greg Palast suggested that one should drink the beer before pouring it on a Republican.

This is funny, you see, because if you drink the beer then you can only pour it on someone by urinating! It's not really beer anymore! That Pakast guy is on fire!

But here's the rub. There is case law to the effect that the act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999) That'd be a Class A misdomeanor and, if a prosecutor decides and a jury is persuaded, that the harm is substantial, you're looking at a Class I felony.

It's your call.

Here's another way to look at Medicare

Proponents of a greater role for the state in the provision of health care love Medicare. They say it's cheap (even as it heads for bankruptcy) and popular. Indeed, my guess is that much of the President's reelection campaign will be driven by MediScare.

But Medicare is a mess driven by a hidden subsidy. In discussing Netflix' problems with its provision of free or inexpensive streaming, Megan McCardle sums it up. Netflix could obtain licenses for content inexpensively as long as it did not threaten providers' normal distribution channels. Those channels would cover the average cost of producing content and, as long as Netflix paid more than the marginal cost of providing the content to it, licensers were happy to accept the additional revenue. A great deal for Netflix but not one that could be extended to the marketplace as a whole. She writes:

You can get a sweet deal if you are the customer who gets marginal cost pricing. Medicare does this--reimburses hospitals at above their marginal cost, but below their average cost, so that private insurers have to pick up most of the hospital overhead. European countries do this with prescription drugs: reimburse above the marginal cost of producing the pills, but below the total cost of developing the pills, so that the US has to pick up most of the tab for drug development.

But just as providers of content cannot extend Netflix' pricing to the rest of the market, Medicare cannot become the model for the entire market.

Obama's Misinformed Policy

Democrats like to call Republicans "the stupid party" often because conservative politicians refuse to accept controverted propositions - the efficacy of Keynesian economics, the existential nature of global warming - that Democrats want to regard as "settled." Sometimes, however, conservative politicians do make claims that are not true as all human beings tend to do.

But President Obama is making policy based on assertions of a fact - the rich pay less in income taxes than ordinary Americans - that does not bear the slightest scrutiny. It is simply not true.

Perhaps our tax system is not progressive enough. Try to make that case, but at least get the data right.

Of course, it is true that capital gains rates are taxed at a lower rate than ordinary income - this is the source of the tax break for those dread "hedge fund managers" - all 193 of them. There is economic theory justifying differential treatment of capital gains. I tend not to buy it. I think that all income should be taxed when it is realized and at the same rate regardless of source. But even under my view you have to adjust the basis so that only "real" gain is taxed. But the idea that our tax system "favors" wealthy people is not rooted in reality.

Having established that, the proposal to raise taxes on higher income earners in order to avoid reductuins in entitlements reduces to the argument that they can "afford" to give the rest of us some money. Why isn't that class warfare? It is nothing more than the assertion that some people have more than they need and rather than appeal to their charitable impulses, the "excess" should be taken from them by legal compulsion which, of course, ultimately reduces to threat of force.


The moral superiority of this position - supposedly reflected in Wolf Blitzer's "gotcha" question to Ron Paul - is not self evident. Christians certainly are charged with concern for the poor but one cannot discharge that moral obligation with other people's money.

Having said that, unlike Paul, I am not a libertarian and I think that, if for pragmatic reasons alone, a social safety net supported by moderately progressive taxation is appropriate. But no one really disputes that.

Poverty and the Fifties

In response to a post here last week showing that poverty fell more rapidly in the fifteen years prior to the initiation of the War on Poverty than it has since then, a commenter asserts that this was because we were "enjoying" the impact of government funded World War II and the Marshall Plan as well as "injection" of money into the economy through construction of the interstate highway system.

The idea the World War II "ended" the Great Depression through some type of Keynesian mechanism is quite dubious but let's review the bidding on our commenter's claim.

Federal spending as a percentage of GDP was averaged 17.8% during the period from 1950 through 1965. Since then, as poverty has remained relatively stable, it has averaged 20.9%.

Let's look at another way. From 1950 through 1965, nominal federal spending increased 77%. Between 1965 and 1980, it went up 399%. From 1980 through 1995, 156%. From 1995 through 2010, 161%.

The post war period was indeed unique. US businesses were largely immune from global competition since the rest of the industrial world had been largely laid to waste. That was not entirely a good thing but it did have positive ramifications for unionized oligopolies like the American automakers. But the notion that it was the halycon era of big government funded prosperity seems wrong.

The commenter says that the chart shows that poverty is hard to eradicate. That is my point precisely. More to come.

Can the Brewers blow it?

They are on pace to do precisely that. On September 5, they lead the Cardinals by 10.5 games. In the ensuing week and a half, they have lost almost half of that lead - five games - while playing only eight times. In those eight games, they have never scored more than three runs and only managed that twice. They are averaging all of two runs per game over that stretch.

They not only can blow out it, they are well into the process.

Poverty is winning

This is an extraordinary chart showing a rapid fall in the poverty rate that more or less ended with passage of the War on Poverty. Since then the rate moves up and down within a relatively narrow band in correlation with the general performance of the economy. Of course, past results are no indication of future performance and it is not at all clear that the poverty rate would have continued to decline. But Vietnam was not the only war that LBJ escalated and lost.

Lena's Law

Godwin's Law states that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1 (100%)." A corollary - often itself called Godwin's Law - is that resort to the Reduction ad Hitlerum results in immediate defeat.

A commenter at Marginal Revolution suggests there be a version of Godwin's Law for invocation of the Koch Brothers. I want an analog to the corollary. Anyone who drops the K-bomb loses the argument. We'll call it Lena's Law.

Pass the My Job Act Right Away

Whatever the Jobs Act is about, it isn't jobs. At least not for anyone but President Obama.

We have been having an ongoing debate about the efficacy of Keynesian stimulus in our present economic circumstances. There are those who buy into a relatively clean version of the Keynesian orthodoxy that I learned in introductory macroeconomics thirty years ago. At the risk of oversimplification, the idea is that there is inadequate demand so the government should "inject" money into the economy by borrowing it and that this will cause those who are sitting on their money to change their behavior.

There are all sorts of reasons to think that this won't work in the great run of circumstances and the recent repeated failure of massive stimuli in the form of both spending and tax cuts to have any discernible effect ought to give substantial pause to those who call for more of the same. There are, of course, studies that claim the administrations' 2009 stimulus "created" varying number of jobs at a staggering cost. Other studies claim otherwise and the fact remains that stimulus has not delivered as promised.

But lets put that aside. Keynesian stimulus is not supposed to be "paid for" - at least not during the period in which it is supposed to work its magic. Raising taxes reduces the supposedly stimulative injection of cash into the economy. So Obama's plan to pay for temporary tax cuts and spending with permanent tax cuts is a category mistake. It steps on the (dubious) job creation part of the Jobs Act.*

This gives the game away. The Jobs Act is nothing more than a tax increase. Because the increase is limited to those "millionaires" who earn a quarter of a million and is paired with goodies for everyone, it is intended not to create jobs but political talking points. Republicans will oppose the scheme because it will contribute, as the Wall Street Journal points out, to a tax cliff in 2013. They believe - correctly in my view - that it will create disincentives to economic growth both because of marginal rate increases and further regime uncertainty.

