Michael Gableman and his lawyer

A couple of things about the dust-up regarding Michael Best's representation of Justice Michael Gableman in ethics proceedings stemming from the Reuben Mitchell case. We've seen a ripple of uninformed commentary. I think the issue is worth discussing but it's not the scandal that some people seem to think it is.

Is the arrangement unusual? Any case brought by the Judicial Commission is a bit unusual, so we can't look at a large universe of judicial discipline cases. But considering cases of all types, the fee arrangement here really isn't uncommon. Because state law provides for the prevailing party to recover fees, this was what lawyers often call a "fee generating case," i.e., a case in which the law provides for payment of fees to the prevailing party or there is  the potential for a monetary recovery from which fees can be paid. These arrangements allow lawyers to take a case in which the client could not otherwise afford to hire them.

We are all familiar with the typical contingency arrangement in personal injury cases. A lawyer provides services (clearly a thing of value) but is not paid unless there is a recovery. The lawyer agrees to do this because, if she does not, the client will be unable to afford to retain her. She makes an economic decision - it is better to have the opportunity to earn a fee than not. (This is one reason that a personal injury lawyer may not take your case if it is too weak or too small.)

We are less familiar with contingency arrangements under which the fee is paid not out of a recovery but because there is a statute that awards fees to a prevailing party. But they are also fairly common. They are, in fact, the bread and butter of lawyers who specialize in civil rights cases and class actions.  The economic calculus is the same. The lawyer decides that a shot at fees (even if it means working a case "on the come") is better than no shot at all.

This latter arrangement was apparently the bargain between Justice Gableman and Michael Best. To say that contingency fee arrangements involving defendants are rare does not get us far because there are relatively few statutes permitting the award of attorney fees to a defendant.[i] But there was one in this case.[ii]

In a complaint filed today with the Judicial Commission, Mike McCabe and the Wisconsin Democracy Campaign say that the arrangement is unusual because the award of attorney fees in a case like this is discretionary. Because the controlling law, Wis. Stat. § 757.99, says that fees "may be" awarded, WCD’s McCabe – who is not a lawyer – says that agreement of a lawyer to accept only what might be awarded is unusual - even "unheard of."

That’s not true. The award of fees in civil rights cases is also discretionary. 42 U.S.C. § 1988(a) provides that a "court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs ...." Yet no one regards the agreement of a civil rights lawyer to limit herself to whatever fees a court might award as giving a gift or thing of value or otherwise entering into an unusual arrangement.

WCD's complaint also argues that sec. 757.99's reference to the "reimbursement" of fees means that Justice Gableman would have actually had to pay them or at least be obligated to pay them in order to recover. I am not aware that the statute has ever been construed that way and one could make the similar arguments with other fee shifting statutes. While they tend not to use terms like “reimbursement,” one could argue that, if there is no obligation to pay in the absence of an award, there are no fees. But these laws are not construed in that way and I doubt that the use of the term "reimbursement" would require a different result here.

In any event, that was not the interpretation of Justice Gableman and Michael Best. They seem to have believed that the he could be reimbursed for fees that were contingent upon an award. If they were wrong, that argument would go to the merits of a fee application that was never made and not to whether an arrangement of this type is unusual.

But, even if it is common, was it unethical? I don't think so. SCR 60.05(4)(e) prohibits judges from taking a gift subject to certain exceptions. Before even considering the applicability of the exceptions, it is necessary to determine whether the arrangement with Michael Best was a gift.  SCR 60.01(7) defines a gift as "the payment or receipt of anything of value without valuable consideration."

But there was valuable consideration here. It was Justice Gableman's agreement to retain Michael Best in a potentially fee generating case. Whether or not you think that is "enough" consideration to warrant spending time on the case in the mere hope of recovery is immaterial. Every first year law student learns that courts do not examine whether the consideration underlying a contract is "enough" for whatever is promised in return. We all learn that a mere "peppercorn" will do.

While we may not wish to interpret SCR 60 in the same way - it is possible that there could be sweetheart deals that are tantamount to gifts even though there is some form of consideration - this doesn't seem like a particularly inviting case to do so. Lawyers generally do regard the opportunity to be retained in fee generating cases as valuable. This is is one of the reason that they advertise so heavily to get cases in which they will only be paid if they win. Don't believe me? Consider David Gruber and the Law Offices of Hupy & Abraham. TV time ain't cheap.

Even were that not the case, a lawyer's obligation to consider the need for  provision of legal services to those who could otherwise not afford it militates against an overly expansive interpretation of the term "gift." As noted above, disciplinary proceedings against a sitting justice who lacked adequate representation would not serve the public interest.[iii]

State ethics law governing "state public officials" doesn't change the analysis. Sec. 19.45(2) prohibits state public officials from using their position to obtain a thing of value and sec. 19.45(3) prohibits a state public official from accepting a thing of value if it could reasonably be expected to influence him or be seen as a reward for this past conduct.

Assuming that this provision applies, receiving a thing of value for consideration - particularly pursuant to a fairly common arrangement between lawyers and clients - does not fall within the proscriptions of ss. 19.45(2) or (3). A common arrangement that lawyers and clients typically enter into does not suggest undue influence (19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bring all sorts of standard business relationships and transactions within the scope of the chapter 19 and its preface makes clear that this was not the legislature's intention.

This is not to say that there aren't issues raised by lawyers representing judges. But those issues are better addressed through recusal to which I turn next.

Will it - or did it - require Justice Gableman to recuse himself? This is a completely different question. A lawyer-client relationship between an attorney and a judge may create an appearance or risk of bias when the lawyer appears before the judge. This may lead to a duty on the part of the judge to recuse. In some instances, that might apply to members of that lawyer's firm. We all talked about this with respect to whether Justice Prosser should sit in a case in which Jim Troupis was involved after Jim had represented the judge with respect to the recount of last spring's Supreme Court election.[iv]

In today's Milwaukee Journal Sentinel, I am quoted as listing the factors that would inform a decision to recuse or not and describing the process as a judgment call. The quote is accurate.

That is the law. There are no clear or objective guidelines for the resolution of these questions. The determination of whether to recuse and how long to do so is committed almost entirely to the Justice who must weight a variety of factors including his or her ability to remain impartial, the extent to which a reasonable person might question his impartiality and the public interest in having a matter considered by the full court. That determination - in matters before the Wisconsin Supreme Court - is final and subject only to correction only in unusual and extraordinary cases by the United States Supreme Court.[v]

The article then refers to the opinion of two law professors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers, who said they "believed" that Gableman should have recused himself. "Believed" is the operative word. Their conclusions reflect the way in which those professors thought - at least during the few seconds it took them to respond to a reporter's inquiry - they would have reacted. They may be right but I doubt that they knew all of the facts or spent the type of time on the question that an actual judge does.

In the paper's coverage, Professors Gillers and  Geyh seem to be heavily influenced by the fact that Justice Gableman did not pay by the hour..  But is it really correct that judges may not retain counsel on a contingency fee basis? What if a justice or member of her family was in a car wreck? Do Professors Gillers and Geyh believe that a judge may hire counsel on a contingency basis, but that the lawyer is (indefinitely?) barred from appearing before the judge if the case is lost? What if, as was the case here, the matter involves important constitutional questions? What if, as I assume was the case here, a judge lacks the financial resources to hire competent counsel?

The idea must be that Justice Gableman owes Michael Best a "debt of gratitude" because they agreed to represent him on a contingency basis. But this certainly doesn't comport with our common understanding of what constitutes a gift. If I hire Bill Cannon to represent me in a medical malpractice case and he doesn't get paid because he loses the case, I don't think that he gave me a gift or that I owe him anything. If I retain Walt Kelly to represent me in a civil rights case after the police beat me up and he doesn't get paid because the case gets tossed on summary judgment, I don't owe him a debt of gratitude for working for "free."

The bottom line is that these issues are not easy and not properly the stuff of sound bites and partisan attacks.

Today's article report that Justice Gableman sat on some cases involving Michael Best during a period that included (but was not coterminous with) the period in which he was represented by Michael Best. Should he have recused himself during that period?

Perhaps. I'd want to know precisely when these cases arose, who the actual lawyers were and the public interest in each. The three cases that the article refers to, for example, were argued and submitted to the court after Michael Best's representation of Justice Gableman had ended[vi] - although one had also been argued earlier and then set for additional briefing and reargument.

It does appear, however, that there were other cases in which Michael Best was involved and in which Justice Gableman participated during the period in which he was being represented by the firm. Even if I – or Professors Gillers or Geyh – might have decided to stand down during this period does not mean that someone else might reach a different conclusion.

The one thing I can say is that Michael Best's representation of Justice Gableman does not seem to have much of an impact on his voting which was pretty much split down the middle.[vii] Although the recusal issue goes beyond the issue of actual bias, if, as some intemperate bloggers have charged, Michael Best thought it was "buying a Justice" (and it didn't; it thought it was acting in the public interest), then it got a raw deal.

There is an ethics issue to be raised that does not involve Justice Gableman. SCR 20:1.6 prohibits a lawyer from disclosing information "relating to the representation of a client” without authorization. From press reports and other sources, it appears that the firm disclosed Justice Gableman's fee arrangement to other members of the court and to the press. Did Justice Gableman authorize the disclosure? If not, was there a legal justification to do so? 

I am not accusing anyone of anything and my experience with large law firms is that they do not act rashly. There may well be an explanation and we ought to be willing to hear it if and when the proper time comes.

But, as a member of the bar, I am naturally curious about this type of disclosure of a client confidence. I think it is important to raise it because the public ought to be confident that lawyers will respect the confidentiality of their matters.

Why was it OK to disclose a confidential fee arrangement?

