Fast and Furious

Last Friday, I spoke on a panel at the regional Conservative Political Action Conference (better known as CPAC) in Chicago. The subject was the Fast and Furious scandal and its implications for the rule of law. My co-panelists were David Kopel of the Independence Institute and University of Denver College of Law and Maureen Martin of the Heartland Institute.

I had not known much about Fast and Furious before the invitation to speak. It deserves more attention than it has gotten.

Put briefly, the story goes like this. Guns sold to straw purchasers in the southwest, particularly Arizona, sometimes find their way into the hands of Mexican drug cartels. The Obama administration, seeking to justify stronger regulation, has exaggerated the extent of the problem, but it is a problem. During the Bush Bush administration, federal authorities - in an effort called Operation Wide Receiver -  tried to work with the Mexican government to follow guns across the border in an effort to take down the gun smuggling network. Mexican authorities lost track of many of the guns and the operation was shut down.

After President Obama was elected and the administration called out the gun smuggling problem, the ATF adopted a variation of the old operation dubbed Operation Fast and Furious. It was so breathtakingly stupid as to call into question whether it was a law enforcement operation at all.
Like the previous program, wiretaps would alert federal authorities to when straw purchases were to be made. Like the previous program, federal authorities would ask - indeed, often pressure - gun shops to sell to these straw purchasers when, in the normal course of business, the shops would never have done so. Like the previous program, the guns were allowed to "walk" across the border.
Unlike the previous program, there appears to have been no plan - or way - to follow them once they crossed the border. The guns would be "found" only when they turned up at a crime scene. Mexican authorities did not know what was going on. US agents based in Mexico to assist that country's government did not know what was going on.

When the guns did turn up at a crime scene - that is, when they were used to kill someone - it would confirm what we already know. Mexican drug cartels sometimes buy guns in Arizona. It might tell you which ones are doing it because of the geographic location of the crime. It could provide talking points for more stringent US regulation.

What it would not do is help prosecute anyone but the straw buyer - who could have been prosecuted without allowing the guns to walk across the border. The operation violated a number of federal laws.

Fast and Furious was finally exposed when one of the guns allowed to walk into the hands of Mexican drug lords was used to kill an ATF agent in the Arizona desert. Other Fast and Furious guns have been used to kill Mexican citizens.

The Mexican government has called for the extradition of those who were involved.

What has followed is an investigation in which Attorney General Holder and the DOJ have had to backtrack about what his people knew and when they knew it. He has had to claim that he did not read e-mails and other documents directed to him concerning the operation. He has asserted that no one told him about it and that, if they did, he didn't listen. He has jousted with Republicans at congressional hearings about the extent of his department's cooperation with the investigation - most recently last Thursday. Some of the exchanges are Clintonian. At one point, Holder argued that a letter claiming that DOJ in  Washington did not know of gunwalking  - which was retracted when it turned out that Holder's deputies did know about it - was not "false" but "inaccurate."
It would be wrong to claim that Attorney General Holder authorized the program or knew of what it entailed. That remains to be seen. It would be wrong to say that the program was designed to create crimes that could be used to justify more stringent regulation. I can't believe that anyone would be that monstrous.

But it does raise serious questions about the dangers of law enforcement that seems to have been tailored to appease - or at least to impress - political appointees. As David Kopel has written, you should be furious about this.

What has followed is an investigation in which Attorney General Holder and the DOJ have had to backtrack about what his people knew and when they knew it. He has had to claim that he did not read e-mails and other documents directed to him concerning the operation. He has asserted that no one told him about it and that, if they did, he didn't listen. He has jousted with Republicans at congressional hearings about the extent of his department's cooperation with the investigation - most recently last Thursday. Some of the exchanges are Clintonian. At one point, Holder argued that a letter claiming that DOJ in  Washington did not know of gunwalking  - which was retracted when it turned out that Holder's deputies did know about it - was not "false" but "inaccurate."

It would be wrong to claim that Attorney General Holder authorized the program or knew of what it entailed. That remains to be seen. It would be wrong to say that the program was designed to create crimes that could be used to justify more stringent regulation. I can't believe that anyone would be that monstrous.

But it does raise serious questions about the dangers of law enforcement that seems to have been tailored to appease - or at least to impress - political appointees. As David Kopel has written, you should be furious about this.

Cross posted at Purple Wisconsin.

Shark on NPR

My appearance on NPR's OnPoint on Wisconsin's Morning After can be heard here.

Shark on Twitter

So in the past week, I broke down in two ways. First, I opened a twitter account. I can be followed @RickEsenberg. Still deciding what to do with that, but it added to my enjoyment of election night.

I also got (today) and iPhone4S. I still have more stuff in my house with the Beatles' old Apple logo than with Steve Jobs' version. But the gap is closing.

Shark in the Hub

Tonight at 7:05, I will be on Nightside with Dan Rea out of WBZ in Boston. I am told it is heard in 38 states but I don't know where.

About last night

A few things.

First, tonight's results should be kept in perspective. I have lots of liberal friends. I know how I would have felt if it went the other way. I don't share or feel their pain, but I can understand it.


Public officials like the Governor  need to find a way to go forward. Governor Walker's speech was appropriately gracious and I sincerely hope that Democratic and Republican legislators can get together for beer and brats. It won't be easy.

Second, last night was very bad for the Democrats. The gubernatorial race was not close. Turnout was not at the level of the 2008 Presidential election but it significantly exceeded the 2006 and 2010 gubernatorial elections. The electorate was engaged and Walker, after having been vilified for 15 months, did a little better than he did a year and a half ago.

For my entire life (and I ain't young), Democrats have believed that, if they could just increase turnout, their candidates will win. It almost never works that way. They ran a great ground game yesterday. The Republicans ran a better one. More voters meant a bigger margin for Governor Walker.

Third, exit poll results that showed Obama with a comfortable lead are questionable. The same polls showed Walker and Barrett in a close race when, in fact, they were not. In any event, it's a long way to November and the idea that someone who voted for Walker might not abandon Obama for Romney is nothing I would wager on.

As  I write this, it  appears that the Democrats may have won one of the Senate recalls. That's not much of an accomplishment. They tried to pick the three most vulnerable Senators after the largely failed recalls of last summer.  This shouldn't have been hard. In 2010, the GOP picked up a number of swing districts in a heavily Republican year.

The odd thing here is that the district won by John Lehman no longer exists. The now Democratic Senate was unlikely to do much between now and the fall elections. The likelihood that they will hold on in November is slim. Winning that seat is a bit of a consolation, but not much.

Cross posted at Shark and Shepherd home page.