Obama knows that but the objective here is not to create jobs but talking points.


*One could argue that transferring money from higher to lower earners will increase the velocity of money, i.e., the lower earners will spend it while the higher earners would not. This requires quite a few dubious assumptions and, as Megan McCardle points out, is pretty weak tea.

Shark in WI Magazine

My latest Culture Con column in WI Magazine is here. In the same issue, George Lightbourn has a lengthier piece developing the same point. George and I do not consult and we do not compare notes.

Murphy's take on the law not quite right

I was in Madison for the first day of the state Supreme Court's 2011-2012 term, arguing on behalf of the petitioners in Wisconsin Prosperity Network v. Myse. I am happy to report that the Court was fully able to function as a court with the Justices, who seemed well informed, attending to arguments and asking questions. Perhaps the rest of us can focus a bit more on the law and a little less on the drama.

But before I go, I see that Bruce Murphy is just not impressed with Ann Althouse and me. He thinks we apparently had no basis for criticizing Bill Lueders early report of the incident between Justices Bradley and Prosser and think events have somehow vindicated that view.

Here's the thing. Lueders' report was superseded within a few hours by a much more comprehensive report by the Journal Sentinel that placed the incident in an entirely different light and, as it turned out, was a far more accurate description of the event. Although Murphy says I failed to marshall facts in support of my criticism, the conclusion that offends him was immediately preceded by an argument that the almost contemporaneous reports of the view of more than one witness were much different than Lueders' initial report.

Of course, I am not saying that Lueders is a bad reporter. People in a position to know speak well of him. I just thought that this report seemed to be rushed out and was almost immediately shown to be incomplete.

In the same piece, Murphy reports some old news from a very good reporter, David Ziemer at the Wisconsin Law Journal, to the effect that Justice Crooks often joins with the conservative majority and, therefore, people who claim that there is a 4 to 3 liberal split are dumb, piling on Professor Althouse again.

I agree that Justice Crooks is less firmly in either camp than some of the others, but you have to look at a much smaller subset of cases to address the "liberal" v. "conservative" issue since not all cases present an occasion for that divide and, in some, it is much more salient than in others. Depending on how you define that universe cases, the description of a 4-3 split - while always only a rough approximation of a complicated reality - makes some sense.

Of course, I always try to qualify identification of judges as "conservative" or "liberal." These descriptions are not wrong but they aren't the same as when used in a nonjudicial context. They don't necessarily lead to results favored by the conservative or liberal political camp and judges operate in a far more constrained environment than politicians.

But Althouse and others are not wrong when they speak of a 4-3 split and no lawyer who actually practices public law in this state would dispute it.

What Started the Argument - A Correction

One of the talking points on left-leaning blogs is to cluck about the fact that the disagreement that lead to the confrontation on the state Supreme Court was about when the Court's decision would be issued. It is, they say, somehow indicative of a lack of judicial independence that the majority wanted the decision out quickly because the state wanted it out quickly as revealed by, in addition to submissions to the Court (which the critics ignore), public statements by certain legislators. They cite statements by the dissenting Justices that the Court operates on "court time" and not "legislative time."

The critics are wrong.

It is not at all unusual - in fact it is admirable - for a Court to recognize that a matter before it is time sensitive, i.e., that asserted rights will be lost if a decision is not issued by a certain date or before a certain event. That was the case in Ozanne. If it was not decided by sometime in mid-June, the claim that the circuit court had interfered with the constitutional prerogatives of the legislature would have been mooted. Because of the looming deadline for passage of a new budget, the legislature would have had to take up the collective bargaining reforms for a second time. But the claim in Ozanne was that the reforms had been properly passed and that it was a violation of separation of powers for the circuit court to declare them to be invalid and enjoin their enforcement. In other words, the case had a shelf life.

There is nothing wrong with a court recognizing this and attempting to act promptly so that the rights of the parties will not be lost by the mere passage of time.

Shark on Public TV

Last Friday, I did a segment on Wisconsin Public Television's "Here and Now" regarding the law suit filed by the Madison teachers union and others raising state constitutional challenges to the collective bargaining bill. You can see it here.

The exchange gets a bit interesting at the end when I upped the ante a bit by referring to the argument that Act 10 interferes with public employees and rights of association as "Orwellian." I chose the word carefully. Mandatory dues or even fair share agreements force dissenters to support activities and political expression with which they disagree. ("Fair share" allocations generally turn out to support a lot of expressive conduct and many dissenters have an objection to collective bargaining per se.) Even forcing dissenters to "opt out" gives unions an enormous advantage over other expressive association.

Under Act 10, public employees remain free to associate for purposes of political expression. But the unions - as a potential vehicle for such association - are going to have to convince those employees that they ought to contribute to such expression and arrange to collect their voluntary contributions just as every other expressive association must.

Experience in other states tell us that vast numbers of public employees will decline to do so. That's not good for the unions but it seems like a vindication of associational and expressive rights which, of course, include the rights not to associate and not to speak.

Public charges and conferences

Having reviewed the transcripts of interviews with the Chief Justice and Justices Bradley, Prosser and Gableman, it is not surprising that no charges were issued. While the perceptions of the various witnesses differ, they tend to depart on very subjective points in which the witness characterizes the volume of someone's voice or the rapidity with which an action was taken - although there does seem to be disagreement as to whether Justice Bradley's fist was raised. Somewhat differing versions are not unusual in a case like this. What seems clear is that the Justice Bradley got in his face and he placed his hands on the sides of her neck to either push her away or halt her advance. There was no "chokehold."

Neither one of them behaved at his or her best. We all have our moments but it still would be nice if they would a issue a joint public apology. I don't think that's likely.

It is unfortunate that this became public and sad that it has and will continue to be used for political purposes. I hope that the justices can come to see that leadership entails backing away from this type of confrontation and getting to a point at which some measure of collegiality is possible is more important than scoring debating points or gaining strategic advantage.

What I don't see leading to that is making decision conferences public. Judicial decisionmaking requires deliberation aided by frank and open discussion. Althouigh decision conferences end in a vote, it entails an iterative process in which the judge reconsiders his or her preliminary or earlier expressed views. In the end, the rationale for a decision is expressed in a fully considered opinion. Forcing the justices to make their intial thoughts public will tend to short circuit the deliberative process and to inhibit frank discussion. The inability of members of the Court to get along is deep and pervasive problem that can't be solved by the simple expedient of open conferences. Sanitizing those conferences - and that's what making them public will do - wont' make it go away.

Rick Perry channels Thomas Paine

First, I don't think Rick Perry should have said that printing more money would be treasonous. We need less of that kind of talk. But look at this. Ralph Benko , writing at Forbes, reminds us of Thomas Paine opposition to fiat money. Acccording to Benko, Paine wrote:

“As to the assumed authority of any assembly in making paper money, or paper of any kind, a legal tender, or in other language, a compulsive payment, it is a most presumptuous attempt at arbitrary power. There can be no such power in a republican government: the people have no freedom — and property no security — where this practice can be acted: and the committee who shall bring in a report for this purpose, or the member who moves for it, and he who seconds it merits impeachment, and sooner or later may expect it.” “… and the punishment of a member who should move for such a law ought to be death.”