---

[i] It is possible for a defendant in an action brought under the federal civil rights law to recover fees but there are additional requirements imposed by case law (essentially that the position of plaintiff have been frivolous) that makes it hard to do.

[ii] It would be unfair to Michael Best, however, not to point out that it may also have been motivated by altruism and consideration of the public interest. There were important constitutional issues raised in the Gableman disciplinary matter and it would have been contrary to the public interest for a sitting Supreme Court justice to lack adequate representation. (As noted below, it is apparent that what Michael Best has not gotten was favorable treatment for its clients.)

[iii]Unless Michael Gableman is independently wealthy, he could not afford to hire Michael Best & Friedrich by the hour on a justice's salary. Anyone who thinks otherwise has never seen a bill from a large law firm. However, matters as complex and important as those presented in his disciplinary matter required retention of counsel of comparable talent. Lawyers like that don't come cheap.

[iv] By way of full disclosure, I was also involved in that case although not the recount. Jim Troupis withdrew, Justice Prosser recused himself and I argued the case which is pending.

[v]The reason that I say federal review would be limited is because the opinion in the  controlling case, Caperton v Massey Coal Co., repeatedly stated that a federal constitutional duty to recuse only arises in "unusual," "rare" and "special" circumstances.

[vi] The cases are Metropolitan Milwaukee Ass’n of Commerce v. City of Milwaukee (argued October 1, 2010); Metropolitan Associates v. City of Milwaukee (argued October 7, 2010) and State ex rel. Ozanne v. Fitzgerald (argued June 6, 2011)

[vii] Apparently, Gableman voted for Michael Best's position five times and against it four times. The three other "conservative" justices, Prosser, Roggensack and Ziegler, broke 4-5, 4-4 and 4-4. That difference is not statistically significant. The "liberal" wing - Chief Justice Abrahamson and Justice Bradley and Crooks (to whom the liberal label should be applied lightly) - all went 1-8. This suggests that the outcomes were a matter of philosophy and not some external bias.

What can the GAB do?

I think that there has been a persistent and fundamental misstatement of the law with respect to the Government Accountability Board's review of recall petitions. For example, in an editorial in  Saturday, the Journal Sentinel editorial board writes as follows:

The GAB won't do their bidding by striking duplicate or phony names from recall petitions. GAB chief Kevin Kennedy says the agency can't do that under state law. It's up to the folks who want to challenge the petitions - presumably Republicans - to point out such problems, Kennedy says.

Blogger Jay Bullock also offers a legal opinion to the effect that the Board is not empowered to strike duplicate or otherwise obviously invalid signatures. Commenters to this blog and other have suggested that, in refusing to do much of anything to vet the signatures, GAB is just "following the law."


I don't think these statements are true. Here's why.

Sec. 9.10 of the statutes governs recall and requires that "[w]ithin 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition." It is simply not the case that the GAB must ignore duplicate signatures of accept signatures that are facially invalid because the name or address is illegible or obviously phony. Indeed, the requirement that the petitions be "carefully examined" suggests that the agency may not do this.
Not surprisingly, then, I don't think that GAB Executive Director Kevin Kennedy has never said that the GAB can't strike duplicate or phony names, only that it won't or is unable to get the job done. This doesn't amount to a lack of legal authority, but a claim of a lack of legal obligation, i.e. that an assertion that the duty of "careful examination" of the petitions does not require that it do these things.
.
Whether he is right or not is one of the issues presented by litigation brought against the GAB last week. But the claim that the GAB does not have to root out duplicate signatures and other facially phony or illegible signatures is a different proposition than a claim that in may not do so.

The  view that the GAB has no power to conduct a more rigorous review of the petitions is said to be supported by reference to a challenge process in which challengers to signatures have the burden of proof. But the fact that opponents of recall may challenge signatures does not obviate GAB of its burden to conduct a careful examination or limit its ability to strike facially invalid signatures.

This places the Journal Sentinel editorial board's claim that the GAB won't do the Republicans "bidding by striking duplicate and phony names." The Republicans "bidding" is that the GAB undertake a careful examination of the petition sufficient to determine that it actually has the requisite number of signatures.
I do think that there are some limitations on the GAB's review. It is not required to go beyond the face of the petition, i.e., it does not have to verify addresses or conduct research to determine if an apparently real person "actually" exists or "really' signed the petition. This may, in fact, limit its ability to exclude odd names from apparently valid addresses. Excluding those names may fall on challengers.
But duplicate signatures or those that are obviously false ("Santa Claus, One North Pole Way, Ashwaubenon") are not facially valid.I would also argue that the GAB should not count signatures for which the name or address are illegible. I say that because, for those signatures, there is no way to determine their facial validity.

Will GAB remove these names? It's hard to know but, so far, the indications are that it may not (although some "may" be flagged.) At this point, it is hard to know what GAB intends to do. It's executive director has even been quoted as saying that"the law doesn't require the GAB to read the actual names listed on the petitions." How he reconciles that with the duty of careful examination is unclear.

He has also announced that these things will not be a problem. He may be right. I suspect that is likely to be the case. But there is, of course, no way to know that today and we can't assume the problem away. We surely would not want a referee to announce that he doesn't think the Bears will commit a lot of penalties.

Relying on recall opponents to do what the GAB won't is problematic. As things stand now, recall opponents will have ten days to vet hundreds of thousands of signatures. That is impossible. While that period can and should be extended by court order, I also imagine that recall proponents will do everything that they can to limit the length of any extension.

I and others have called on the Democrats - who claim to have lots and lots of signatures - to allow the process to begin. In response, the only real argument that I have seen is that "they don't have to" and should not give up a tactical advantage -  as if recalling a Governor was some kind of game.

To be sure, some recall supporters have said that the Republicans will just raise spurious challenges but, if the challenges are spurious, they won't succeed. In any event, that argument proves too much. It would justify permitted no review of the petitions.

Others have said that there is "no fraud" with one blogger linking to my argument that there was no fraud in the state supreme court election. But, of course, the reason that I said there was no fraud was that it was, under the circumstances readily detectable and was not detected. I never said that the other side has no right to look.

In this case, a combination of the GAB's preannounced passivity, the volume of signatures necessarily involved in a statewide recall and short statutory review periods may operate to deny one side a meaningful look. That's not OK.

My assumption has always been that public employee unions can get enough signatures to force a recall. They are very powerful - well funded and good at political combat. But the fact that I think that they can and probably will get enough signatures does not mean that it is not is not necessary to verify that they have, in fact, done so.

Michal Gableman and his lawyers, part 1

A couple of things about the dust-up regarding Michael Best's representation of Justice Michael Gableman in ethics proceedings stemming from the Reuben Mitchell case. We've seen a ripple of uninformed commentary. I think the issue is worth discussing but it's not the scandal that some people seem to think it is.

Is the arrangment unusual? Any case brought by the Judicial Commission is a bit unusual, so we can't look at a large universe of judicial discipline cases. But considering cases of all types, the fee arrangement here really isn't uncommon. Because state law provides for the prevailing party to recover fees, this was what lawyers often call a "fee generating case," i.e., a case in which the law provides for payment of fees to the prevailing party or there is  the potential for a monetary recovery from which fees can be paid. These arrangements allow lawyers to take a case in which the client could not otherwise afford to hire them.

We are all familiar with the typical contingency arrangement in personal injury cases. A lawyer provides services (clearly a thing of value) but is not paid unless there is a recovery. The lawyer agrees to do this because, if she does not, the client will be unable to afford to retain her. She makes an economic decision - it is better to have the opportunity to earn a fee than not. (This is one reason that a personal injury lawyer may not take your case if it is too weak or too small.)

We are less familiar with contingency arrangements under which the fee is paid not out of a recovery but because there is a statute that awards fees to a prevailing party. But they are also fairly common. They are, in fact, the bread and butter of lawyers who specialize in civil rights cases.  The economic calculus is the same. The lawyer decides that a shot at fees (even if it means working a case "on the come") is better than no shot at all.

This latter arrangement was apparently the bargain between Justice Gableman and Michael Best. To say that contingency fee arrangements involving defendants are rare does not get us far because there are relatively few statutes permitting the award of attorneys fees to a defendant.* But there was one in this case.

It would be unfair to Michael Best, however, not to point out that it may also have been motivated by altruism and consideration of the public interest. There were important constitutional issues raised in the Gableman disciplinary matter and it would have been contrary to the public interest for a sitting supreme court justice to lack adequate representation. (As noted below, it is apparent that what Michael Best has not gotten was favorable treatment for its clients.)

But, even it it is common, was it unethical? I don't think so. SCR 60.05(4)(e) prohibits judges from taking a gift subject to certain exceptions. Before even considering the applicability of the exceptions, it is necessary to determine whether the arrangement with Michael Best was a gift.  SCR 60.01(7) defines a gift as "the payment or receipt of anything of value without valuable consideration."

But there was valuable consideration here. It was Justice Gableman's agreement to retain Michael Best in a potentially fee generating case. Whether or not you think that is "enough" consideration to warrant spending time on the case in the mere hope of recovery is immaterial. Every first year law student learns that courts do not examine whether the consideration underlying a contract is "enough" for the whatever is promised in return. We all learn that a mere "peppercorn" will do.

While we may not wish to interpret SCR 60 in the same way - it is possible that there could be sweetheart deals that are tantamount to gifts even though there is some form of consideration - this doesn't seem like a particularly inviting case to do so. Lawyers generally do regard the opportunity to be retained in fee generating cases as valuable. This is is one of the reason that they advertise so heavily to get cases in which they will only be paid if they win. Don't believe me? Consider David Gruber and the Law Offices of Hupy & Abraham. TV time ain't cheap.