Shark on NPR

I will be on On Point tomorrow on NPR. Live at 9 am CDT in some places but apparently aired at 6 pm here.

A few things at stake

This morning I appeared on the left wing radio and TV show, Democracy Now! hosted by Amny Goodman. I guess you can always learn something because I thought we've had Democracy since 1776!
The likelihood that I would persuade anyone in that audience to view the recall election any differently is on a par with my winning Dancing with the Stars next year. In fact, I am not sure that the prospect for convincing anyone anywhere to view things differently are very large.

But, if you have any doubts, the following is at stake this year.

Recall as the new normal. Politicians can learn. If the Democrats successfully accelerate the election cycle, we can expect to see it again. From both sides. This isn't to say that we'll have all recalls all the time but whenever a politician is seen as politically weak or does something that inflames the other side's base, recall will be part of the potential response. We will have effectively eliminated any presumption against it.
Do you enjoy the permanent campaign? You know what to do.

Responsible budgeting. We have a problem in the US. Democrats want to spend money but won't raise taxes on anyone but the hated "rich." The math doesn't work. Republicans, I must admit, are stronger on tax cuts than spending reductions. Walker departed from this pattern. He tried to make his budget work by lowering the cost of government through collective bargaining reform. To recall him will be to ensure that it doesn't happen again.
Walker made some tough choices. Barrett won't say what he would have done. That's a common thing for politicians to do, but it's not serious. A successful recall would reward it.

New possibilities for government. While much of our rhetoric is "for" or "against" government, Walker's reforms went beyond that. He tried to find a way to avoid tax increases without substantial service reductions. Reducing the power of public employee unions will increase the power of good public employees. Public service won't be strangled by seniority rules or rigid work rules. Merit pay becomes more of a possibility. Government can leave behind the outdated industrial assembly model of labor relations and move into the 21st century.

Or not.

Shark on Lake Effect

I'll be on WUWM (89.7 FM) on the election around 9:30 tonight.

Shark on left leaning TV.

I'll be on Democracy Now hosted by Amy Goodman tomorrow morning. I understand that you can watch the video stream here.

Kumbaya was not on offer

Alan Borsuk wonders if the Governor Walker might have avoided a recall had he talked about his reforms before trying to implement. Could there, he wonders, have been a "kumbaya"" moment?

Not very likely.

The Governor has himself suggested that he might have done a better job of rolling out his initiative on collective bargaining. But there is no way that the Governor and public employee unions would have agreed on a reform package.

That is because changing the nature of collective bargaining was essential to the Governor's vision. As I have written before, a union is a form of cartel. It is designed to shift the supply curve of a labor in a way that results in higher wages and benefits - and more restrictive work rules - than  would result in a free market in which employees bargained individually.

In the private sector, the result is some combination of higher wages,reduced employment and lower profits. As markets have become more competitive, the advantages to workers of unionization has diminshed and private sector unions are in steep decline.

But, in the publice sector, there are no profits to be lowered so unionization can only increase the cost and reduce the efficiency of government.

The problem is exacerbated by the fact that government is not subject to the discipline of the market place and public employee unions become a vested and powerful interest that can place pressure on it in a way that, say, the UAW cannot influence Ford.

Now, if you believe that the government, left to its own devices, would abuse its workers, this may be a price you are willing to pay. Given that almost everyone else manages to work without the protection of a union free of abuse, this seems implausible. But my point is that Walker's objective went far beyond saving some money on pensions and health insurance. He wanted to do for government what the President talk about doing for health care. He wanted to bend the cost curve.

But there is more. Unionization requires an employer to treat its employees as a collective. It tends to preclude or minimize the consideration of individual merits in favor of lock step compensation and emphasis of seniority. In an effort to protect employees from unfair work decisions, unions often protect poor workers at the expense of good ones.

To change this was not an attack on "workers" and "public employees." To the extent, it undoubtedly  saved many jobs and paves the way to treat workers - particularly teachers - like professionals rather than assembly line workers.

But there is no way that it was going to happen without a fight. The Governor has been accused of having a political motivation. Public employee unions tend to support Democrats. (Labor organizations representing over 70% of police and fire employees supported Barrett as did all other public employee unions.) But the accusation cuts both ways. If it is politically advantageous for the Governor to reduce the power pf public employee unions, it was equally advantageous for Democrats to enhance it.

Kumbaya was not in the cards.

Cross posted at Purple Wisconsin

A little more on the John Doe

I will be on Wisconsin Public Radio tomorrow morning at 7:30 discussing the John Doe probe and the Governor's legal fund.

The latest talking point for the Democrats is suggestions by some Democratic lawyers that the Governor is free to talk about the John Doe probe. I have been very careful about what I have written on this. I have a different take than what some of these lawyers have been reported to say. (Although, their actual comments might have been different and, in any event, fully exploring these matters in a few paragraphs is tough.)

Part of the problem here is that no one who has actually seen the secrecy order is free to talk about what it says. We can make reasonable assumptions about what it says, but we don't really know. Those who are subject to it do. Their comments may be entitled to a bit more weight than ours.

But here are some plausible assumptions.

First, it is not the case that one has the right to "protect one's reputation" that somehow trumps a secrecy order. That's simply not true. I have never heard of a secrecy order that has a "reputation" or "recall election" exception.

Second, it is not true that the only way that the Governor could be subject to a secrecy order is if he testified. He also could be subject to the order if documents were subpoenaed from him. He could also be subject to such an order by consent if he was provided with information generated in the course of the proceeding on the condition of confidentiality. I wouldn't think that one would normally do that but , then again, such proceedings do not normally involve a sitting governor.

Of course, If the Governor has been asked to testify or been served with a subpoena for documents, the order would almost certainly prohibit him from disclosing even that.

Third, it is not the case that the Governor cannot believe that he is not a target unless he has been granted immunity. "Target" is not a word that the pertinent statutes use. In common parlance, it suggests that a prosecutor believes that you have done something wrong and is going after you.
A prosecutor does not have to tell someone that he is a "target." If he does decide to tell someone he is not a target, he does not have to (and probably will not) do so in a way that operates as a legal guarantee. This is why people hire counsel and  form legal defense funds when prosecutors start to look at their campaigns, 

But a prosecutor can informally tell someone that he is not a target and a person might reasonably believe it to be so - even if he cannot legally rely on it. That individual may well be confident that there is no basis on which to believe he might have done something wrong, even if his conduct is being investigated. He may, for that reason, be confident he could is not a "target" in the every day sense of the word.