(emphasis added).

Interesting little factoid.

On chanting in Greenfield

I am a graduate of Greenfield High School and so I took special notice of the fact that police were called to a school board meeting. I haven't lived in Greenfield for over 30 years but it's always been a rather colorful community.

Apparently the problem was that the number of teachers who wanted to attend a meeting in which the board would consider work rules exceeded the capacity of the room. The board felt it could not change the location because of requirements of the open meetings law which, of course, requires notice of a meeting's location. In response, the teachers started to chant and shout but order was ultimately restored.

This prompts me to ask a question that I have asked before: What's with public chanting?Do we really think that, if we repeat the same silly doggerel over and over again we will finally persuade someone? Or is this just the adult (and political) equivalent of a child's temper tantrum?

Global warming, facts and disagreement

Megan McCardle channels Jonathan Adler on the politics of global warming. I agree with McCardle and New Jersy Governor Chris Christie in taking a more nuanced approach. Human activity has probably contributed to global warming but the extent of the effect and prognosis for the future is unclear, but unlikely to be anywhere near the Gorean nightmare. Many of the proposals to combat warming cannot be justified on the basis of their costs and benefits.

Of course, that's hard to translate into partisan politics and sometimes I think the obstinence of the right is caused by the fascism of the left in which no discussion of the facts or the desirability of remedy is regarded as legitimate. But the real problem, as McCardle points out, is choosing facts to fit a predetermined position.

Being honest about the facts doesn't mean that we'll all agree or that the "middle" view is always correct. Reasonable people disagree about the facts and is that disagreement - and not someone's moral character or self interest - that makes for political disagreement.

Irish Fest Sunday

My column in the Milwaukee Journal Sentinel is here. But enough of The Troubles, it's Irish Fest.

Walker: Winning!

I'll have a column in Sunday's Journal Sentinel on the recalls. Both sides are claiming victory but there are two telling facts. The first is that Republicans are happy with the outcome and Democrats are not. That shouldn't surprise anyone. You don't spend millions and millions of dollars to pick up two Senate seats.

Second, when Obama overreached he lost a house. The supposedly "historic" Wisconsin recalls were outperformed by the ... Tea Party!

To be sure, the Dems drew some blood. The Walker reforms are controversial and step on the toes of some very powerful constituencies. When you can cherry pick Republicans in the most vulnerable districts and then bring national money to the table, you ought to be able to draw some blood. But the bottom line remains.

Governor Walker stuck to his guns and has, so far, surivived everything the left can throw at him. That is, in the words of Charles Sheen, winning.

London Calling

I missed the riots in London. All I got to see was a heavier posting of the Metropolitan Police and a lot of thumbsucking on the BBC and Sky News. Cable news is the same all over.

If you've followed the story, you know the debate. Labour wants to blame cuts and inadequacies in social programs. The Tories point to an initially inadequate police response (that it was inadequate seems indisputable although who is to blame for that is another question) and cultural breakdown. We've got the same debate over unrest here although the social welfare state in the UK is far more extensive than ours. There may be a lesson in that. The value of handouts evaporates.

One thing that surprised me, however, is how much of the rioting was videotaped. There are apparently 60,000 cameras around London - 7000 operated by the government - and these CCTV cameras caught a lot of the action. Broadcast of the faces caught on camera has led to some arrests but it's too little too late. The "yobs," as they are often called in the local press, often wear hoodies and bandannas. The riots in London ended when Scotland Yard annnounced that they were going to put 16000 cops on the street.

Celebrating across the pond

I enjoyed the election returns from England. Beyond the pros and cons of the Walker reforms and budgets, I think it's a good thing that control of the legislature did not flip based on a policy choice by a newly elected majority, Had the thing gone the other way, I think it'd be a long time before any administation in this state would have made any tough decisions.

But enough with the common good, who won? Upon my return, I was astonished at the lengths to which the local left has gone to claim victory. They do have something to talk about. They did pick off two Senators. Pending the outcome of today's recalls, the new Senate is not as reliably conservative but we shouldn't make too much of that. While it may preclude significant movement on the Walker agenda, that was unlikely in any event. The legislature tends not to do all that much once the biennial budget has been passed.

On the other hand, the August recalls were almost custom made for the public employee unions. A special election in the middle of the summer maximizes the advantage of those who are highly committed to a particular outcome and who can run a great ground game. This is where the unions are supposed to excel and they went all in. The point of that was not to make Dale Schultz the swing vote on a handful of potential issues, it was to obtain a repudiation of the Walker agenda that only flipping the Senate could deliver. Notwithstanding the help they got - Randy Hopper's personal immolation and the failure to field a credible candidate against Dave Hansen - millions and millions of dollars devoted to class warfare did not even return us to the pre-Walker Senate.

That's failure.

Much ado about nothing

Another point on the "fraud" stuff. As I blogged earlier this week, I don't know who AFP sent its supposedly "fraudulent" absentee ballot application requests tom but I do know that at least some of the the breathless indignation over the matter is largely borne of a failure to understand how political organizations work.

There is apparently consternation over the fact that AFP's request listed the "wrong address" for voters to which voters should return their applications. The address turns out ot be a post office address held by Wisconsin Family Action.

It was not the "wrong address." These organizations send ballot applications to persons who they have identified as likely to be sympathetic voters. They ask that the applications be returned to a "processing center" which is something that they set up to then send the applications to the various municipal clerks. As I understand it, the reason that they do this is so they can provide voters with something that is almost effortless to fill out and return. In addition, it tells them who has requested the ballots and they can then use that information in their ground game and in future elections.

In all cases, the goal is to have these requests made by people who they believe will support their candidates. I have gotten numerous ballot application requests that are to be returned to "Box 1327" in Madison and these requests are generally accompanied by some content likely to appeal to conservative voters. Dane101, for example, in its "expose" notes that Wisconsin Right to Life sent out requests to be returned to Box 1327.

So it did. It is just to my right as I type this. It urges me to return the request in order to retain a pro-life majority. I am pretty sure that it is not an attempt to keep Democrats from voting.

But, Dane101 notes, didn't the mailing go to at least two card carrying Democrats?

Sure. Almost all mailings by almost all advocacy groups go to people who disagree with them. I know that AFP mailings, for example, go to people who are not "AFP members" because I get them all the time and I have never joined AFP. People routinely sign up for the other side's stuff or do something that gets them on the opposition lists. I get e-mails and mailings asking me to "fight for a Democratic majority." I don't know why and, if some of the people whose names are attached to those mailings knew they were being sent to me, they'd be mortified. I didn't request any of them but I guess I did something that causes them to come to me.

Apparently even Steve Colbert fell for this. I have always found Colbert to be predictable and sophomoric- anything but the smart and edgy guy that he's supposed to be. Thre are comedians who are funny even when they say something you disagree with. Jon Stewart is one. Colbert,a at least what I've seen of him, is not. Here's a little example of why tha may be.