Even were that not the case, a lawyer's obligation to consider the need for  provision of legal services to those who could otherwise not afford it militates against an overly expansive interpretation of the term "gift." As noted above, disciplinary proceedings against a sitting justice who lacked adequate representation would not serve the public interest.**

State ethics law governing "state public officials" doesn't change the analysis. Sec. 19.45(2) prohibits state public officials from using their position to obtain a thing of value and sec. 19.45(3) prohibits a state public official from accepting a thing of value if it could reasonably be expected to influence him or be seen as a reward for this past conduct.

There is some uncertainty as to whether sec. 19.45 even applies to justices and judges. On the one hand, its strictures apply only to "state public officials" which is elaborately defined in a way that seems to exclude them. On the other, there is a provison authorized the creation of a judicial cose which states judges and justices should comply with "this subchapter." I could go on, but let's assume - as most people seem to - that it applies.

Receiving a thing of value for consideration - particularly pursuant to a fairly common arrangement between lawyers and clients - does not fall within the proscriptions of ss. 19.45(2) or (3). A common arrangement that lawyers and clients typically enter into does not suggest undue influence (19.45(2)) or influence or reward (19.45(3)). To suggest otherwise would bring all sorts of standard business relationships and transactions within the scope of the chapter 19 and its preface makes clear that this was not the legislature's intention.

This is not to say that there aren't issues raised by lawyers representing judges. But those issue are better addressed through recusal to which I turn next.

Will it - or did it - require Justive Gableman to recuse himself? This is a completely different question. A lawyer-client relationship between an attorney and a judge may create an appearance or risk of bias when the lawyer appears before the judge. This may lead to a duty on the part of the judge to recuse himself. In some instances, that might apply to members of that lawyer's firm. We all talked about this with respect to whether Justice Prosser should sit in a case in which Jim Troupis was involved after Jim had represented the judge with respect to the recount of last spring's Supreme Court election.***

In today's Milwaukee Journal Sentinel, I am quoted as listing the factors that would inform a decision to recuse or not and describing the process as a judgment call. The quote is accurate.


That is the law. There are no clear or objective guidelines for the resolution of these questions. The determination of whether to recuse and how long to do so is committed almost entirely to the Justice who must weight a variety of factors including his or her ability to remain impartial, the extent to which a reasonable person might question his impartiality and the public interest in having a matter considered by the full court. That determination - in matters before the Wisconsin Supreme Court - is final and subject only to correction only in unusual and extraordinary cases  by the United States Supreme Court.****


The article then refers to the opinion of two law professors, Stephen Gillers and Charles Geyh, who are not Wisconsin lawyers, who said they "believed" that Gableman should have recused himself.

"Believed" is the operative word. Their conclusions reflect the way in which those professors thought - at least during the few seconds it took them to respond to a reporter's inquiry - they would have reacted. They may be right but I doubt that they knew all of the facts or spent the type of time on the question that an actual judge does.

I think is is overly simple to argue that the duty to recuse should be interpreted aggressively and that a justice (as opposed to a lower court judge) should err on the side of recusal. There are reasons that an elected justice on a law developing court of last resort (that would be the Wisconsin Supreme Court) ought to be careful about recusal.. This is particularly so in Wisconsin, where recusal by a Supreme Court Justice results in less than a full court hearing important cases. Recusal may be unavoidable but the extent to which it frustrates the public's choice of justices to hear these cases is entitled to weight. (I have written about these issues here.)

In addition, an expansive duty to recuse stemming from a lawyer's representation of a justice would make it hard for that justice to obtain counsel. Any lawyer who is good enough to represent a justice in a difficult matter will also be considered good enough to be retained by many others for matters before the Court. If a lawyer, by taking a case, will disable himself and his partners from accepting matters before the Court for a lengthy period of time, many lawyers and firms won't accept such representation.

I don't know how much the nature of the fee arrangement should matter. In the paper's coverage, law Professors Gillers and  Geyh seem to be heavily influenced by the fact that Justice Gableman did not pay by the hour..  But is it really correct that  that judges may not retain counsel on a contingency fee basis? What if a justice or member of her family was in a car wreck? Do Professors Gillers and Geyh believe that a judge may hire counsel on a contingency basis, but that the lawyer is (indefinitely?) barred from appearing before the judge if the case is lost? What if, as was the case here, the matter involves important constitutional questions? What if, as I assume was the case here, a judge lacks the financial resources to hire competent counsel?

The idea must be that Justice Gableman owes Michael Best a "debt of gratitude" because they agreed to represent him on a contingency basis. But this certainly doesn't comport with our common understanding of what constitutes a gift. If I hire Bill Cannon to represent me in a medical malpractice case and he doesn't get paid because he loses the case, I don't think that he gave me a gift or that I owe him anything. If I retain Walt Kelly to represent me in a civil rights case after the police beat me up and he doesn't get paid because the case gets tossed on summary judgment, I don't owe him a debt of gratitude for working for "free."

The bottom line is that these issues are not easy and not properly the stuff of sound bites and partisan attacks.

Today's article report that Justice Gableman sat on some cases involving Michael Best during a period that included (but was not coterminous with) the period in which he was represented by Michael Best. Should he have recused himself during that period?

Perhaps. I'd want to know precisely when these cases arose, who the actual lawyers were and the public interest in each. The three cases***** that the article refers to, for example, were argued and submitted to the court after Michael Best's representation of Justice Gableman had ended.

I'd also want to be careful about doing what Professors Gillers and Geyh seem to have done - deliver snap and impressionistic judgments. I have never been a judge but I have been a referee in attorney discipline cases and the one thing I have learned is that my inital impression might change.

The one thing I can say is that Michael Best's representation of Justice Gableman does not seem to have much of an impact on his voting which was pretty much split down the middle.******
 If, as some intemperate bloggers have charged, Michael Best thought it was "buying a Justice" (and it didn't; it thought it was acting in the public interest), then it got a raw deal.

There is an ethics issue to be raised that does not involve Justice Gableman. To the contrary, it involves Michael Best and its General Counsel, Jonathan Margolies. SCR 20:1.6 prohibits a lawyer from disclosing information "relating to the representation of a client"without authorization. While there are certain exceptions, none seem to apply.

From press reports and other sources, it appears that Mr. Margolies disclosed Justice Gableman's fee arrangement to other members of the court and to the press. Did Justice Gableman authorize the disclosure? If not, how does Mr. Margolies justify it?

I do understand the motivation. Michael Best was worried that earlier statements by one of its partners might be seen as  incomplete. Perhaps if Justice Gableman had authorized the earlier disclosure, a clarification would be in order. But that's not clear. It would depend on what he authorized the firm to say.

If it was not authorized, Mr. Margolies clarification of an earlier disclosure would not seem to be permitted. A lawyer cannot bootstrap himself into disclosure of confidential matters.

Let me clear. I am not accusing anyone of anything and my experience with large law firms is that they do not act rashly. There may well be an explanation and we ought to be willing to hear it if and when the proper time comes.

But, as a member of the bar, I am naturally curious about this type of disclosure of a client confidence. I think it is important to raise it because the public ought to be confident that lawyers will respect the confidentiality of their matters.Why was it OK to disclose a confidential fee arrangement?



*It is possible for a defendant in an action brought under the federal civil rights law to recover fees but there are additional requirements imposed by case law (essentially that the position of plaintiff have been frivolous that makes it hard to do.

** Unless Michael Gableman is independently weatlthy, he could not afford to hire Michael Best & Friedrich by the hour on a justice's salary. Anyone who thinks otherwise has never seen a bill from a large law firm. However, matters as complex and important as those presented in his disciplinary matter required retention of counsel of comparable talent. Lawyers like that don't come cheap.

***By way of full disclosure, I was also involved in that case although not the recount. Jim Troupis withdrew, Justice Prosser recused himself and I argued the case which is pending.

****The reason that I say federal review would be linited is because the opinion in the  controlling case, Caperton v Massey Coal Co., repeatededly stated that a federal constitutional duty to recuse ony arose in "unusual," "rare" and "special" circumstances.

***** Apparently, Gableman voted for Michael Best's position five times and against it four times. The three other "conservative" justices, Prosser, Roggensack and Ziegler, broke 4-5, 4-4 and 4-4. As I That difference is not statistically significant. The "liberal" wing - Chief Justice Abrahamson and Justice Bradley and Crooks (to whom the liberal label should be applied lightly) - all went 1-8. This suggests that the outcomes were a matter of philosophy and not some external bias.

Beyond PolitiFact

Milwaukee Magazine's Erick Gunn ruminates on the inconsistency of PolitiFact and other fact checking organizations. His point of departure is the apparent inconsistency between its rating of statements that Paul Ryan's "Roadmap" would end Medicare ("pants on fire" said PolitiFact) and Tommy Thompson's claim to have ended welfare (rated as "true.)

 I am sympathetic. "PolitiFact" was developed by the St. Petersburg Times and is operated in partnership with other media outlets including the Milwaukee Journal Sentinel. It's innovation - if that's what it is  -  is a "Truth-O-Meter" resembling what the Weekly Standard's Mark Hemingway calls an "old school instrument gauge" complete with red, yellow and green lights as well as flames for those statement rated "pants on fire."

 I think it's crazy to say that Ryan's plan ends Medicare (the ad showing a Ryan-like figure pushing grandma off the cliff was reprehensible misrepresentation on a par with the worst of our political advertising) and an overstatement to say that welfare reform "ended" welfare. So while I don't agree that the degree of accuracy of the statements is the same, I do think that the characterizations of them represented by PolitiFact's cute little graphics are further apart than they ought to be.