Fourth, it is true that the Governor can discuss matters of which he is aware - or documents that he might possess - independently of the John Doe as long as he does not do so in way that divulges information subject to the secrecy order. The last qualification is important. It may materially limit what someone can and cannot say in such a way that the better (and fairer) course of conduct is to say nothing at all. It is not easy to fight with one hand tied behind your back.

For example, a person who has been served with a subpoena for documents can't disclose what he was asked for. A person who has testified cannot reveal questions and answers. Someone who is being blamed for the conduct of another person who may himself be in legal jeopardy cannot very well ask that person to explain what really happened.

Fifth, the Governor may very well, as he has said, been asked by the DA not to discuss such matters. I cannot assume that the DA "would not do that" because there is a recall election. He might very well believe that public discussion would jeopardize his investigation - no matter who the investigation involves.

Sixth, as I have pointed out, it is not clear to me that the Governor would even have certain of the documents he is being asked to produce.

Finally, "explaining" why you have a legal defense fund may involve waiving the attorney-client privilege. For supposedly "progressive" people to suggest that guilt ought to be inferred because someone has hired a lawyer is astonishing.

I understand the frustration of partisan Democrats, As is so often the case in politics, we have a tendency to believe the worst of people we disagree with. There are reasons that a John Doe investigation is secret. One is to facilitate the investigation. Another is to protect the reputation of innocent people who might be subjected to scrutiny or asked to provide information This investigation has significant implications for the lives and reputations, if not of the Governor (there is so far no evidence that he has done - or even been accused of - anything wrong), certainly of other people who deserve to have their legal rights protected.

If other people are ultimately accused of something, it can be dealt with at that time. To interfere with the process because you don't like collective bargaining reform, want higher taxes or wish that the state gave more aid to school districts last year is just wrong.

More John Doe silliness

The latest Barrett campaign ads on the John Doe continue to be a bit challenged when it comes to things like accuracy. Let's look at a few of the allegations.

First, the ads complain that a private e-mail system that was set up by some Walker employees was "illegal." That isn't true. It could be used illegally but its mere existence violates no law. A commenter to my last post on the subject asks whether it violates the open records law. It doesn't, although it would be a violation if it were used to create documents that qualify as "records" under the law that were then withheld when requested. They may also be subject to certain retention requirements. But not every document created by someone who works for the government is a "record."

If the system were to be used to raise funds from county offices (as the complaints against Wink and Rindfleisch alleged), that would be illegal. Whether other political work would be criminal conduct (as opposed to a violation of internal policy) is a a question deserving it own post. The answer isn't as simple as it might seem.

Second, the ads argue that Walker ditched the "real numbers" on employment. As has now been explained exhaustively, that is also false. All of the job numbers that Walker used are "real numbers" frequently relied on by economists. You can argue that Walker should have sat on the QCEW numbers (which, if anything, are the "real" or best numbers) so that the voters would have gone to the polls ignorant of them. But you can't say that they are not "real."

Third, the ads maintain that there are thousands of e-mails that show taxpayer funds used for Walker's campaign. I suppose there could be but we haven't seen any. The criminal complaints allege that two people raised money for a candidate other than Walker from their county offices. That's not legal but it doesn't amount to taxpayer dollars being used for Walker's campaign.

I could go on but here's the fundamental problem. In response to my last post on the issue which pointed out that the DA's office has had these e-mails for a long time and has not accused the Governor of anything, some commenters argue that sometimes investigations go on for a long time and he might someday issue charges that might involve or reflect on the Governor.

I can't prove a negative. But I am pretty sure that it's a bad idea to recall a sitting Governor because someone has conducted an investigation and has not accused him of anything but, who knows, might do so someday.

As I explained in my last post calls on the Governor to "release" these e-mails are disingenuous. Even if he has them, he does not appear to be free to release them or even to explain them.

But here's a thought experiment.

What would Tom Barrett say if he was called to release all personal e-mails from his staff - those sent on private accounts and from private devices - which mention him, Walker, the campaign, etc.? What would they show?

I don't know. But since we are being called upon to speculate, here's a reasonable surmise. Given the nature of political appointees, I suspect that they would show some political activity by city employees during normal business hours that was undertaken from city offices. That would not scandalize me and, depending on the details, I wouldn't think it would amount to a crime.

But I don't know. I also don't know that the John Doe investigation has or will come anywhere close to an allegation against the Governor.  If I were running for political office, I would hope that I wouldn't engage in speculation, innuendo and distortion about things I don't know.

The limits of compromise

Sunday night I appeared on Bruce Dumont's "Beyond the Beltway" radio program which originated from WUWM. Other panelists included Rob Henken from the Public Policy Forum and Jack Norman from the Institute for Wisconsin's Future.

One of the more interesting topics of discussion was the role of "moderation" and "cooperation." One of the criticisms of Governor Walker's reforms is that he should have "compromised." I am not so sure that criticism works in light of the way in which the Democrats and public employee unions responded, but I want to address the issue more generally.

Compromise can be a necessary tactic. It is often better to get half of a loaf than no loaf and compromise is sometimes required to get a worthwhile thing done. Perfection ought not to be the enemy of the good and all that.

But that isn't what we're talking about here. The Republicans had the votes to do what they wanted. The argument for compromise was not that it was a necessity. The claim is that it would have been good, in and of itself, for the Walker administration to do less than what it was able to do and thought to be desireable. In this view, "compromise" is as much an end as a means. (A similar argument was made by Republicans concerning what became ObamaCare when the Democrats still had 60 votes in the Senate.)

I wouldn't dismiss this out of hand. There is something to be said for incremental change and for acting in  a way that minimizes public discord. When there are many issues and when political fortunes are bound to change, compromise can have a value beyond the issue on which compromise is reached.

But not always. You can't elevate compromise to a principle that trumps the desire for comprehensive reform whenever that reform is opposed by a vocal minority. To do so does not simply enable "things to get done." It ensures that certain kinds of things - fundamental changes - will never be done.

Sometimes existing arrangements need to be substantially altered. People with a vested interest in the status quo will not like it and a certain amount of civic pain may be a unavoidable cost of moving forward.

Getting back to the particular case of the Walker reforms, my own view is that restricting collective bargaining was such a case. Allowing government to jettison the inflexibility that results in public services costing more than they should and being less effective than they can be, e.g., seniority rules, lock step compensation, cumbersome work rules, tenure, etc.,  was a critical. This is particularly so in public education.

I understand that other well-intentioned and intelligent people differ. But appealing to compromise as principle won't resolve that difference.

Cross posted at Purple Wisconsin home page

Much Ado About Nothing

So what about the Governor's legal defense fund? Is there something funny going on? Is additional disclosure required?