There is reason to be upset about the AFP mailing because they still screwed up the dates. But the reason is not fraud. It is error in a very tight election cycle. And the people who ought to be upset are not liberals but conservatives.

One of these things is not like the other

So what about allegations of Wisconsin Right to Life providing gift cards to people who obtain absentee ballot applications. Isn't that just the same as "ribs for votes?" Am I going to condemn that? Hypocrisy! Hypocrisy!

Well, no, I'm not condemn it because it's not the same thing. The statute prohibits providing a thing of value "to, or for, any elector, or to or for any other person, in order to induce any elector to ... [g]o to or refrain from going to the polls." "Let's work through it.

Let's get pass the easiest part first. WRTL, unlike Wisconsin Jobs Now, did not provide anything of value to an elector. It is offering something to a volunteer for getting out the vote of others. But couldn't we argue that they have provided something of value to "any other person" in order to induce an elector to vote.

I don't think so. First, it requires us to ignore an intermediate step that breaks the connection between the offer and the decision to vote. The offer is being made to someone other than the voter to induce her to do something other than vote. Additionally, such an interpretation would, as we say, prove too much. It would preclude providing anything of value to anyone in return for getting out the vote, including paid canvassers.

I would have advised WRTL not to allow volunteers to count their own absentee applications or those of their immediate family members in the number required to get a gift card. I don't know that they did that and I'm not suggesting that, if they did, the scheme is illegal. An absentee ballot application is still removed from voting in the way that a ride to the polls is not. But I think that would have been an appropriately conservative thing to do.

Shark on Dead Tree

My Milwaukee Journal Sentinel column on the recall elections is here.

I note from the comments that one local blogger seems to think that its incongruous that I would criticize campaign ads for being inaccurate since I supported (actually I voted for) Mike Gableman. The fact is that I criticized Gableman's Reuben Mitchell ad at the time it was run. In fact, my criticism - and that of Charlie Sykes - were cited by Rob Henak in support of his motion to recuse Justice Gableman in the Allen case.

Swilling the Voters with Bumbo

You've got to give 'em credit. The "Ribs for Votes" scheme has a long pedigree. According to Tracy Campbell's book Deliver the Vote: A Historuy of Election Fraud, An American Political Tradition - 1742-2004, both Washington and Jefferson tried this type of thing. Back then, swag was provided at the polls. According to Campbell, Washington, in running for the Virginia House of Burgesses in 1758, spent nearly 40 pounds (real money back then) for gallons of wine, rum, brandy and beer. Washington's only concern was that his campaign manager had "spent with too sparing a hand." I turst that WisconsinJobsNow - whoever that may be - will not make the same mistake.

Jefferson dis it too, buying liquor for voters in his own race and anticipating the lame excuse offered by today's offenders. He saw the hootch as a reward for those who had taken the time to travel to the polls (which were often quite distant) and vote. A bit more convincing than the contemporary dodge that barbecue and prizes are a "celebration of voting" - but not much.

Still the Founders were not all in on this. Madison refused to do it in is 1777 race, calling "swilling the planters with bumbo" a "corrupting influence." He must have been right because he lost that race.

But he won the argument and, as has been pointed out, this practice, however old, is illegal. Sec. 12.11(1m)(a)1 applies to anyone who "[o]ffers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, ... to, or for, any elector, or to or for any other person, in order to induce any elector to ... [g]o to or refrain from going to the polls." Do this and you've committed a Class I felony punishable by a fine of up to $ 10,000 and imprisonment of up to 3 and a half years - more if you've got record.

The organizers of these bribery parties say that they're in the clear because someone could come to the party, take the goodies and not go vote. The GAB disagrees and it does seem that the events offered and gave an "inducement" to vote.

There is no way to unring the bell and it is extremely unlikely that this type of fraud would ever justify setting aside the results of an election. That almost never happens.

Because the electoral consequence cannot be avoided, it would seem to present a rather strong case for vigorous prosecution. It is also essential, in political cases, that where there is a clear violation of the rules, officials act quickly. To do otherwise is to essentially excuse the violation and encourage more of this type of thing in the future.

But there may, moreover, be a political price to pay. I see an ad about out of state special interests bribing voters. Not pretty.

Are GAB's chickens coming home to roost?

I have no idea if Americans for Prosperity or the Democratic Party were trying to mislead people on the date of the elections. But there is a certain irony that complaints about whether they have done so will go to the Government Accountability Board. The GAB's breathtakingly bad decision to bifurcate the recalls on a partisan basis is not a necessary condition for that kind of mischief, but it certainly enables it.

It also makes it possible honest errors about when to vote.

I don't think this is the last we'll hear of confusion and accusations of trickery related to the dates of the recalls. I'm not accusing the GAB staff of partisan bias but I do think that they were guilty of very poor judgment.

Budget Deal is OK - for now

The pending debt deal is small ball. That's what makes the angst over its passage so astonishing. Cutting two trillion dollars in spending over ten years - if we really are cutting that much for in the fun house world of Washington accounting it's tough to know - is not trivial but it leaves the largest challenges untouched. That it took this much to get that little may be seen as an indictment of our political system, but I regard it as an indictment of the Democratic Party.

It's a popular Democrat trope about now to wonder "what happened" to the Republicans. In yesterday's New York Times, Tom Friedman gets misty for George H.W. Bush for being the kind of Republican who supports what liberal Democrats want to do. He believed in math and science, says Friedman. Friedman's math apparently requires that government spending not be permitted to fall below a certain percentage of GDP and that budgets may not be brought into balance without tax increases. His science admits only of the more extreme views on climate change and requires that we ignore insights from economics and political science which suggests that a cap and trade scheme on something as pervasive as carbon emissions is likely to be a disaster.

The problem with Republicans, we are told, is that they just won't raise taxes even on rich people who, being rich, don't need whatever additional money "we" may decide to take from them. The problem, of course, is that we already have a highly progressive tax system in which a large percentage of the population pays no income tax. Upper income persons already bear a substantially disproportionate share of the tax burden. While I suspect that some tax preferences will have to be looked at and that it may be inevitable that the Bush tax cuts will be permitted to expire for some upper income taxpayers (although, hopefully, not for those "millionaires and billionaires" who earn $ 250000), this is largely a spending problem and Republicans were right to take tax cuts off the table given the relatively modest spending reductions under consideration.

But, in the end, I agree with Charles Krauthammer and others who argue that this is the best that can be done for now. You cannot govern from the House of Representatives. It is amazing that Republicans were able to accomplish what they did. They have as Nicole Gelinas points out, demonstrated that "[w]e can’t spend what we plan to spend in the future without harming the character of the country." As Victor Davis Hansen observes, they have returned reality based views to the budget debate and largely rendered President Obama irrelevant.He and the Democrats became the "party of no" without a coherent vision of their own. We now that they don't like Paul Ryan's Roadmap or, presumably, any variant of that approach. We still don't know what they do like other than to continue the unsustainable.

Law & Neuroscience

The announcement of a joint degree program in law and neuroscience is fascinating and will be of great interest to a number of lawyers such as my friend Ralph Weber.