Gunn refers to Hemingway's recent fiscing of "fact checking" in the Weekly Standard. I just got my copy on dead tree and read it. Hemingway makes a convincing case that media fact checking succumbs to the lack of ideological diversity in the traditional media and an unwillingness to treat as opinions those things that are opinion and to allow for the complexity of issues and the limitations of human language and every day discourse. Its simplistic set of conclusions - reflected in PolitiFact as "pants on fire," etc. - themselves require distortion

I have been concerned about this for awhile but was moved to write by PolitiFact's contorted treatment of  a statement by Media Trackers that was clearly "true" as "false."

 Hemingway cites a University of Minnesota study that provides overwhelming evidence that PolitiFact has a pro-Democratic bias. My impression is that the local operation is more even handed but my problem is independent of any claim of bias. It's one thing to vet a statement and let readers know about it's strengths and weaknesses. It's quite another to reduce that analysis to a simple set of conclusions.

The former might be useful. The latter is not. Doing the former does not require the PolitiFact brand. The Journal Sentinel - assuming it has the reporters -  could avoid paying whatever skim it owes to the guys in St. Petersburg.

I understand that railing against the simple mindedness of PolitiFact is like holding back the wind. We like simple little graphics. But I think the problem is deeper than that.

While the customary thing is to rail against the "unwashed" who supposedly want simple answers and others to think for them, I think that PolitiFact is most misused by opinion leaders who are fully aware of its limitations. It is a source of "gotchas" that is I(back to bias) distorted by the ideological proclivities of the journalists who write it - a distortion that is reflected not only in the analysis of particular questions but in the selection of which questions to analyze.

I'd prefer the paper limit itself to straight reporting. As Hemingway points out that wouldn't solve the problems with "fact checking," but it would make them more manageable.

As for PolitFact's rating system, I rate it "Useless."

Show them

Just as I was worried about the difficulties inherent in validating hundreds of thousands recall signatures, Mike Tate and the Democratic Party unwittingly offer a solution.

Mr. Tate claims to have 507,000 signatures. Good work. Let's start to vet them.

If these signatures are almost all valid. If there is nothing to see here, then why not make them available to the public? Given the GAB's self expressed inability to actually validate the signatures and the recall organizers disavowal of any intention to do so, let's start making copies and get to work.

I don't expect that to happen but what could the justification be for failing to do so. I can think of one. Limit the time available for the opposition, media and regulators to do their due diligence.

I can't think of another. I know we'll hear that the Democrats don't want others raising "frivolous" challenges but we can't know that they are frivolous until we see what they are. That someone may make bad challenges to signatures does not justify failing to produce them or allowing adequate time to make sure that they are valid.

I know we'll hear assertions that the signatures are valid. All the more reason to disclose them.

So let the media and recall opponents get to work.

Or explain why you won't.

No fraud if you won't look

Nice column by the indispensable Christian Schneider on National Review's Corner. I have often written about or told the story of one polling place in Milwaukee on election day in 2004. At one point, there were eight lawyers at the Washington Park Library. We had two GOP lawyers, two Democrats, three from various Democratic front organizations and an assistant district attorney. It was a legal dream team. Some of the people there were rather high end. I guess it's cost between $ 3000-3500/hr.

There could have been rampant fraud taking place two feet from us and we would have no way of knowing. As Christian points out, there are plenty of indicia that something has happened - people registered from commericial and noncommericial addresses, huge numbers registered from shelters or places that could not accomodate the number of registrants.

These could be clerical errors. In the case of shelters, there could be a large number of voters. Or it could be indicia of fraud. I have always said that there is probably not wholesale fraud, but there may be enough to make a difference in close elections. That, in my view, justifies the same type of reasonable steps that we use to ensure the integrity of other processes.

Oh, cut it out

From WKOW in Madison, this report of a guy who took it upon himself to call signers of Walker recall petitions looking for an argument. He apparently took the names from a television story about the recall efforts.

This is hardly the worst thing that we have seen in Wisconsin over the past year. But it is still a stupid thing. Kevin Stoll,of Hartland, ought to direct his energies in a more positive way. Send letters to the media and post comments on the line. Organize on behalf of the Governor. But disturbing people in their home because they have publicly expressed disagreement is for losers.

I understand that there were organized campaigns to call and even to boycott supporters of the Governor and the recall of Democratic Senators. I know that there are times when decorum inevitably deteriorates in response to tactics on the other side.

But this is counterproductive and unfair. Although Mr. Stoll says that his calls were not hostile, he should just stop. Now.

We also see a report that of a Brookfield man who hollered at recall circulators and grabbed their video recording device. Also very stupid. Rude and uncivil.

Recall problems

So what is the GAB going to do in its review of the recall petitions? Apparently - for sixty days and at a cost of $ 650,000.00 - it's going to read the petitions to see if there is something approximating (but only approximating) a name and Wisconsin address. If the name is highly likely to be fictitious, is something like an "X" or if the name or address are illegible, the signature counts because it could be right.

As an undertaking this is not worthless, but it's not worth much. I appreciate the problem. Over half a million signatures are a boatload.

But, as I blogged before, the GAB has done more than decide that it will (or recognize that can) do nothing. It has made itself part of the game by 1) publicizing the spectre of a "false flag" petition operation for which there is no real evidence, 2) combining that with a statement (later qualified) that it's OK to sign more than one petition (although it also  "suggested" that people not "sign a second time unless they have good reason to believe the first petition they signed was somehow fraudulent”)*, 3) announcing that it will not weed out duplicate signatures and 4) now announcing that it will ignore obvious red flags as to the validity of a signature and even count as signatures as valid when the validity cannot be tested because there is no legible name or legible address.

In response, at least one major player in the recall effort has produced material saying that it is OK to sign more than once. One Wisconsin Now posted on its website that some one may "sign a recall petition even if you have already signed another recall petition (note, however, that only one signature per person will be counted)." A more accurate statement would be that you can sign more than once only if you reasonably believe that a petition that you did sign has been destroyed. There are anecdotal reports of recall circulators telling people who said they have already signed that "it doesn't matter."

This is a problem for GAB. Having allowed itself to be used in an effort to encourage multiple signatures, it has further raised the potential for fraud by announcing that it can do nothing to ensure the integrity of recall petitions.

I understand the problems that the GAB faces. There is no clear prohibition against multiple signatures although the agency eventually got around to appreciate that certain multiple signings might violate the anti-fraud provisions of Chapter 12. There probably is no good way to review hundreds of thousands of signature.

But all of that underscores the need for careful messaging and care in deciding how to proceed. GAB did not do that just as it did not take care in treating this year's senate recall petitions by the partisan affiliation of the target, arguably conferring (however unintentionally) a significant benefit on the Democrats. When you are the referee, you have to be trusted as well as right and, in accomplishing the former, appearance matters.

I am not one to accuse the GAB or its staff of bias. But this could have been handled better. A better approach would have been to say from the outset that, while it is illegal to falsify or destroy recall petitions, it is also illegal to sign more than one petition with the intent of having one's name counted more than once. (While GAB ultimately said that, this was not the initial message.)

Perhaps the mess we are in was unavoidable given the inherent unwieldiness of the recall process. But we now have a situation where the agency and partisans can plausibly be charged with, intentionally or not, encouraging multiple signatures while the agency simultaneously announces that it can't do anything about it. It is inconceivable that, were the parties' position reversed, the Democrats wouldn't be besides themselves. They were all too willing to call fraud and question the presumption of validity in attacking recall petitions targetting Democratic Senators last spring.

So where are we?

There are two answers to the threat posed by invalid signatures. The first is that few people would do such a thing. In other words, we are  to believe that in a world in which political fervor causes legislators to be assaulted, death threats to be made, state senators to openly flout their constitutional duties, doctors to openly behave in a unprofessional manner and recall opponents and proponents to confront each other on the streets, we need not worry about fraudulent behavior -  that the responsible agency has announced it will not police.

We already know that it not the casethat "no one would cheat." At least one person has been found who claims to have intentionally signed approximately eighty recall petitions in an admitted effort to "cheat" in order to get "Walker out."**

Are there enough such people to cause a problem? I don't know but here's a sobering thought. Let's assume that there are 5000 people who sign an average of 25 times. That sounds like a lot of people but it's less than 1% of the number needed to recall the governor. Such a scenario would result in 120,000 invalid signatures - over 20% of the total required. While I would think that many signatures from one person would be caught even by the GAB, that's nor clear and there are other scenarios that would be more difficult to detect. The point is that a relatively small number of people can create a significant problem. When recall proponents are telling people that they can sign more than once and when the GAB says it won't look for duplicates, the problem cannot be dismissed out of hand.

The second argument is to suggest that recall opponents will root out the fraud. This is often coupled with an argument that the validity of nominating and recall petitions are normally entrusted to the parties. The latter statement is true, but less telling when we are dealing with as many signatures as we are here. It is not at all clear that opponents will have the time, resources and access to do what the GAB says it cannot.

Having said this, I don't think it is likely that duplicate or dubious signatures will bring the validity of the recall petitions into question. My guess is that the likelihood of this being determinative is small, but that doesn't mean that there is nothing to worry about. We are contemplating the validity of an effort to overturn the 2010 gubernatorial election. That this process not be tainted by concerns about fraud and uncertainty regarding the validity of recall petitions is critical.