Phil Walczak, Mayor Barrett's Deputy Campaign Manager, is sending around an e-mail claiming that the Governor can only set up a legal defense fund under the following circumstances:

1. Scott Walker is being charged with a crime
2. Scott Walker thinks he is being charged with a crime
3. Scott Walker is paying for the defense of crimes
4. Scott Walker has been convicted
5. All of the above

I assume that Mr. Walczak is not a lawyer. But he ought to have sought the advice of one before he sent this e-mail. Tom Barrett, of course, is a lawyer. He ought to be embarassed that such a blatant mistatement of the law has gone out in his name.

You can certainly set up a legal defense fund if you are charged with or convicted with a criminal violation of chapters 11 and 12 (which deal with campagn finance and certain related activity).
But sec. 11.64(1) of the statutes also authorizes the creation of such a fund whenever a candidate or public official or his or her agent "is being investigated for" a potential criminal violation of chapters 11 or 12 of the statutes. You don't have to be a lawyer to understand that being "investigted for" is not the same as "being charged with" or even thinking that you are "being charged with" a crime. Even Mr. Walczak, however he may be gripped with partisan fervor and panic at his guy's lousy poll numbers, should be able to understand that.

To establish a legal defense fund, there need not be an actual violation of the law. There need not be a charge. It is not even necessary to show that you are a "target" in the sense that the prosecutor suspects that you may be guilty or is trying to prove that you are. (As I explained in my last post, you do not necessarily know these things. A prosecutor doesn't have to tell you and is not bound by whatever he or she does tell you.) It is only necessary that your conduct is being investigated for potential criminal violations of the pertinent laws.

Nor is it even necessary for Scott Walker to be the one who is being investigated. If the agent of a candidate or a public official is being investigated, he or she can establish a fund. This is obviously not the same as "paying for the defense of crimes."

The petition calls on the Governor to produce e-mails from what it calls an "illegal e-mail network" in his office. This is a loaded question. First, it assumes that the network was "illegal." I don't know that and neither does Mr. Walczak. There is nothing intrinsically illegal about public employees using private e-mail. It really depends what it was used for. The DA has alleged that two county employees illegally used it to raise money for a candidate other than Scott Walker from their county offices. He has alleged nothing else. Second, Walczak assumes, without evidence, that Walker knew about so-called secret e-mails and that he is in possession of them. I suspect that he does not have them and, in all likelihood, never did. Third, it assumes that releasing such information would not violate a secrecy order issued in the course of the John Doe proceeding. Again, neither I nor Mr. Walczak know that. I haven't seen the secrecy order and I don't know what, if anything, the Governor has and how it relates to the John Doe.

I understand that the Democrats are disappointed that, after a proctological examination that has taken almost two years, no one has accused Governor Walker of anything illegal. But wanting something to be so does not make it so.

Enough on jobs

We are about to get the estimate derived from the establishment survey on jobs gained or lost in April. As reported in this morning's paper, the estimate is expected to be disappointing because the national numbers for April were disappointing. In addition, if Department of Revenue economist John Koskinen's suggestion that our state's numbers are improperly benchmarked and understate economic activity, we  might expect that to continue.

But there are a few things that we know for sure.

First, the claim that Wisconsin lost jobs in 2011 is wrong. Sorry, but an actual count (and the QCEW is pretty close to that) trumps an estimate. The reason that the surveys are used is that the QCEW - as its name suggests - comes out quarterly and even then at a substantial delay. (The numbers that were released "early" are for a period ending almost five months ago - December 31, 2011.) But you can't contradict a count with a survey. That narrative is over.

This isn't "fiction" and it isn't "made up" or "new" numbers. The QCEW is a standard economic measure that the federal government has used for years. The most that can be said is that we don't know how Wisconsin's job gains in 2011 compared to other states.

Second, the argument over monthly numbers is not over which one is the most accurate or the best, but about what they tell us together. This is something that the media hasn't quite gotten to. We are looking at a number of measures - jobs gained or lost based on the establishment survey, jobs gained or lost based on the household survey, the unemployment rate, increases or decreases in unemployment claims, tax collections and periodic measures in personal income growth. All have their strengths and weaknesses. What is significant is that only one measure (the establishment survey) points to job losses. The others point int the other direction. We are normally skeptical of outliers. When most indicators tell us that jobs are growing and the economy is improving, they the ones that are probably right.

Third, the most important thing may be that we are having this debate. Remember, this is not a normal election. It is a recall. The Democrats are asking us to do something that has happened only twice in the history of this country. Having had a number of failed strategies, they now are asking us to do it because they think Scott Walker has "wrecked" the state's economy. If Walker's policies justify making him the third Governor in the history of the nation to be recalled, they better have been pretty bad.

But if they were that bad, we wouldn't need to be having esoteric arguments over quarterly censuses and benchmarked surveys and tweaked numbers. If Scott Walker deserved to be recalled for "wrecking" the economy, we wouldn't need any numbers at all. We'd see newly shuttered stores and homeless encampments on the lakefront. We'd see Detroit.

But we don't. We see a state that is in better fiscal shape than it was a year ago with rising tax revenue. We see a state in which we were told that the new budget would lead to disaster, but where disaster is no where to be seen. To be sure, the budget entailed hard choices and cutting things that we might have preferred not to cut, but those choices were inevitable.

The recall is about a garden variety policy dispute. It is about the prerogatives of the public employee unions and Party of Government being challeged. Let's just admit that and move forward.

Jobs and the Recall

I have been behind in cross posting my Purple Wisconsin stuff here. My take on the emerging job debate can be found here, here and here.

There is a larger point here. If you want to recall the Governor of a state because of jobs, don't you think that you need to have better evidence than what is present here ? If Governor Walker had harmed the state so badly that he ought to be removed from office after one year - indeed before anything that he might have done could have much on an impact - don't you think you ought to have unambiguous numbers - much less numbers that mostly seem to point to job gains rather than losses?

The fact is this: The recall has nothing to do with jobs. It has nothing to do with so called "devastating" cuts with barely discernable impacts. It has everything to do with a direct challenge to liberal hegemony. It is about collective bargaining and the party of government. We won't hear about these things in the three week remaining because they aren't winning issues.

But the recall is about nothing else.

Tom Barrett Has the Vapors

On this first day of Purple Wisconsin, our text is the faux outrage over Scott Walker’s use of the phrase “divide and conquer” in describing the reforms that became Act 10. Tom Barrett pronounces himself “flabbergasted” and is apparently made weak in the knees by the supposed fact that the Governor talks one way to a “billionaire supporter in private” and another way to the public.

Can we please grow up?