Further to our discussion about moderation, though, it seems to me that this is yet another battleground in the culture wars. Neuroscientists are increasingly likely - may even be hard wired - to see behavior as biologically determined. This has all sorts of implications for the law but may strike others as a reductionist materialism justified by a patina of scientific objectivity.

My bet is that there will be interesting things thrown out by this undertaking.

Political Rorschach Test

Speaking of the Sunday Times, this article about a tax on soft drinks is sort of a political Rohrschach test, no? If you wonder whether your instincts are "progressive" or conservative, read it and assess your reaction. The more silly you find it to be, the more conservative you are.

Against Moderation

As I've written before, one of my guilty pleasures is the Sunday New York Times = occasionally while sipping French wine. Mostly, it's the nonpolitical stuff and the ability to read a paper that still has the resources to produce content. But the Op-Ed section has its allure. In particular, the crew of Tom Friedman, Nicholas Kristof, Maureen Dowd and the recently decamped Frank Rich offer a parody of the liberal commentariat - so much so that I am occasionally startled that someone might write such things. (Paul Krugman's column does not run on Sundays and is past parody.)

Sunday's column by Tom Friedman declaring the end of two party system is a perfect example. It is Friedman's particular and consistent conceit that, if only we could get past politics, public policy could be made by the right people who attended the proper schools. One of the refuges for people who share that belief has always been hope for a third party that would somehow be free of the ideological divides that keep the obviously necessary from getting done.

Our recent political history is littered with the casualties of this delusion. See, e.g, John Anderson, Ross Perot, Colin Powell (who was smart enough not to actually try it), etc. The problem is that political conflict exists because there are real differences of opinion that are not simply the result of extreme and simple views. Republicans are resisting raising taxes because they believe that the spending cuts offered by Obama are illusory and that marginal tax rates are high enough. Democrats are resisting entitlement cuts because they don't think that benefits should be reduced. There is no "expert" solution to this.

Nor is it clear that a compromise approach is better. Friedman is touting the merits of something called America Elect which will allow the nomination over the internet of persons who, after being screened by someone, will be nominated for President in a virtual and secure convention. The winner must then run with a person of the opposite party.

Friedman takes pride in the fact that most of us will have heard of America Elect first through his column. I suspect the most of us will also hear of it for the last time through his column. If, in fact, it becomes a broad based phenomenom, it is far more likely to result in the nomination of a populist demagogue of either the right or the left than the gray expert that Friedman envisions.

But it might be even worse if it does work as he hopes. The presumption is that some solution "in the middle" is always better.

But sometimes, the middle is simply incoherent. It's not clear to me, for example, that ObamaCare - an ad hoc hodge podge of command and what are at least supposed to look like markets - is worse than a single payer system since it may wind up delivering its harms without its benefits. Compromise solutions often reduce to putting off intractable problems for another day.

Locally, Steve Jagler of the Biz Times commends to us the potential Senate candidacy of Bucyrus CEO Tim Sullivan. His principal qualification, in Jagler's view, is that he "has a problem" with both sides in our political debates. He is, in other words, knows better than the poor cretins who actually spend their lives worrying about public policy. Tim Sullivan may be a great guy but my guess is that, if he does run and win, he's in a for a rude awakening.

My point is not that compromise is a dirty word only that it is not inherently virtuous. My guess is that there will have to be compromise on the debt ceiling but this may not be - in fact is unlikely to be - the best solution. It will probably involve kicking the problem down the road and papering over differences with roseate economic assumptions and promises to do something in the future.

Sometimes conflict exists not because of the supposed power of extremists but because smart people acting in good faith see things differently. Occasionally we have to let those differences be resolved one way or the other.

Jagler complains of the nasty of our politics and seems to think that the answer is in the absence of strong views or in some set of eclectic views that cannot be identified with the traditional political divide. Friedman seems to agree. What I would prefer to radical moderation in policy is moderation in the conduct of our political debate. I would prefer that we recognize that someone can disagree with us and yet somehow not be a corrupt evil moron. That requires us to listen and it may lead to compromise but it certainly should lead to civility

Songs for 103 degrees

OK its better today but still ...

First, it's not a heat dome.



Fish are jumpin'




but living ain't easy




Because the pavement is burning

Silliness on WELS and Bachmann

I suspect that Michelle Bachmann will not get the GOP presidential nomination but the attempt to slam her as anti-Catholic because of her membership in the Wisconsin Evangelical Lutheran Synod is pure politics.

To be sure, WELS - as an institution - takes a rather harsh view of the Papacy. But it's not clear to me that most congregants take much heed of that or that, to the extent they do, that church doctrine concerning the papacy translates into any particular attitude about Catholics that affects one's relationship with people and groups that are Catholic. My brother-in-law, for example, is a member of WELS. You'll have a hard time finding a better guy.

I might be more impressed by the matter if so many Democrats weren't perfectly willing to absolve Democrats of belonging to churches with what they consider to be objectionable doctrine. For example, the Catholic Church teaches that homosexuality is intrinsically disordered and that abortion is murder. Yet Democrats seem perfectly able to understand that a politician - such as Joe Biden, Nancy Pelosi or John Kerry - may belong to the Church and not share those views. Barack Obama belonged to a church headed by a race baiting, conspiracy mongering nut who he claimed was some form of father figure and transformational influence in his life, yet his supporters were perfectly able to distinguish the President from Reverend Wright.

In fact, when it comes to Democrats criticizing others for being anti-Catholic, recognition of a certain degree of irony is in order. Many on the left believe that being pro-life is to be "anti-woman" or that opposing same sex marriage is bigotry. These are, of course, attacks on faithful Catholics in a way that WELS rejection of the papacy is not. In other words, the left wants to hang Bachmann for being an anti-Catholic bigot for belonging to a church that takes a theological position she has repudiated, while it argues that Catholics who follow the teaching of the Church are immoral.

If that doesn't persuade you that the criticism of Bachmann for her former membership in WELS is cynical political posturing, please direct me to the criticism of Democratic politicians who belong to the WELS. We needn't go far to find one. How about Ron Kind (D-Wis.)?

Shark on WPR

I will be on Wisconsin Public Radio in the morning to discuss redistricting. Seven am.

More on Redistricting

So I understand Peter Earle, a lawyer from Milwaukee, was "befuddled" by my testimony before the Joint Committee that the GOP redistricting plan is not vulnerable to legal challenge. In the midst of what was largely a partisan speech committed to political - as opposed to legal - argument(more of that "shame on you" schtick), Peter was asked about my conclusion that the plan would pass legal muster. In response, Peter said that he, as a "responsible lawyer" who adheres to the ethical standards of his trade(apparently unlike me) , does not understand how I could know that without taking more time to crunch the numbers.

I don't know Peter Earle. I think I met him for the first time when he introduced himself as I was leaving the hearing room. I know who he is and I think he may have been tangentially involved in a voting rights case that I handled a number of years ago. Although I'll put my legal chops up against Peter any day of the week, I won't question his competence or responsibility or adherence to the "ethical standards of the trade." I'll assume that he didn't really intend to question mine.