* As noted in the text, GAB's statements on duplicates have evolved. Later statement suggested that one "should" sign more than once only "if he or she has a reasonable belief that the first petition signed will not be turned in." In light of the report (referenced above) that someone has signed approximately 80 petitions, Kevin Kennedy said that intentionally signing more than once in order to inflate the number of signatures (or create the appearance of widespread fraud) would itself be fraudulent. Put them together and you've got a fair description of the law but it took us awhile to get there. As noted above, at least one significant recall organization used the lack of clarity to mislead voters into thinking that they had an unqualified "right" to sign more than once and that someone would ensure that their signature "would be" counted only once. The former is not quite true and the latter has been called into question by the GAB's statement of its unwillingness or inability to cull out duplicates.
** While charges were promptly (and rightly) brought against a person who destroyed a petition and an individual who behaved like a boor in confronting recall circulators in Brookfield, this guy - who has clearly done more to harm the process than they have - apparently remains undisturbed.

Shark on Lake Effect

My with Stephanie Lecci on WUWM's Lake Effect cand be found here. We talked about the Governor's initiatives on collective bargaining and the budget along with the aftermath. I closed by hoping that we can learn to disagree robustly - even sharply - but civilly.

A critique of my appearance can be found here - written by someone called Man MKE at Uppity Wisconsin.  The one thing I would point out to our friends at Uppity Wisconsin that the fact that, in economic terms, a union is a cartel is not controversial. A union is a combination of a suppliers of labor who agree to act in concert. The idea is that this will shift the supply curve for labor resulting in some combination of higher wages, lower employment, higher prices and (perhaps) lower profits. Cartelization is the theory behind labor unions and laws authorizing collective bargaining exempts it from law prohibiting agreements in restraint of trade that would otherwise apply.

What I supposedly got wrong is that Scott Walker did not raise taxes because of two small adjustments in the calculation of the homestead earned income credit that, considered alone, raised revenue. But the net impact of Walker's budget was to reduce and not increase taxes. I'll stand by what I said. It is rare that a budget bill will not include things that, standing alone, both increase and decrease revenue. We usually look at the big picture.

I am also apparently wrong in saying that Walker's collective bargaining reform did not save the state money. But here's the thing. You can't argue that there have been 1) devastating cuts that 2) didn't save the state money. We have - by the same measure that the state has used in the past - largely closed a huge budget gap without (as I said) an overall tax increase. Looks like someone saved money somewhere.

I did not say, as Uppity claims, that there were absolutely no reductions in state services. One could hardly expect to close a budget gap of that size without some staffing reductions. But I stand by my statement that those reductions have not been significant. I used the recent DPI survey as an illustration.

Finally, Uppity is upset because it's show skewed right. Really? Three of the five panelist in the opening segment are clearly to the left of center. I am not sure about Mr. Kass and Dave Haynes, who may or may not be more conservative than the average editor on State Street, is known as a fairly straight forward journalist. John Gurda has increasingly given over his column in the Journal Sentinel to paeans to socialism. I'm thinking they did OK.

What I find most interesting in Uppity's response is the reaction to my call for civility. Uppity rejects that call because Republicans "rac[ed] through complex legislation and voting on bills at midnight with constitutionally questionable and very minimal prior notice ...."

Well, no, they didn't. Even if you think that Republicans tried to pass the collective bargaining bill too soon, it wound up being perhaps the most debated bill in the history of the state. (In fact, much of what becomes law in this state is passed "at midnight" and with "very minimal prior notice" as part of the biennial budget.  Act 10 was a bit of an exception.) The venom we see has nothing to do with procedure.

Reading Obama in Osawatomie, part 1

Last week President Obama gave a much vaunted "inequality" speech in Osawatomie, Kansas. It is an awful speech full of the blunt edged demagoguery that is increasingly the President's only rhetorical tool. It is full of misstatements, misunderstandings and irrelevancies. It promises much but delivers little.

So let's undertake a leisurely deconstruction.

Obama suggests that it is heroic for a business to keep its costs higher than they otherwise would be by refusing to produce less expensively overseas:

At a time when the cost of hiring workers in China is rising rapidly, it should mean more CEOs deciding that it’s time to bring jobs back to the United States -- (applause) -- not just because it’s good for business, but because it’s good for the country that made their business and their personal success possible. (Applause.)

Who would disagree with that? Well, I would - and so would most economists. The statement is an illustration of what is so often the difference between conservatives and liberals on economics. The latter focus only on immediate impacts. The former, following Frederic Bastiat, pay attention to what is not so readily seen.

A company that refuses to outsource will "save" American jobs - for a while. Because others will not make the same choice (or foreign competitors will enter the market), the long term result is likely to be a loss of market share or even bankruptcy. Not only the "saved" jobs  - but those of other employees - are gone.

This is the justification for tariffs. If everyone who wishes to import foreign goods must, in essence, pay a fine, then the competitive disadvantage outlined above will be eliminated or reduced.

But the impact of a tariff is to raise the cost of goods to American consumers. This will reduce demand - again reducing employment in the protected firm albeit not by as much as outsourcing - but will also reduce American wealth. Consumers forced to pay higher prices will have less money to spend elsewhere. Other jobs will be lost or not created.

Put another way, Americans will lose the increase in wealth created by buying the same goods at a lower cost. Note that this is  a dead loss. It is not made up by the increased purchasing power of workers who are not replaced. That increased purchasing power is  nothing more than a transfer of funds from consumers to retained workers.

Note that this is true even if the cost advantage is the result of an artificially deflated foreign currency or lower regulatory standards. Either way, the American economy is the net beneficiary of lower costs.

And, of course, neither of these conditions is likely to be sustained over the long run. We once thought that the Japanese were undercutting us with cheap labor. That inevitably changed as Japan became more prosperous. The same thing will happen in places like China and India.

To be sure, outsourcing has a significant (and highly visible) impact on displaced workers. It may be that part of the surplus created by their displacement should be devoted to ameliorating that impact through retraining.

It may also be that certain industries that are strategically significant should be protected for military reasons. But that's an argument that is susceptible to all sorts of mischievous uses.


But Obama's suggestion about what is "good for the country" has it backwards.

Seventh Circuit's decision was not hard

The decision of the Seventh Circuit in Wisconsin Right to Life v. Barland, written by the Hon. Diane Sykes, is well done and clearly correct. It is not groundbreaking in light of the previous decisions of the United States Supreme Court in WRTL v. FEC, FEC v. Davis v. FEC and Citizens United v. FEC.

Those cases make clear that the only justification for restricting support for political speech is the risk of actual or apparent corruption. They also made clear that this justification is not served by restrictions on support for independent expenditures.

In so holding, the Supreme Court rejected the idea that the state may restrict support for political speech by a desire to "level the playing field."

I think that the prior US Supreme Court decisions have it right but, whether or not you agree, the Seventh Circuit was bound to follow the implications of those holdings, That made Wisconsin Right to Life v. Barland an easy case.

So congratulations again to Barbara Lyons, Sue Armacost and the good people at Wisconsin Right to Life, along with their lawyers, James Bopp, and my friend, Mike Dean.

This case does not address the aggregate limit on contributions to candidates. That is a somewhat different case although it may ultimately be resolved on the same rationale.

Recall the Heisman!

I share the disappointment of my fellow Wisconsinites that Montee Ball lost the vote for the Heisman Trophy. Here is my question: Will our friends in Madison start collecting signatures to recall Robert Griffin III?

Misreading the Journal Sentinel on traffic stops

Both the authors of the Milwaukee Journal Sentinel's article on the percentage of African American and Hispanics stopped by the police and blogging lawyer Ed Garvey make a common error of interpretation.

The Journal Sentinel authors cite the fact that blacks and Hispanics who were searched were no more likely to have contraband than whites who were searched (22% in both cases) as argument against the notion that more frequent stops (and searches) of blacks and Hispanics can be justified on non-discriminatory grounds. They write:

After the stop, Milwaukee police searched the vehicles of black drivers twice as often as whites, or one search for every 12 stops. But police found contraband items in searches involving black drivers at almost the same rate as whites - about 22% of the time.

Garvey, as is his wont, announces that the case is closed.

The first question is whether the black and Hispanic drivers had more contraband. In other words, is there some justification in stopping more Hispanics and blacks. They did not! So, no, there is not.

Both Garvey and the paper have it exactly wrong. The fact that blacks and Hispanics who were stopped and searched  were just as likely as whites who were stopped and searched to have contraband suggests (even if it does not definitively prove) that the stops and searches were not racially motivated.

 Here's why. If the Milwaukee police department were engaged in racial discrimination, i.e., stopping persons for "driving while black and brown" then would expect those searches to yield fewer arrests and seizures than the stops and searches of white drivers who have presumably not been selected for discriminatory reasons. Having stopped blacks and Hispanics for no reason but that they were blacks would be expected to yield fewer seizures of contraband among the population subjected to discrimination because there was no good reason to stop them.

The fact that this was not so - that the likelihood of finding contraband in the cars of black and Hispanic detainees was equal to that of finding it the cars of white detainees - suggests that the criteria used for detention was not discriminatory.

Remember these statistics do not show that blacks and Hispanics in general are no more likely than whites to have contraband in their vehicle. That data might support an inference of discrimination. The comparison here involves only those who were stopped and searched.

This is a fairly common misinterpretation of statistics comparing outcomes among different racial groups. To put it in another context, assume that the UW was discriminating against black applicants. One would expect those blacks who are admitted to have higher credentials than the average white admittee. If the credentials for both groups are the same, an inference of even handed treatment is supported.

I expect the sloppiness from Garvey. The paper should have dug a bit deeper.

Who "screwed up" lighting of the Capitol Christmas Tree?

Senator Robert Jauch was upset about Gov. Walker's decision to move lighting of the state Christmas tree to the morning (as opposed to a noon ceremony). Although Walker denies it, Jauch claims that the change was designed to avoid protesters and then blames the Governor for ruining the tree lighting.
"It's normally a joyous occasion," Jauch said. "He has screwed up one of the finest traditions in the state Capitol." 