Let’s deal first with the claim that “divide and conquer” sounds “nasty.” As the saying goes, politics ain’t bean bag. Outrage at politicians for acting like politicians is like getting upset at dogs for chasing cats. Walker and the Republicans tried to win. They adopted strategies to do so. All politicians do this and all of them speak more candidly about it with their friends. If we were to film Tom Barrett talking with, say, George Soros, we might hear something similar.

Sometimes these strategies involve incremental reform. You take what you can get now and plan to seek more later. To put it in a different context, if you want same sex marriage, you start with civil unions. Later, when the political climate is more favorable, you take the next step. (Cf. President Obama.) If you want to raise taxes generally, you begin with the very wealthy. Divide and conquer? Live with it.

How about the claim that the comments signaled some unstated future plan to adopt “right to work” laws applicable to private unions? “Right to work” laws provide that one does not have to belong to a union simply because a majority of one’s co-workers have decided to join. How you feel about that depends on how you value individual freedom as opposed to concern about someone obtaining the “benefits” of unionization without paying for them. Given that those individuals who choose not to join the union don’t believe that there are benefits – or at least that those benefits don’t justify the cost, I come down in favor of such laws. The Republicans say that they are not on the agenda and there is no reason not to believe him. But I wouldn’t be upset if they were to be proposed.

More fundamentally, however, the comments at issue don’t really seem to be about “right to work” laws in the private sector. Even though the Governor was asked about such laws, his answer was about addressing the fiscal catastrophe that he had inherited. He explained that limiting the power of public employee unions was necessary to get the state’s budget in order. This is, you will recall, precisely what he said in promoting Act 10. In other words, the Governor told his “billionaire supporter in private” exactly what he told the rest of us in public. Perhaps that is why he and Ms. Hendricks were willing to have their conversation on film.

This phony controversy is also ironic.

The comments that make Tom Barrett woozy – the idea that limiting collective bargaining would enable local governments to adjust to unavoidable reductions in state aid – describe precisely what Tom Barrett was able to do after Act 10 was adopted. He was not so “flabbergasted” that he was unable to balance the city’s budget by using the new law’s provisions. What shocks him now is what helped him last summer. What he criticizes today, he embraced then.

Cross posted at Purple Wisconsin

Don't get smug

I am old enough that very little surprises me anymore.

But I was flabbergasted by Tuesday's election results. I literally could not believe what I was seeing on Tuesday night.

There is no way around the fact that the turnout for Scott Walker was highly unusual. As Christian Schneider points out, elections in which only one party has an actual contested primary (and, no, Arthur Kohl-Riggs does not count) generally results in much higher turnout for the party with a contest. Whether it is the Democrats or Republicans, the party with a primary generally sees turnout at 200-250% of the party without. We saw the same pattern in the recent presidential primary. Many more people voted in the GOP primary.

The GOP did about nothing to get out the vote this week. Believe me. I know. My phone never rang. My mailbox was empty. I got a few e-mails but, as GOTV goes, there was nothing. Even talk radio was largely focused on the Democrats.

So what does it mean? The Democrats' turnout was not bad but one wonders how much more there could be. Their story has been that there is a groundswell of popular furor that will sweep Walker out of office. But how many voters could be enraged at Walker and yet not bother to vote in the primary to choose his opponent? You have to wonder how low the ceiling is for the Democrats.

On the other hand, the fact that so many Republicans turned out to case a symbolic vote suggests a large and highly motivated Republican base. It is easy to imagine Walker voters staying home for a primary that meant nothing. You have to wonder how high the ceiling is for the Republicans.

Of course, the Democrats can tell a story. Lots of anti-Walker voters don't care who his opponent is, the unions pulled back their ground game when they saw Falk couldn't win, Walker's support is limited to highly motivated conservatives, etc.

But, among themselves, the Dems have to be shocked and worried.

As for my side, I once tried a case that went on for weeks and involved many lawyers. One of the guys on my side of the case - a wonderful lawyer who is now a judge - would always bring us to earth when we thought things were going well.

"Don't get smug," he'd say.

Don't.

Carroll's Wall

I've been wondering about why the "hate wall" at Carroll college - castigated by Charlie Sykes and celebrated by Laurel Walker - seems  a little off putting.

Charlie's problem seems to be that the messages on the wall will not be seen by others in the way they are intended to be seen. That may be true, but it's not what bothers me.
I think the problem is that the whole project is just a tad too precious and self indulgent. It is supposed to be a blow against oppression but it's really a rather jejune expression of common and conventional wisdom. It is, more than anything else, boring. It does little more than celebrate the virtue of those participating in it.

It's not that the particular forms of racism or sexism or prejudices that the hate wallers want to condemn don't exist. Few forms of human evil are ever completely eradicated. It's that their condemnation is already one of our strongest social conventions.

There are, I suppose, worse things that you can do to your professional and social standing that utter one of the words on the wall in polite company (say rape or murder) but not many.

If that's so, then having a conversation about them cannot simply amount to rejecting or "tearing down" bad attitudes by condemning them. That message - and its corresponding call - is already ubiquitous. If you are in college and haven't learned that lesson, you probably never will.

This where the Sykes criticism comes in. The wall was initially visible to school children who may nopt yet have learned this lesson and are unlikely to appreciate the message of a wall intended for college students.

Putting that aside (they moved the wall), I'm not saying that it was necessarily a bad thing to do. There is nothing wrong with public affirmations of commonly held attitudes. Demonstrations of patriotism are an example.

But I guess it's the affectation of "speaking truth to power" - conveyed by the image of a wall being smashed - that is a little grating. In fact, these students have decided to go after an evil that it is safe and common to condemn. It may be the idea that, of all the evils facing this generation of college students, this one is among the worst. It once was. It now isn't. Tearing down a Wall of the ways in which our culture undermines personal (as opposed to "social") responsibility may have been a bit more daring.

A related, but different, problem may be that the "Wall" is just another example of the phony call by folks on the left to have an "uncomfortable conversation" on race. An "uncomfortable" conversation is the last thing that they want to have.

Free John Edwards

John Edwards amassed a fortune selling junk science to juries. By the grace of God, he did not succeed in selling junk economics to the country - although he's got some some more successful allies in that effort.

He is also, by all accounts, not a very good guy. Vain, dishonest and utterly self regarding.

So shouldn't we root for him to go down in for violating campaign finance laws as alleged in his current trial?

No. He's not guilty.

To be sure, there may have been any number of criminal laws violated by donors providing hush money to Rielle Hunter. There may have been taxes that should have been - but were not - paid.

But was it an improper "campaign contribution?" The government's theory seems to be that any amount paid that would help a candidate's campaign - at least if it was intended to help the campaign - is a contribution.