But if he is truly befuddled, he didn't listen very well. Peter doesn't bother to address anything I said about the redistricting plan so let me review why I can say what I did "responsibly" and "ethically." It is apparent, as we say in the law, that there are no material issues of fact.

I addressed three potential legal challenges. There is no question that the plan meets the requirement to equally populate districts. That's simple math.

But isn't a partisan gerrymander? That's the second area that I addressed. As I explained to the committee, I don't know the extent to which the plan favors the GOP or whether a more competitive plan could be drawn. I assume that it does favor Republicans and that one could draw more competitive districts. But, as I carefully explained with reference to controlling precedent, I don't need to know. Challenges to plans as partisan gerrymanders are effectively nonjusticiable. If Peter is even remotely familiar with the law in this area (and I'm sure he is), he knows that to be true and a complete response to the question he was asked would have included that concession.

Of course, I know his response will be that he wasn't talking about that - that he is only concerned about districts in the Hispanic community and whether there is a possible voting rights violation. That is the final area I addressed. I explained to the committee what the law is in that area, noted that the plan seemed to create an extraordinary number of African American majority districts and, depending on which of three alternatives are adopted, will create two Hispanic majority assembly districts for the first time. Because it seems unlikely that one could create more, I pointed out that, unless someone can demonstrate that additional majority minority districts could be created that are compact, contiguous and justified under the three part test that the courts use under section 2, the plan would not be susceptible to challenge.

And Peter Earle knows that. He also knows that the GOP has been in negotiation with the Hispanic community as to the precise contours of the majority Hispanic districts. His claim that he is unable to assess the possibilities for lack of access to publicly available census data and a software package strains credulity. He suggests that maybe it would be possible to create an Hispanic influence district, but, as he knows, there is no legal obligation to do so.

Beyond all that, this is a huge feint. As Peter knows, the GOP is more than happy to create majority minority districts. One of the ironic impacts of the manner in which doctrine under the Voting Rights Act has developed and of the political strategy of minority communities is that redistricting often results in alliances of Republicans (in whose interest it is to pack Democratic voters) and minorities who want to create magority minority districts (which, according to most experts, must actually contain a supermajority of minority voters) to be effectively majority minority.

Street Car Reflects Desire

I'll say this much. The new street car plan is better conceived than the big square that Mayor Barrett originally wanted. And, by way of full disclosure, it may well benefit me personally in that it may (sort of) connect my office to places that I frequently visit but can be a bit far to walk if weather and time are an issue. If the anticipated operational costs and ridership are correct, it might be financially justified.

But, given the history of mass transit projects, I doubt that they are. And when one adds in the capital costs (particularly the "free" federal contribution)it starts to look pretty sketchy. If we add in the apparent cost of relocating utilities, it's close to a white elephant. It's not clear whether the extensions would hurt or help cost effectiveness.

There are other problems as well. Will a downtown steetcar actually add to traffic congestion? Who will benefit? Not, I think low income folks but downtown professional and upscale residents.

This is always the problems with rail projects. Rail advocates seem to want to spend almost any amount of money on just about anything that runs on a fixed course in order to build "momentum." They hurt themselves in the process. By focusing on a train that did not work - the semi-express to that hub of civilization know as the Dane County Regional Airport - they arguably cost funding for one that does - the Hiawatha to downtown Chicago.

Rail can be a good idea but it is not always - and probably, given its limitations, not often - a good idea.

Overdramatization of Redistricting

Yesterday, I had the opportunity to testify before a joint legislative committee on redistricting. My purpose was not to address the political merits of the plan (although it strikes me as fine) but to address whether it would be susceptible to court challenge.

Not at all, say I say. The criticisms I hear are that it reduces competition, favors Republicans "too much" and changes some things that have in place for a while. Even if these things are true, they will not result in judicial invalidation of the law. Allegations of partisan gerrymanders are effectively nonjusticiable and there is no obligation to draw lines in order to maximize competition or keep something the same. To be sure a legislature might seek to further competition (although they rarely do) or to accomplish what is sometimes called "core retention" (minimizing the movement of voters into a district represented by another incumbent) but it need not.

In fact, other commonly accepted redistricting principles might cut against doing these things. Let's take an example in the GOP plan that has been frequently brought up. The proposed plan combines the cities of Racine and Kenosha and this results in dividing both Racine and Kenosha counties. There are certainly arguments against doing this. It splits counties (which was once, but is no longer, thought to be prohibited by the state Constitution) and - or so I am told - creates one safe Republican district and one safe Democratic district.

But there is also at least one major reason to do it - principally that it arguably groups a community of interest into one district. The cities of Kenosha and Racine - particularly with respect to their relationships with state government - have more in common with each other than the city of Racine has with, say, Wind Lake.

It is because redistricting involves the application of conflicting values subject to a rather rigid constitutional imperative of equal population that drawing lines is seen as an innately political process that, in Wisconsin, is the constitutional prerogative of the legislature. As I told the committee, courts will disturb a plan drawn by the legislature for a limited number or narrow reasons and allegations of partisanship - something akin to discovering that there is gambling going on at Rick's in Casablanca - is not one of them.

There have been a number of overheated claims. This blogger seems to think that the plan plunges Wisconsin into a constitutional crisis. In his rush to repeat all of the cliches of the current canon on the left (Fitzwalkerstan, money, etc.), he doesn't really say why but the gist seems to be that the legislature has taken longer to do this in the past (indeed the legislature has been unable to do it since the 1930s because we have had divided government) and contemplated taking more time now. So what? He - and others - also claim that current law is written in a way that results in municipal wards being drawn first - although the legislature may subsequently change them. Legislation has been introduced to make alterations in that process. If the legislature chooses to make those changes, the result is not a constitutional crisis. It is legislation.

The elephant in the room is the pending recall elections. Democrats seem to think they have a right to defer redistricting until after the recalls hoping that they can flip the Senate and create divided government, pushing redistricting into the courts. But there is no legal or ethical requirement for the GOP to go along. In fact, there is a certain irony in the Democrats pushing for elections in districts that are no longer in compliance with the dictates of the equal protection clause (because they are no longer of equal population) in order to influence the process by which those districts are brought into constitutional compliance. I am not suggesting that the recalls would be subject to constitutional challenge on those grounds (my thought is that they would not), but the fireside equities are muddled and it lies ill in the mouths of legislators who fled the state to avoid exercising their constitutional responsibilities to suggest otherwise.

Noah Bruce Esenberg

Noah was born last Thursday at 23 inches and 11 lbs, 1 oz. Shark Jr tells me that he has been taking the other babies' lunch money.

Obama and Harvard

A friend (and fellow Harvard alum) sends a link to what he calls an "excellent" piece by Frank Rich suggesting that Obama's problems are bound up with the values of Harvard. Obama's problem, according to Rich, is that he hasn't Strauss-Kahned a bunch of bankers and added a system called ObamaBanking to ObamaCare.

But his refusal to do so is one of the few areas in which he hasn't succumbed to what I think is a "Harvard" problem.