A small group of yahoos did decide to use the tree lighting as a vehicle for protest. If Walker was trying to avoid providing a background for political theater, who can blame him. If the result was to "screw up" the ceremony, the perpetrators would seem to be those, apparently including Senator Jauch, who can't put politics aside long enough to light a Christmas tree.

More odd PolitiFact heads

I think that many of the PolitiFact articles checking claims made by public officials, politicians and others are very good. On the whole, I think they constitute a worthwhile contribution to public discourse - if you read the articles.

But if all you do is glance at the "Truth-O-Meter," PolitiFact can be highly misleading and obscure more than enlighten. The text of the articles is often measured and insightful but I can find no rhyme or reason as to how it chooses which cute little graphic to run as part of the article.

A case in point is last week's column on a report by Media Trackers that recall petition circulators are not certified and that there is no privacy protection for those who sign petitions. Both statements are true as PolitiFact concedes.

Yet it rates the Media Trackers story "mostly false." How can that be?

PolitiFact jumps on one line in the MediaTrackers' story saying that these facts have "been discovered." PolitiFact then reads this to mean "newly discovered" or "newly developed" and rates the story mostly false. That strikes me as idiosyncratic at best and unfair at worst.

The thrust of the Media Trackers article is that persons who sign recall petitions are making their name and address a matter of public record. That is true and the fact that it has always been true doesn't make it false. It's not at all clear that most people know that and it seems like a reasonable thing to report.

While it may not have been "discovered" in thes sense that it has always been true and some people have known it doesn't undercut the gist of the story. To make the "truth" or "falsity" of the story turn mostly on the use of that term is to pick a nit. This is particularly so combined with the head which makes no reference to any claim of novelty only Media Trackers report that signers are "at risk."

Someone who merely scans the headline and Truth-O-Meter might - in fact would if they knew nothing else - conclude that Media Trackers falsely reported that signers of recall petitions are at risk that there names might be accessed and misused. But that's not false.

How concerned a signer should be about this is another matter. I get enough nasty mail and e-mails that my wife sometimes thinks we should be "unlisted." That is a quaint relic of our past. No one is unlisted anymore.

But, in Wisconsin's current environment, we have seen partisans - generally if not entirely on the left - use public record of political support to harass their opponents. No one should do that to people who sign recall petitions but Media Trackers is not wrong to point out that they could.

Recall concerns

Here is why opponents of the Walker recall might be reasonably concerned about the interaction of  1) the GAB's statement that it is not only "not illegal" to sign more than one recall petition but that voters should do it if they fear a petition might not be turned in, 2) the left's hyping of a so far undetected plot to circulate and destroy false recall petitions and 3) the decision of at least some recall organizers to tell people that they may - and arguably encourage them to - sign more than one petition.

Everyone agrees that the administrative burdens presented by a gubernatorial recall are unprecedented. Determining the validity of over 500,000 signatures and ensuring that there are no duplicates is so difficult that the GAB has pretty much thrown in the towel. Aside from a cursory review for obvious inefficiencies, it intends to presume the validity of the signatures. This, it says, reflects an expectation that those who submit the signatures won't turn in duplicates or invalid signatures and the belief that recall opponents will be able to ferret out anything untoward.

That's how it usually works but there are a few problems here. First, the volume that makes it difficult for the GAB to vet over a half million signatures also applies to the ability of recall opponents to do so. Second, it is, I think, somewhat unusual for recall organizers to explicitly tell (some would say encourage) people to sign petitions more than once. This makes it likely that duplicates could be a problem.

This is so even if it is legal to sign a petition more than once. Contrary to some media reports and blogger claims, state law does not expressly permit this, it simply does not expressly prohibit it. I suppose that one might argue that signing a petition more than once is fraud in connection with a recall petition. Personally, I would not wish to see people prosecuted for that because I believe that criminal statutes ought to be construed narrowly and fraud is, moreover, a matter of intent. But the matter may not be as clear as GAB says.

A closer question might be presented with respect to recall organizers who submit petitions knowing, or with no regard for, whether they contain duplicates. State law is quite clear on the number of individual voters who must sign recall petitions. Arguably, submission of petitions constitutes a representation that the requisite number has been obtained. But if one tells people that they may sign more than once and then does nothing to eliminate duplicates (particularly knowing that the GAB won't do so), has one made a false statement with respect to a recall petition? What if the actual number of individual electors signing is less than the requisite amount?

Again, I don't think that prosecuting people who have not knowingly submitted duplicates in an effort to create a false impression that the requisite number of signatures is a good idea, but we are dealing with a confluence of factors that potentially affects the integrity of the process.

Recall proponents, as near as I can tell, defend their behavior because a couple of guys on Facebook (who could have been anybody or nobody)  said they were going to collect recall petitions and destroy them. The GAB, while acknowledging that it had no evidence that anyone was really planning to do this, issued a much publicized warning against recall fraud that appears to have been used by some as a justification to tell folks that they may -and perhaps should - sign early and often.

Some lefty bloggers are using three incidents in which they claim someone "destroyed a petition" but none of these instances involved the circulation of false petitions. To the contrary, they involved two individuals who grabbed a petition from actual recall organizers and either ripped them up and one who seems to have either tore or poked a hole in the page. This type of thing is alleged to have happened before (including by Democrats) but would not seem to constitute an existential threat to the recall effort that would justify deliberately seeking - or providing -  multiple signatures.

At this point, it would seem that duplicate signatures are a far more serious problem than destroyed signatures. It is, of course, possible that there are "false flag" circulators. Just as I am unwilling to assume that "no one" would engage in fraud when it comes to voter registration and voting, I am not going to assume it away here. Whether that justifies what some might reasonably see as the encouragement of multiple signatures is another matter.

Will this turn into a significant problem? It is quite possible that recall opponents will be able to vet the submitted signatures for duplicates. Perhaps the number of signatures will be sufficiently in  excess of the required amount to make duplicates immaterial. Nevertheless, there is something that is unseemly about telling people they may sign more than once when neither the organizers or the reviewing government agency intend to do anything to eliminate duplicates.

If the recall was going the other way, i.e, if the Republicans were attempting to recall a Democratic governor, can anyone doubt that folks on the left would have the same concerns?

More on the Taylor Property

I am quoted in a Channel Four story on the questions regarding the number of voters registered at an property owned by Senator Lena Taylor. Of course - as is always and necessarily the case with televison newcasts - what could be included in the broadcast is only part of a longer interview. It is my view that the matter needs to be investigated.

In my opinion, the best reading of the law is that a person, to properly register from that address, must have sheltered there for at least ten days prior to the election or, arguably,  to have once established a domicile there and not yet acquired a new one. Given the capacity of the building and the large number of registrants and voters from that address, it is reasonable to question whether this was in fact the case. This is particularly so in light of Senator Taylor's reported statement that her mother allowed the address to be used for voting purposes for people who "come and go" and the large number of voters who were "vouched for" by the elder Taylor.

This is not to say - and I emphasized during the interview and on this blog - that anything untoward occurred. We don't know that yet. It is possible that there is a benign explanation for what appears to be an unusually high number of voters at the address. Nor do I think we should rush to suggest that anyone involved acted with malicious intent. We only know that there are reasons to ask questions. Further detail on how I think the answers to those questions should be evaluated can be found here.

On the other hand, the incident can be seen as an example of why voter registration and practice needed to be tightened.

Some lessons from PolitiFact on staffing reductions

Two things struck me about PolitiFact's evaluation of claims by Governor Walker and WEAC on the impact of the Walker budget and collective bargaining reforms.

First, is the willingness of WEAC to attribute retirements to collective bargaining reform. Continuing to work would not diminish the retirement benefits of any teacher or other public employee. The only reason that one might decide to retire as a result of reform is a judgment that having one's take home income reduced by approximately 5.8% makes continued work no longer worth it.

I am prepared to believe that may happen in some - albeit perhaps not many - cases.  Part of the reason that it may, of course, is the generous retirement compensation and early eligibility that has become so problematic. Still, I am glad to see our friends on the left finally come to recognize the impact of changes in marginal returns on incentives. For just as another 5.8% to the pension might cause some people to prefer retirement, an additional - let's say 5.8% added to the marginal tax rate - might cause some people to prefer leisure to work.

Second, the biggest problem with the WEAC ad is one that the Journal Sentinel misses. The paper argues that it was false to claim that nearly 4000 "educators" lost their jobs as a result of reform because some of these persons held administrative or support positions, some retirements and other staff reductions might have other causes and it could be wrong to assume that district who did not respond the the survey had the same experience as those that did. Fair enough.

But here's a more fundamental problem.

There was a net staffing reduction of approximately 3400 in responding districts.  Roughly half that reduction comes from one district - Milwaukee - where the Governor's reforms were not implemented. Although one might say that these reductions were still attributable - at least to some degree - to reductions in state aid, they also seem to have had a lot to do with the districts' inability to use the Governors' tools for dealing with aid reductions. Those layoff are on the MTEA and other unions, not the need to balance the budget.

Recall challenge may have legs

In yesterday's Journal Sentinel article on the challenge to holding recalls in old Senate districts, Loyola Law Professor Justin Leavitt is quoted as saying that a recent summary affirmance of a district court decision in Mississippi by the Supreme Court "mirrors" what happened in Wisconsin such that the challenge is likely to fail.

Maybe not.

As I argued here and here, courts have not required immediate redistricting after completion of a decennial census. This reflects a pragmatic judgment that state legislatures ought to have some time to complete a difficult task. In that sense, the recent affirmance in Mississippi State Conference of NAACP v. Barbour  is not surprising.