That's not right. Here is a great post by Rick Pildes at the Election Law Blog explaining why. The problem is that there was neither a contribution or payment of a campaign expense. We know that people can spend money in a way that helps a candidate without it being a contribution. Indeed, it is a long standing staple of campaign finance law that some one can independently spend money for communications that might help a candidate's campaign and that this expenditure cannot be regulated as a contribution.*

I could go on. Suppose that a wealthy supporter of Tom Barrett decides to donate $ 5 million dollars to the City of Milwaukee to put a glitzy new boardwalk adjacent to the Summerfest ground. He announces the gift in a joint conference with the Mayor right before the recall election and praises the Mayor for his leadership. Whether or not this is intended by the Mayor or the donor to help the Barrett campaign, it is not a contribution.

Or assume that a conservative foundation announces that it will give a cash prize to Sen. Mitch McConnell shortly before the election. McConnell intends to use the money for personal expenses and investments. It's not a contribution.

FEC regulations want to treat third party payments as contributions if they would not have been made but for the campaign. But that seems almost impossible to prove or disprove. There are all sorts of payments (I've mentioned two examples) that one might reasonably suspect would not have been made but for the campaign. But the same factors that might cause a donor to support a candidate for public office might also cause her to provide personal support.

Let's assume that Edwards was not running for President. Might Bunnie Mellon have nevertheless paid to keep Rielle Hunter so that Edwards' stature as a leader that Ms. Mellon respected would not be diminished and he could continue in public life. Might she not have done it to save the Edwards marriage?

But it's even worse than that. To get a conviction, isn't it necessary to show that Edwards knew - or at least believed - that the payments would not have been made, as the FEC puts it,
"irrespective of the candidacy."

To make this turn on an after the fact examination of subjective - and potentially murky objectives - seems fraught with vagueness problems. Even if they don't raise to constitutional stature, how could a jury find Edwards guilty beyond a reasonable doubt save for explicit admissions from the principals. 

This isn't to say that paying off Edwards' mistress wasn't wrong or that it didn't, as one witness testified, "smell wrong." It was and it did. As I mentioned at the outset, it may have even violated some other laws. But not the ones that have been charged.

That matters. I have written here in the past about the misuse of vaguely worded criminal statutes for political ends. This article by Rick Hasen reviews the issue nicely and this quotation from the Editors at the National Review, in an article criticizing the Edwards prosecution, puts the problem well:

Campaign-finance laws are a tricky business, because they put political incumbents in charge of setting the rules under which their positions and their power may be challenged. Such laws should be as transparent and straightforward as possible, and prosecutions under them should be undertaken with proper care.

Economics 102

I don't often comment on letters to the editor in the Journal Sentinel but this one caught my eye. A guy named Peter Flannery who says that he is a business owner doesn't think taxes have any thing to do - absolutely nothing he says - with whether his taxes go up. It's all about supply and demand he says. He learned it in Economics 101.
If that's what he learned, he was a poor student. To be sure, lower taxes can't overcome a complete  lack of demand - although lower costs can lead to lower prices that can lead to higher demand. but taxes affect both supply and demand. If, for example, I have to pay higher property taxes, my cost of providing goods or services will go up and that may reduce the demand for my product. Fewer people will pay what I must charge. If I cut my prices to a level that they will pay, I may eliminate or lower my profit to the point where I become unwilling or unable to continue or expand my business.
If I must pay payroll taxes on each new hire, the cost of adding an employee will increase. The marginal increase may make hiring that employee unprofitable given the demand for my product or service.
If I must pay additional taxes on my earnings, it may reduce my rate of return to a point where, again, I am unwilling or unable to expand my business regardless of the existing demand.
Similarly, taxes on my customers may reduce demand for my product. Sales taxes are a simple example but income taxes imposed on my customers may also reduce their demand for goods and services generally including those that I provide. While it is possible that the taxes they pay will fund valuable public goods that increase productivity, it is also possible - and given levels of public spending in today's economy I would say likely - that taxes will reduce aggregate wealth and demand.

Whether and the extent to which these things happen will, of course, depend on the circumstances. If tax increases are modest, tied to income and where adding employees does not require significant sunk costs or long term commitments, the effect on the supply side may be less than in other circumstances. (The demand side is another matter.)

People on my side of the aisle may overestimate the impact of tax increases, but taxes certainly affect both demand and supply.
But, wait, didn't Warren Buffett say that he's never seen anyone scared off a "good investment" by capital gains tax rates. That's a much narrower point than the one Mr. Flannery made, but might it be a worthy amendment of the point?
No. I have not had the investment or business experience of Warren Buffett but in the time that I spent as a member of the senior management team of an international manufacturing business, I observed people expressing great concern - and even being "scared off" - by the way in which taxes would affect the expected rate of return on an investment.
You don't even need to be in business to understand this. We put money in our 401(k) accounts (as opposed to some other vehicle) and probably put in more than we otherwise might because it is tax advantaged.
As Richard Epstein recently wrote, the problem with Buffett's statement (even if one takes it as face value) is that it is the product of sampling error. Anyone who had been "scared off" by capital gains rates would not be coming to him looking for money.

What's going on in the Prosser case

It's a bit of legal inside baseball but the current maneuvering going on in the proceedings on the complaint filed by the Judicial Commission against Justice David Prosser reflects the inherent flaw in the Commission's decision to file the complaint. It is unclear - I would say highly unlikely -  that the Supreme Court will ever be able to act on it.

Justice Prosser's lawyers have filed a series of requests for individual Justices to recuse themselves. I am not sure that this is what I would do if I were in their position. I might ask the Court to dismiss the complaint because it is clear - under both state statute and applicable provisions of the Judicial Code - that there will not be a constitutional quorum.

The problem with my approach (and, I suspect, the reason that is has not been tried) is that the Court has made clear that it believes recusal decisions are committed to individual justices without review by the rest of the Court. I still think I can argue for my approach but let's put that aside.

The Chief Justice is reported to have said that a decision on recusal is premature because the matter is not "before" the Court and, presumably, is "in" the Court of Appeals.

Is that right? Technically, it would seem that the case is clearly "before" the Court. Under Chapter 757, a judicial discipline case is never "before" any other court. It is filed in the Supreme Court and never leaves that Court.

Just as with attorney disciplinary proceedings, the case is not tried by the Justices. Initial proceedings are to be may be conducted before a panel of three Court of Appeals judges or before a jury presided over by a Court of Appeals judge. But either proceeding is before the Supreme Court in that it can result only in a recommendation - as opposed to the panel issuing its own decision which is then subject to further appellate review.