"Excellent" and "frank rich" are a jarring - even oxymoronic - combination. I don't know that the problem with Obama is that he hasn't perp walked more bankers or presumed to be able to predict and therefore prevent the next financial crisis. The notion that the financial crisis can be readily explained by a "lack of regulation" is not persuasive. There was certainly regulation that could have prevented some of what happened but no one wanted it - particularly not the Democrats and Barney Frank who famously did not want to make a "fetish" out of things like soundness and creditworthiness.

I do think Obama has a Harvard problem but that problem is his overweening intellectual arrogance reflected in the belief that he and people like him can somehow order the health care system from above of remake the economy through cap and trade schemes. The Tea Party movement was a product of revulsion at that. But, of course, Frank Rich shares those particular prejudices.

Our combative court

The indispensable Christian Schneider has pulled together some of the conflicting accounts of the Incident at our state Supreme Court. This suggests a few things.

1. It may well be that we are probably never going to know what really happened. As is often the case with shocking events that occur quickly, we have conflicting accounts. These are probably the result, not of deliberate falsification, but of confirmation bias. Where the opportunity to observe is limited by the rapidity and surprise of events, eye witnesses will often see what they want or expected to see. There seems to be little in the way of objective indicia of what happened, other than (perhaps) Justice Bradley's suggestion that she was not choked because the two were broken apart and her own choice not to file a police report. Apart from that, it may turn out that there is no way to distinguish one version of events from the other.

2. One unfortunate denouement is that, if the local authorities can't prosecute (and it seems highly unlikely that they can), then the matter will ultimately come back to the Court. How will that work? Do the participants and witnesses recuse themselves, placing the entire matter with Justice Crooks? Not a very appetizing prospect for him and placing the matter with a single member of the Court is probably not the best way to resolve something like this.

3. Sadly, this is not just about David Prosser. If, in fact, Justice Bradley charged Justice Prosser with her fists raised or went "nose to nose" with him, this also raises issues about judicial temperment and anger management. Of course, "a chokehold" would be a disproportionate response. I'd like to think that neither of them is guilty of actions that arise to the level of assault or disorderly conduct and that an ugly moment has been blown out of proportion. It's not what I would expect from either of them, but we'll see.

5. Nor is it just about David Prosser and Ann Walsh Bradley. This incident doesn't come from nowhere and it doesn't just come from the combative elections we have had since 2007. The origins extend past that and the solution will have to acknowledge this. The culture on the court needs to change. Strong differences of opinion are inevitable, but disputation ought to be kept between the white lines. When strong differences of opinion do arise, individuals ought to try and refrain from ridiculing and questioning the impartiality of their colleagues. Differences on matters of law should not be needlessly magnified into existential confrontations.
The voices of dissenters should not be ignored, but individuals should refrain from using manipulating the court's processes and customs to frustrate the will of the majority. Individuals ougnt to avoid fighting battles against their colleagues in the press. Administrative matters should not be a place for continuing ideological battles.

I don't presume to lay the blame for this at anyone's feet or with any wing of the Court nor do I intend any veiled criticism. I have no interest in arguing about who has or has not been "guilty" of contrubuting to the present state of affairs. I just hope for better. If responsibility for the problem is diffuse, then perhaps commitment to improvement can be broad.

Sad Days at the Wisconsin Supreme Court

A few months ago, I was talking to a reporter at Reuters who asked "what's going to happen next with you people in Wisconsin?" I told him that I had no idea but it would probably be some bizarre thing that no one saw coming. The next day Kathy Nickolaus had a press conference.

And now it happens again with our embattled Supreme Court. What a mess.

Let's clear away the obvious. The idea of David Prosser strangling Ann Walsh Bradley seems fantastical. But I wasn't there and if Justice Prosser did assault Justice Bradley - "put her in a chokehold" as the allegation has it, he should resign. However, it is equally the case that if Justice Bradley assaulted Justice Prosser - "charged him with raised fists" as the allegation has it (also a bit hard to picture), she should resign. Whether criminal charges should be issued is, of course, another matter and depends on how serious the altercation was. My guess is that - even if something untoward happened - it doesn't rise to the level that would normally result in prosecution.

But, of course, it's not clear that either one of them did what is alleged. The initial report by Bill Lueders was an embarrassingly bad piece of work. Deciding what happened will require resolving conflicting accounts and that resolving them will involve taking testimony from members of the Court other than just Justices Prosser and Bradley. That, for a variety of reasons, is going to make handling any potential disciplinary or criminal proceedings a nightmare. If there are conflicting versions corresponding to ideological stances, God help us all. Addressing that in the context of our politically charged environment in a way that does not become yet another major fissure in out state seems impossible.

But the worst thing, I think, would be to frustrate the will of the voters by the imposition of discipline based upon controverted allegations. That would smack of a coup. It would undermine the legitimacy of the Court. Either way.

But there are other threats to the institution. Lawyers have been worried about the divisions on the Court for some time now. It's one thing to disagree, but disagreement ought not to undermine civility and respect. No one likes to say too much about it in public for fear of alienating the people who may decide their clients' matters. I include myself among this reluctant group.

Someone - maybe more than some one - needs to step up and lead. Leadership requires more than scoring debating points and calling out your colleagues' character and bona fides. Substantive differences among members of the Court are real and important, but they are not unprecedented and are not existential. The damage being done to the Court as an institution may be.

It easy for us on the outside to think we know who is at fault. It is easy for us to think the matter is somehow resolved by a call to just "get along." The fact is that, like a damaged marriage, relationships within a collegial body can ultimately be repaired only by the members of that body. I don't pretend to know what that will take. I do hope that there will be some serious soul searching among members of the Court.

Inital Thoughts on Yesterday's Decision

Regarding State ex rel: Huebsch v. Circuit Court for Dane County

1. For reasons that I have stated on many occasions, this was not a hard case. Controlling precedent clearly prohibited an injunction against publication of a statute and nothing about the passage of the open meetings law changed that. There was not, as some have suggested, two lines of authority about the impropriety of invalidating an act of the legislature for failure to comply with a procedural review. Stitt controls on that question and nothing about the open meetings law or the Court's decision in Milwaukee Journal Sentinel changes that. The majority was not wrong, as some have suggested, in framing the issue as whether the passage of the open meetings law could amend (by adding to) Art. IV,sec. 10 of the state Constitution. The argument that the law has a "constitutional nexus" or is somehow the implementation of a constitutional provision tees that issue up. If - as everyone seems to agree - Art. IV, sec. 10 does not itself impose any requirements on the legislature that were violated here, then arguing that the legislature is bound by something with a "nexus" - a sort-of-kind-of-but-not-quite-constitutional command is tantamount to a sub silentio amendment of the constitution. Rather than construct a straw house, the majority went directly to an issue that, quite frankly, the District Attorney and Judge Sumi obscured with imprecise language. That issue was at the heart of the matter. I could go on but you get the point.

2. No Justice voted to affirm Judge Sumi. Those who dissented in part wanted to take more time and, in a certain way, that's understandable. Law developing courts of last resort deal with biq questions and are used to act - quite properly - with a certain leisure that facilitates measured and thorough analysis.