But, as I also argued (albeit in posts written before the Mississippi State Conference decision), it is not clear that the same pragmatic concern applies to recalls held after redistricting occurs. That is not what happened in Mississippi and thus it is unclear what impact the case will have here. Because it was a summary affirmance (i.e., the Court issued no opinion and did not explain its rationale), the issue is unresolved.

Statute of Limitations (and this blog) balance competing goods

My column in Friday's Journal Sentinel and blogging social worker Chris Liebenthal's response were featured on WisOpinion.
I think Liebenthal's criticisms were anticipated and responded to in the column.  He fails to acknowledge that I defended the current - very long - limitations period for such victims precisely because it can take a long time to bring an action.

 But a long period within which to bring suit doesn't mean that there should be no cut off point. He does nothing to refute my point that testing the veracity of allegations about things that happened over twenty years ago is difficult (which is one of the reasons limitations periods are usually a fraction of what they are in child sex abuse cases) and doesn't address the inefficiencies inherent in imposing liabilities - often vicarious - on organizations for actions that happened on the watch of those who are long gone. He doesn't acknowledge that "flashbacks" and "recovered memories" can be wrong. On the merits of the question called, her offers little.

But there is this to say.

Mr. Liebenthal (in a parenthetical) totally misses the point of this blog's title.

He writes that the "shark" "is supposed to represent his skills as a lawyer"* and "[t]he shepherd is supposed to involve his alleged Christian values."*

Completely wrong.

As my reference to Private Joker in Full Metal Jacket makes painfully obvious, the shark and shepherd refer to competing tendencies to competition and cooperation, aggression and conciliation, charity and holding others accountable - in the same person. We are all varying degrees of shark and shepherd and both characters have their own strengths and weaknesses.

Liebenthal's lack of subtlety is reflected in his assumption that someone who thinks that permitting actions to be brought 20-30 years after the fact is a reasonable policy is  "a lousy Christian and even worse human being." This equation of his preferred resolution of the tradeoff between finality and fairness to the accused on the one hand and permitting potentially meritorious claims on the other to whether someone is a good person reflects his own inability to appreciate the paradoxical nature of life and the fact that so much of our policy differences are about resolving competing goods.

We can agree that it is good to allow people to recover from people who wronged them. But it is also good to prevent people who did no harm from being held liable.  Liebenthal's sense of moral self righteousness reflects an inability to recognize the shark and shepherd in his own soul.

But here's a question for Mr. Liebenthal. School districts and other public entities have a variety of legal protections against claims of child sex abuse including a $ 50,000 damages cap and qualified immunity. Does he support repealing them forthwith? Will he publicly urge Sen. Lassa and Rep. Pasch to introduce legislation repealing these obstacles to bring school districts and other public agencies who have sheltered sex offenders (who are no more likely to be found in the church than in the schools) forthwith? If he doesn't, can I say that he's a lousy human being?

*Gracious to the end, Liebenthal takes a shot at both my legal abilities and moral character. On the former, while, of course, deeply wounded by the judgment of an over the top political activist who has repeatedly embarrassed himself with his intemperate blogging and professional misconduct. I'll take solace in my professional reputation, resume and the fact that I have to turn away work. As to the latter, I make no claim of moral superiority (and certainly not over my political opponents) and do not even say that I am a good Catholic or good Christian. I try. I can do better.

.

A framework for evaluating the Taylor story

We have had a series of reports about potential voting irregularities in the past week. Part of the desideratum of those who oppose vigilance on fraud is that it can't happen and has never been proven. That view is wrong but one might point out that jumping all over reports of things that raise the appearance of impropriety and then arguing that impropriety never occurs is a little dicey.

So let's review where we are. The more important story is the report that 36 people are registered to vote from a property owned by Sen. Lena Taylor at which many fewer than 36 people could legally reside.

This does not, in and of itself, establish that anything untoward was going on here. Maybe there was a great deal of turnover at the property. It may well be that no one who voted from that address was not residing (in the legal sense) at that address.

But that's the question, isn't it? I take from media reports that Sen. Taylor's mother vouched (as the law used to permit) that a number of voters resided at the property. In the terms of prior law (since repealed by the photo ID law), she was a corroborator and signed a statement affirming that the registrant was who he or she claimed to be and resided where he or she claimed to reside.

This is where it becomes legitimate to raise questions. A corroborator must know that what she is corroborating is true. Sen. Taylor's own statements - at least as reported by the media - suggest that her mother may have allowed people who were homeless to "use" the address for voting purposes.

Is that legal? Let's look at the law. Residency for voting purposes is defined in Wis. Stat. sec, 6.10. There is no provision that directly address the residency of homeless persons but two that may be thought to apply.

Sec. 6.10(4) provides that:

The residence of an unmarried person in a transient vocation, a teacher or a student who boards at different places for part of the week, month, or year, if one of the places is the residence of the person's parents, is the place of the parents' residence unless through registration or similar act the person elects to establish a residence elsewhere. If the person has no parents and if the person has not registered elsewhere, the person's residence shall be at the place that the person considered his or her residence in preference to any other for at least 28 consecutive days [formerly ten days] before an election. If this place is within the municipality, the person is entitled to all the privileges and subject to all the duties of other citizens having their residence there, including voting.* (Clarification added.)

Of course, a homeless person is not "in a transient vocation" and there are reasons to believe that the issues presented by someone who is - and, for that reason, a person "in motion" - are different than they would be someone who is homeless.

More helpful, perhaps, is sec. 6.10(7) which provides that:

A guest at a national or a state soldiers' home in this state, a guest at a home for the aged supported by benevolence, or a patient of any county home or other charitable institution, resides in the municipality where the home is located and within the ward where the guest or patient sleeps, unless before becoming a guest or patient at the home the guest or patient elects to maintain his or her prior residence as his or her voting residence.

We normally would not regard a homeless person as a "patient" but perhaps we could use this section to argue that a homeless person resides where he or she shelters.

This is the position that the GAB takes. It also permits homeless persons to use "nontraditional" addresses such a a park or street corner that he or she frequents. It is also possible for a homeless person to use his or her last domicile if he or she has not acquired a new one and intends to return to the old one. That approach is consistent with the outcome of litigation in other states.
But this requires some connection with the address. The GAB, for example, permits an address to be used "where a homeless individual may spend time or return to when absent." It says that a homeless person who has "established a residence, ...  may continue to claim that residence as a voting address, even if they no longer physically reside at that location, if they have intent to return." (emphasis supplied) This does not mean that one can simply "use" whatever address one wishes to use.

More fundamentally, under prior law, a corroborator was attesting to an individual's residence. That may mean a number of things. It could mean that the registrant stays in a park that he or she now lists as an address. It may mean that the registrant had established the address as his or her domicile and has not acquired a new one. It may mean that the address is a shelter where the registrant stays. But it does not mean that "I am simply permitting a registrant to use my address because he or she says there is no other."

There is no proof that this is what happened at the Taylor building. But the large number of active registrations there does warrant further inquiry - particularly in light of the fact that a number of the persons voting from that location seem to have used other addresses in relatively contemporaneous court documents. It was not wrong for Media Trackers to raise the issue and not unreasonable to expect an elected official to offer an adequate explanation of what went on.

* As our friend Mr. Foley points out, the version of 6.10(4) in effect at the time of last April's election referred to that place that the person considered his or her residence "10 days" (as opposed to 28 days) before an election. I do not mean to suggest otherwise. My concern here is how to determine whether persons resided at the Taylor building and not whether they were resident there for a sufficiently long period of time. The part of the law defining what constitutes the residence of such a person hasn't changed.

While I don't think sec. 6.10(4) is very helpful, I should point out that, in general, the period during which one had to be resident at a place in order to vote from there was 10 days prior to Act 23 (the voter ID bill). This eighteen day difference could be significant here but I have no reason to think that it is, i.e., the question I'm posing is whether these voters resided at the Taylor property and not whether they resided there "long enough."

Doctors behaving badly

Tom Foley seems to think that I was playing "fast and loose" with legal terms of art when I suggested - last February - that doctors who passed out sick notes to protesters on the Capitol Square who were not sick were engaged in fraud. He is so sure that he repeats it again and again and again.

In fact, he even suggests that I accused doctors of fraud "even though" there was "no finding of fraud" in a stipulation approved by the Medical Examining Board last week. This suggests that I misrepresented the action of the board. In fact, the post he refers to was written in February and was based on video evidence and press reports (including interviews with the doctors who were writing the notes). I stand by what I wrote (and I'll explain why in a moment) but any suggestion that I misrepresented or ignored a "finding" by the Medical Examining Board is wrong.

Let's review the bidding.

The Medical Examining Board accepted a stipulation (in other words, a settlement) disciplining certain physicians for failure to keep adequate records for those that they gave notes to on the square.
The board did not find, as Foley implies, that the allegations that fake sick notes were written were "baseless." The Chair of the board was quoted as saying that there may be "other issues" but that it was not possible to tell what level of evaluation of the patients was done by the physicians before it. She expressed the view that disciplining the doctors before the board for failure to keep records would be enough to ensure that this would not happen again.

In any event, there was no finding one way or another on fake sick notes because the parties decided not to litigate that. Even if they had, people might well draw different conclusions from whatever facts were presented. So let's proceed to what we know.

I express no opinion on the culpability of any particular doctor. I don't know which doctors wrote fake notes or whether any of the doctors before the board last week did so. Nor do I dismiss the possibility - as unlikely as it might be - that some of the notes written for strangers on the Capitol Square were legitimate, i.e., were written for people who did suffer from a medical condition of sufficient severity that they should not work. There is, moreover, a difference between concluding that some members of a group engaged in certain conduct and which members of the group did it in which cases.
But I have no problem with saying that doctors writing notes stating that persons who were well enough to protest at the Capitol were too ill to come to work were engaged in conduct that fits the legal definition of fraud. I have no problem saying that doctors who wrote notes based on no more than some one's representation that they had called in sick were engaged in conduct that meets the legal definition of fraud.