This is reflected in the fact that pleadings in an attorney or judicial discipline case are generally captioned as pending in the Supreme Court throughout the matter.

Of course that doesn't mean that the Justices must act on a recusal request now or that they might not regard it as "premature." In that less formal sense, one might say that the matter is not yet "before" the Justices. The Chief Justice, or any Justice who has been requested to recuse may  decide to defer a decision until after this three judge panel acts.

But I would hope that they do not do that. Here's why.

The proceeding before the three judge panel is pointless if the Supreme Court cannot act on the case. This is not like a normal criminal or civil proceeding in which the decision of the lower court stands even if it cannot be - or is not - reviewed by the Supreme Court. The three judge panel only makes a recommendation that must be adopted or modified by the Supreme Court.
In other words, if the Court can't hear the case, there will be no outcome. It would, in my view, better for the Court and in the public interest to decide now - rather than later - if the case can proceed to resolution.

It would be a different matter if there was reason to believe that proceeding before the panel would clarify the recusal decision, but that seems unlikely. The problem here is that six of the seven justices are either participants in or witnesses to the underlying conduct. All have publicly committed to a version of those events. Nothing in the proceedings before the panel will change or elaborate on that.

Nor does it seem that the outcome of the panel proceeding could make the need to decide on recusal unnecessary. As I have written before, the attorney for the Judicial Commission seems to think that the Court can simply accept whatever version of the facts that the three judge panel has decided to adopt.

That is, with respect, pure fantasy. First, the findings of fact, while subject to deferential review, are nevertheless subject to review. How a judicial officer is supposed to defer to a finding on whether he or she has accurately described what happened in his or her capacity as a witness is beyond me. This is one of the reasons that I think the doctrine of necessity has no role here.

Second, deciding on discipline is inextricably bound up with one's view of precisely what happened. Even if one could put aside one's lying eyes on the question of a violation, it can't be done - and legally need not be done - on the question of discipline.*

Now, you may think that this is no problem. That the five or six or seven justices should decide the case based on what they saw as witnesses. That doesn't look much like a judicial proceeding to me, but maybe you think that the doctrine of necessity compels such a curiosity. My point is that the merit - or lack of merit - in proceeding in this way is as clear now as it ever will be and, I would argue, ought to be addressed now.

This problem is further reflected in the skirmishing over whether or not a three judge panel can be empaneled without an order from the Court. That is apparently the way that is has always been done.
But here, the Judicial Commission wants to argue that it is not necessary. It claims that statutory language empowering the Chief Judge to appoint a judge in a disciplinary case filed with the Supreme Court empowers him to do so without being directed to do so by the Court.

Two things.

First, the Chief Judge of the Court of Appeals apparently doesn't read the statute in this way. He is refusing to act without an order. If he won't do form a panel, it's hard to see how he's going to be made to do it. Can a circuit court (or ultimately his colleagues on the Court of Appeals) order him to do it? Would they? We may found out - and, if they do issue such an order, we may find out whether there is a quorum on the Court when that order results in a petition for review.

I can't help but think that the effort of the Judicial Commission to go forward without the normal order from the Court is ill advised. I understand why a lawyer, as advocate for the Commission, would want to avoid asking the Court for an order to create a panel. It is possible - maybe likely - that he won't get one because there is not a quorum of participating Justices. If so, his case implodes.
Perhaps it is possible to make that implosion less likely if one can proceed before the panel and, hopefully, get a recommendation of discipline. That would increase political pressure on the Court to proceed and, while judges can be pretty good at ignoring political pressure, no one is completely immune.

That's good legal strategy but is it something that the Judicial Commission ought to be doing?
I understand the desire to have what was a very unjudicial episode  reviewed in some way. But considerations of procedural fairness often prevent cases from going forward and that seems likely here.

In that regard, some of the comments by law professors in the Journal Sentinel miss an important point. For example, James Sample of Hofstra is quoted as saying that Prosser is asking to be immune from "basic judicial process." That's wrong. He's asking that "basic judicial process" be respected. I know James. I have debated him twice and I think he's a good and smart guy. But he is as far to the left as I am to the right and I can't imagine that he would be so ready to endorse trial by a intrinsically compromised panel for a garden variety criminal defendant.

Another prof, Keith Swisher of Phoenix, thinks that "the people of Wisconsin deserve a remedy." But that begs the question of what fairness requires and prejudges the matter. There was - and maybe could still be - a better way to proceed. But that's a subject for another post.


* Maybe a different result would be appropriate for the second claim advanced by the Judicial Commission regarding Justice Prosser calling the Chief Justice a bad name. If there are no factual disputes, maybe 5 of the 7 can sit. Whether or not we need to have a disciplinary proceeding for that is, of course, another question. Justice Prosser has already acknowledged and apologized for this remark. His colleagues could condemn it (which is all such a case would ever lead to) but, whether they do or not, is not what this controversy is about.

Redistricting Update

I want to comment a bit on the Attorney General's decision to appeal from part of the final order in the redistricting case. *

Peter Earle, attorney for Voces de La Frontera, denounced the decision to appeal as a "laughable, partisan stunt ....”

Whatever one thinks of Van Hollen's decision to appeal, it is not partisan. In fact, most Republicans that I have spoken to thought he should not appeal. As far as they are concerned, the redistricting case was a complete win. The Republican plan was upheld on 97 of 99 Assembly districts (including everyone that the GOP would ever have a chance to win) and all 33 Senate districts. All eight Congressional districts still stand. Why bother?

Earle and his group wanted to use a claim under the Voting Rights Act to tear apart the legislative redistricting plan. They were unsuccessful in doing do and all of their other claims were rejected.
But they were able to convince the panel that the VRA required packing even more Latino voters into the 8th Assembly District than the legislature had done. While they wanted the Court to use this finding to affect more than the 8th and 9th Assembly Districts, it refused. It ordered only that the boundary between 8 and 9 be redrawn while leaving the outer boundaries of the two districts is intact.

The result is an even safer district for JoCasta Zamarippa. Good for her and her allies at Voces. It may also make it harder for Latino voters to form a coalition with non-Latino voters to elect a candidate of their choice in the 9th. Bad for people who care about that.

But the one group that had no political stake in the outcome was the Republican party. They were never going to win either the 8th or 9th Assembly District and have no partisan interest in how the lines between them were drawn.
The reason that I think Van Hollen has decided to "bother" with an appeal - in fact I can think of no other reason - is that he thinks the panel is wrong on the law and he wants to ask the Court to clarify just what the Voting Rights Act requires. Maybe he'll turn out to be wrong (although I don't think so) but it strikes me as a perfectly appropriate thing for the state's chief legal officer to do.