But turbulent times can present extraordinary circumstances. To take more time here would have been to decide the case in favor of one party. The other two branches of government would have run out of time. To say that the legislature could just repass the bill and have the Governor resign it is not an answer. Co-equal branches of government are entitled - the people are entitled - to have their constitutional prerogatives respected. It is unfortunate that circumstances required expedited review, but it's not the first time that has happened and it won't be the last.

It certainly is true that the Court normally accepts jurisdiction and then proceeds. But the issues in the case were, by the Court's order, fully briefed and thoroughly argued. (I thought about filing an amicus brief in the case but concluded that there was really nothing more to be said.)

The real question is what would have been better had the Court waited. I'm not sure and I don't see an answer in the writings of the those Justices who dissented in part. I don't know, for example, that access to the entire record below would have made a difference because it's unclear that there are any material factual issues. One quickly gets into legal inside baseball but I think Justice Prosser is right. The case wouldn't have looked any different in the fall.

3. I do not think that criticism of the majority's writings as poorly done is fair at all. I think it is particularly unfair and unfortunate that anyone should suggest that one can somehow infer a "results oriented" approach from the Justices' writing. Personally, I find the majority's writings to be more compelling but I certainly would never impugn the minority's intention because I don't agree with or find fault with their analysis.

4. Doug LaFollette is not at sea in the way that he thinks he is. I think the majority is wrong about the law not being in effect and, if it is not in effect, was wrong in the reason that it gave. Publication in the official state newspaper seems quite clearly not to be the thing that makes it effective. But LaFollette is obligated to publish within ten days of the publication by the LRB which occurred on March 25. What he must now do is arrange for publication as soon as possible.

Shark on the Air

I will be on Charlie Sykes show at 8:45 to discuss the Supreme Court's decision yesterday. I'll post something later.

Sometimes Art is just art

I have do not know John Gurda but have always admired his work on the history of Milwaukee. I have all of his books and enjoy his monrhly columns in the Milwaukee Journal Sentinel even as they have become increasingly political. He clearly leans left but I've never been one to think that having and expressing political views undermines one's professional or academic work. In areas that are politically fraught (and both public law and history are), people who claim to pronounce from the Olympian Heights are often fooling themselves.

So I offer the following with some measure of sympathy. In his Sunday column, Gurda recites a bit of Wisconsin's abolitionist history and then calls for an end to our current civil war in which, he says, "confrontation has trumped compromise and ideology has overwhelmed practicality."

A bit over the top, I suppose, but there is a point to be made. I've called Wisconsin "the bloody Kansas" of our current political divide, although I do so with some irony. I think the Left's response to Scott Walker is hysterical and detached from reality. But we could all do well to dial it down a bit.

But I'd take Gurda a bit more seriously if he hadn't - in the same issue of the paper - allowed his own ideology to overcome common sense. He calls it tone deaf and "breathtaking." Taking down David Lenz' "Wishes in the Wind" is hardly tantamount to removing the Mona Lisa from the Louvre. The painting is OK but it's hardly a masterwork. It evokes a kind of Sesame Street urbanism - possibly because anything else would be too edgy for the Governor;s Mansion. It is in a realistic style that some would argue is tantamount to photography and unappealing.

In any event, choosing a work that emphasizes a different theme is hardly evidence of animosity toward children or the poor. Promoting the view that removing a painting is a politically divisive act is itself a triumph of ideology. I understand that we boomers once thought that the personal is the political. It was a bad idea then. It still is.

More on Ozanne

My further remarks on Judge Sumi's decision and response to Ed Fallone can be found at the Marquette University Law School Faculty Blog.

One Reason Why Ozanne is Wrong Decided

It should as no surprise to anyone that I disagree with Judge Sumi's decision in Ozanne v. Fitzgerald for all of the reasons that I have given here and elsewhere. The outcome was predictable but there is at least one part of the opinion that is notably odd.

Judge Sumi writes that "the Supreme Court's decision in Milwaukee Journal Sentinel v. Dept of Administration, 2009 WI 79, answers the precise question raised in this case, whether and under what circumstances a court may bvoid a legislative act for failure to abide by a statutory directive." The case involved legislative ratification of a collective bargaining agreement that, by it terms, prohibited the release of information of certain information regarding public employees that would otherwise be required to be released by the open records law. An existing statutory provision said that the open records law could not be amended by the adoption of a collective bargaining but only be a separately introduced bill. The question was whether adoption of the agreement did in fact modify the open records law so that the subShe goes on to elliptically describe Milwaukee Journal Sentinel saying that, in that case, the Court "went on to invalidate 2003 Wisconsin Act 319 adopting the collective bargaining agreement and amending the Public Records Law."

No, it did not. The collective bargaining agreement remained in force. All the Court did was decided that it did not have the effect of amending - sub silentio - the collective bargaining law. You can read the majority opinion as many times as you want and you will never find any language or mandate that would invalidate all of any part of the act.

A midnight blue friend argues that, well it's as if they did because they refused to give effect to that part of the Act which "purported to" amend the Public Records law, citing (because that's the kind of thing he does), the latin maxim pro tantum brutem fulmen. But the problem in Milwaukee Journal Sentinel was that the Act in question did not purport to amend anything. The argument was made that it did so inferentially by adopting the agreemen. The court concluded that the Act - fully valid - had no such fact, relying on a constitutional requirements for the passage of legislation and reading the statute in question to be, at least for relevant purposes, a legislative statement in compliance with (i.e., restating) those requirements. The Court expressly disavowed any suggestion that it was acting due to a mere failure to comply with a statutel

In fact, the Court's analysis was intitially constitutional. The act was not a bill amending the public records law under Article IV, sec. 17 of the Constitution. Only after it reached that conclusion did it consider 111.92(a)(1) which it interpreted to be consistent with the Constitution, i.e., it did not provide for the amendment of laws in some way other than that specified by the Constitution.

Judge Sumi could have said that the two hour notice provision adopted by the open meetings law was constitutionally mandated, but she did not - for at least two reasons. First, the Dane County District Attorney would seem to lack standing to attack the constitutionality of the collective bargaining bill and the claim would be without merit. The Open Meetings law expressly states that the legislature may exempt itself from its requirements (by the mere adoption of a rule) belying any suggestion that even the legislature that passed the bill thought that it enacted constitutional requirements. (And, of course, even had the enacting legislature thought so, it's view could not bind subsequent legislatures.)

It is quite a stretch to say that a constitutional requirement that the legislature's proceedings be open to the public requires some particular period of notice and room requirements. To say so would be without precedent and would fly in the face of 150 years of practice.

Here's an interesting coda. Chief Justice Abrahamson dissented in Milwaukee Journal Sentinel for reasons that would make it very hard to vote to uphold the circuit court's decision here. It is completely possible that this decision gets one or no votes of support on the state Supreme Court.

There are a host of other problems as well. But it is not clear that this or any of them will ever be reached by the Court. As I understand it, the collective bargaining bill must be in effect for the budget to work. The budget must be passed by the end of June. There may now be no choice but to reenact it.