We usually use the word "fraud" in connection with intentional misrepresentation. (There are circumstances under which one can be liable for negligent or strict liability misrepresentation, but it would be less common to refer to that as "fraud.")

Establishing a claim for intentional misrepresentation requires one to establish that (1) the defendant made a factual representation; (2) which was untrue; (3) the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false; (4) the defendant made the representation with intent to defraud and to induce another to act upon it; and (5) the plaintiff believed the statement to be true and relied on it to his/her detriment.

Writing a note misrepresenting that people who are both psychologically and physically well enough to stand out in the February cold marching, holding signs and chanting are "sick" and unable to work is a misrepresentation of fact. It seems reasonable to infer (and, in fact, videos taken at the time include admissions) that these notes were intended to be used by the recipient of the note to induce an employer to excuse that person's absence thereby depriving that employer of its contractual right to withhold pay or otherwise enforce contractual rights (by, for example, firing or taking other action with respect to someone who has refused to come to work).

There is video evidence that strongly suggests those things happening. (And it now appears that some of those notes are going to be released.)

There are persons who claim they were given notes without being examined. There is video of at least one doctor basing the length of an "excuse" on how long the patient says she was "sick" and how long "they" were planning "to go" - an apparent reference to her plans to stay out of work "through next Tuesday." There is someone in a lab coat - presumably a doctor -  announcing that sick notes are being given to "anyone who needs them" because everyone is "sick of Scott Walker."
There is an example of a "patient" (actually Andrew Breitbart) getting a sick note. When asked whether he would get in trouble if he was "perfectly OK," he is told that he has "Walker pneumonia." (He is given the note without any corroboration of his condition other than his statement that he called in "sick" without even describing what his "illness" may have been.)

There are doctors saying that they are writing excuses for people who "need to  be out here"for their mental health or for 'stress." There is another doctor who haltingly says that it is a "socially" OK thing to do because his parents were teachers. Beyond him, we see a line of doctors writing excuses for people who must have come to the Capitol because, hey where else can you get somebody to look at a scratchy throat?

There are persons who say that they, like Breitbart, were given notes without any inquiry as to their condition let alone the type of evaluation you would expect from a physician.
I am hardly the only one who was shocked and dismayed what happened at the Capitol and, in addition to the actions of the Medical Examining Board, some phyicsians have been internally disciplined by the UW.
Now I understand that some of the doctors who wrote the notes seem to think that being upset by the collective bargaining bill is a medical condition that is presumably ameliorated or in some way requires protesting. That doesn't bear scrutiny. While debilitating depression might be a basis for excusing someone from work, that doesn't appear to be the case here. The patients were obviously not "debilitated." That they would prefer - however strongly - protest over work is not the type of medical condition that most all of us - including most doctors - would regard as an illness.

Employers who excuse workers who have doctors' excuses expect  that the doctors who write them will adhere to commonly understood meanings of illness and inability to work. They expect those physicians to make medical and not moral or political judgments. They expect physicians to do something other than simply write a note for persons who say they are sick.
And doctors know this.  If you don't believe me, ask yourself whether any of these doctors would have written a note stating that Mr. Smith was so upset about a piece of legislation that he could not work and had to protest at the Capitol. And if they had written it, what do you suppose would have happened when Mr. Smith tried to use it.

Having said all of this, I don't think that the doctors should have lost their licenses or been charged with a crime or sued by the employers of those for whom they wrote fake notes. All of that seems disproportionate to me.

But neither do I think we should mince words about what was going on.

Ignoring the obvious for almost 50 years

One of the worst political writers in America is Frank Rich. He personifies the worst of the self righteous establishment liberal. Coming upon the 48th anniversary of the assassination of John Kennedy, he writes in New York magazine of the "hate" that "killed" Kennedy, arguing that the resentment directed toward Kennedy by (presumably) conservatives is "eerily familiar" to that directed at Obama today. That hate, he implies, comes from the right.

Kennedy was killed by a self avowed communist.

The knots that the left has tied itself into in order to avoid acknowledging this has always been fascinating. For most of the intervening years, it has tended to blame some unspecified "sickness" in American society. Rich wants to blame the right for the murderous act of a man of the left. Nowhere in the entire article does he tell us who Oswalkd was and what he believed.

DPI survey still looks partisan

Last week, I posted a quick and dirty reading of the DPI/WASD survey on the impact of the biennial budget on school districts. I thought that the survey needs a more thorough vetting but that it seemed to be a polemical document and did not support the claims of disaster that some are making in response to it.

Jay Bullock tries to defend the survey but I am afraid that he totally misses the mark. I have no reason to doubt that a number of districts had some kind of staff reduction. Most did not but it appears that somewhere in the neighborhood of 42% of the surveyed districts did.

But the doesn't tell us much. How deep were the reductions? How do they relate to changes in enrollment? What impact, if any, do they have on the delivery of services. Jay thinks that any reduction in staffing is a catastrophe, writing "[s]o, yes, a lot of districts were able to stave off disaster in this area but, you know, a full third didn't. " (emphasis in original)

Let's take a closer look at these "disasters." As I wrote in my original post, the mean "student/teacher ratio went from 13.27 in 2010-11 to 13.51 in 2011-2012. " Is that a disaster? Looking at median reductions, doesn't change the picture. For example, in the survey's comparison of districts that were "in" and "out" of contract, we see that the median loss for both groups were 1.2 and 1.0 FTE or, as human beings usually say "person." Is that a disaster?

I criticized DPI for excluding Milwaukee from its analysis of "in" and "out" of contracts districts. The defense for doing so was that Milwaukee is an "outlier" and doesn't affect the median teacher loss or "dramatically" impact the weighted average mean loss.

Well, of course (as I wrote), it wouldn't affect the median loss. You report medians to counteract the impact of outlying results. I would, however, like to see how it affects the mean average loss particularly since the mean average losses are so small.

The failure to show the impact is particularily curious since DPI begins its report by giving the aggregate losses across reponding districts which include reductions in Milwaukee. As the Journal Sentinel reports, almost half or the total staff reductions and 38% of teacher reductions were in Milwaukee. Thus, DPI uses the "outlying" district if it serves their anti-reform agenda and doesn't when it might not.

Beyond that, DPI tries to argue that the "reforms" did not help districts because those districts who were "in contract" were not all that different from those that were "out of" contract. But the survey seems to have counted as "in contract" districts who extended their contract by incorporating the compensation adjustments mandated by the reform bill. It is unlikely that those concessions would have been made in the absence of Act 10. A more meaningful concession would be between those districts who adopted the concessions and those (like Milwaukee) who did not. Jay himself concedes - albeit in a backhanded way - that this would have saved a lot of jobs in Milwaukee.

One of my specialites as a litigator is the cross examination of social science experts and results. A cursory examination suggests that a more complete vetting is in order.

Recall is garden variety politics

In response to my post yesterday on Governor Walker, Lester Pines complains that the Governor's motivation was political based on the desire to destroy an institution that opposes the Republican Party and, although he doesn't say it, supports the Democrats. For Lester, collective bargaining reform "was motivated by a desire to eliminate the main opponents of the political and social agenda of the Republican Party, not to ensure that state and municipal budgets were balanced."

Two things. First, reforming collective bargaining is intrinsically tied with balancing state and municipal budgets. The contracts that labor unions negotiate cost money. They add cost not only by increasing wages and fringe benefits, but by imposing a panoply of work rules and limitations on the management of the public workforce that increase costs. If you make it harder to fire poor performers, change job duties and manage in a way designed to deliver the most service at the lowest cost, you make it more difficult to balance the budget.

Second, the political motivations for supporting or opposing collective bargaining as we have known it in Wisconsin cut both ways and, in my view, the fire side equities cut in the Governor's favor. To be sure, the Walker reforms will reduce the amount of money that unions have to contribute to the Democrats and spend in ways that promote the Democratic and left liberal agenda.

But why is that so?

It is so because the unions will now have to convince their members to support their political activities. In the past, unions could compel even those who did not wish to belong to unions to financially support their activities. While employees could ask that their fair share payments not include funds used for political activity, this is an enormously ineffective remedy. First, the amounts excluded as "political" are generally oonly a fraction of the amount that might be characterized as such. Second, money is fungible so even money used to support supposedly nonpolitical activities supports an infrastructure upon which political activities can be based. Third, it is enormously beneficial to the unions to require employees to "opt out." This makes it much easier to collect money than it would be if the unions - like every other organization that spends money on politics - had to convince members to choose to send them money and arrange to collect it themselves.

Eliminating these advantages will benefit Republicans and help Democrats just as retaining them would benefit Democrats and hurt Republicans. But there is no intrinsic right for unions to have them and, in fact, I would argue that retaining them is a serious imposition on the prerogatives of dissenting employees and confers an artificial advantage on Democrats.

Jim Rowen complains that Walker did not campaign on collective bargaining reform but it is unclear how that supports a recall. As George Mitchell asks, would Jim have thought it appropriate to recall Governor Doyle for not campaigning on a tax increase?  Do we want a principle that says that public officials cannot implement any policy that they did not mention during their campaign?

I understand that Lester and Jim don't support the Governor and wish he was gone. Some of us had similar feelings about Governor Doyle (whose record of rewarding campaign supporters was every bit the equal - I would say much more blatant - than Walker's). Somehow we avoided an eternal campaign. But if recalls are going to become just another arrow in the political quiver, the Democrats may be sorry that they started this. Once a restraint on political combat is cast aside, it is almost impossible to go back.