I understand a lawyer not wanting the other side to appeal when he's won something but it happens. Indeed, it's quite normal and we usually don't castigate our brothers and sisters at the bar for doing their job. In any event, accusing the Attorney General of partisanship for doing something in which he and his party have no partisan interest is should we say, strained.

* Full disclosure: I represented Jesus Rodriguez and Hispanics Leadership as an amicus supporting the Government Accountability Board's proposed redrawing of Districts 8 and 9.

Meet the New Boss

There were people - and I think there still are people - who think Barack Obama is a cut above other politicians. He's an exceptionally intelligent person who promised to free us, as he repeatedly says, from "false choices" and to usher in a new era of progress. Hope and change. Yes we can.
He is a smart man but it turns out he that he is given to heap demagoguery.The Buffet rule is an example.
We all know the facts. It is simply not the case that rich people, as a class, pay a lower effective tax rate than the middle class. In fact, they pay a higher rate. .
Now, it is true that, depending largely on how one earns one's income, a wealthy person can wind up with a lower effective tax rate than people who earn much less. But that is not so much a function of tax shelters and loopholes as it is a product of a deliberate policy choice - one that has a long pedigree and that is common in the developed world. We tax capital gains and dividends at a lower rate than ordinary income.
There are many reasons for this. There is a sense in which taxes on capital gains and dividends can be seen as "double taxation" since corporations typically pay tax on their income before paying dividends to shareholders. Capital gains often arise from the sale of corporate stock in which the price represents earnings that have often been taxed. Capital gains are, moreover, earned over time such that the gain can have a significant inflationary element. (This can, however, be the case for certain types of ordinary income as well.)
There is also a fair amount of evidence that raising capital gains rates reduces revenue because it triggers tax avoidance and deferral strategies.
Having said all that, I actually would be open to taxing ordinary income and capital gains at the same rate as long as we indexed the basis for capital assets. Maybe one can even make a case that the current capital gains rate (15%) could be raised a bit without causing disproportionate economic harm.

That's a debate that we could have but it is not the debate that the President has called for. Instead he wants a new form of Alternative Minimum Tax which is almost always a mess. It results in marginal rates that are opaque and often steep. Even if you want to raise taxes on the rich, it's the wrong way to do it. Economists of differing views think it's bad policy.

And it will bring in very little money.
But it polls well.

Primary Update

In 30 comments to last week's post on "fake" candidates, no offered any refutation of the points that I made and I have yet to read one any where else. No one has been able to dispute that the use of recalls is an attempt to accelerate the election cycle and put a variety of partisan offies on the ballot. No one can deny that, when we normally have multiple partisan elections, primary and general elections are held on different days. It is indisputable that holding a down ballot general election on the same day as a primary for only one party at the top of the ballot will give one party an advantage that it would not normally enjoy. There is no question that running canddates in the Democratic Senate primary is an attempt by the Republicans to level the playing field.

No one has been able to offer an argument that this is illegal. Sec. 8.20(2)(a) provides that a declaration of candidacy include a statement that the filer wishes to be "placed on the ballot at the (general or special) election to be held on (date of election) as a candidate [(representing the (name of party)) ...."

In other words, the candidate declares his or her intent to be placed on the ballot in a party's primary.

There is nothing in this statement that requires a candidate to affirm that he or she is a member of the party or believes in any of the various positions that the party (or most people in the party) hold. The law has never been used to enforce an ideological litmus or loyalty test on candidates and never could be.

No one has been able to point to anything that is intrinsically wrong with this attempt to level the playing field. It might be a different case if the candidates in question were misrepresenting their actual positions and running hard to take votes away from Democrats.But that's not the case.

One commenter did say that it's a waste of money and there is, to be sure, a small cost involved. An additional office has to be added to some primary ballots and someone has to count the votes. But, given the distortion that would accompany holding a down ballot general on the same day as a top of the ballot primary in only one party, it's not a waste of money.

More False Outrage About Fake Candidates

One Wisconsin Now and some bloggers seem to think it is illegal for the Republicans to run "fake" or "placeholder" candidates in the Democratic primaries. One blogger, Chris Liebenthal, cites Democratic election lawyer Jeremy Levinson in support of that position.

I know and like Jeremy Levinson. I respect him and, in fact, he was gracious enough to accept my invitation to speak to my Election Law class last week. But he's wrong about this. Very wrong - as the GAB seems to recognize.

The argument is that filing nomination papers to appear on the ballot to force a primary violates Wis. Stat. sec. 12.13 (3) (a) which provides that no person may "falsify any information in respect to ... [a] declaration of candidacy", and sec. 12.13 (3)(am) stating that no person may "... file a false declaration of candidacy or amended declaration of candidacy." Filing for a Democratic Party primary when one is not a Democrat and doesn't intend to campaign is, on this view. "falsification."

But it's not. The declaration of candidacy to be filed by these candidates is not due until tomorrow. But, based on press reports, there is no reason to believe that anything on those statements will be  false. In other words, the filing candidates will be who they say they are, live where they say they live, be qualifed to run, etc. On the GAB form, one simply avers that he or she is a candidate for an office representing a particular political party, i.e., that one is a candidate for that parties' nomination. These documents do not include any representation that the candidate supports the party, its principles or even that he or she does not belong to or support another party. Indeed, the statute requires nothing more in this regard than an affirmation of candidacy.

Isn't the fact that someone is a "real Democrat" implied?
No - at least not as the law is concerned. Criminal statutes are to be strictly construed. There is no chance that prosecuting these candidates would be successful. There are ways in which Wisconsin could try to protect parties from "outsiders" - and there are some states who employ such devices, e.g., closed primaries. But Wisconsin does not.

So, even if it is "legal," isn't it "wrong?"

No. I fail to see what is intrinsically wrong with the Republicans' strategy. Running candidates in the Senate primaries can be seen as a response to the extraordinary - and arguably unanticipated - use of recall elections as a devise to accelerate the election cycle and flip partisan control of the legislature.

We usually hold primaries and general elections on different days - even if there are not contested primaries for a particular office. One of the reasons this makes sense is to prevent a primary in one party from distorting the result in down ballot races. Assume, for example, that there is a heated race for the Republican Senate nomination this fall and no contested contested primaries of any significance on the Democratic side. If we accelerated the general election for, say, Secretary of State because neither party has a primary, we would distort the outcome of that race. People are far less likely to turn out for that office than for a contested primary at the top of the ballot. The electorate will be more heavily Republican than it will be on the day of the general.

The recall statute doesn't do that because it is predicated on the assumption that recalls will be directed at a particular office holder for something that he or she has done or failed to do and not as a generalized effort to accelerate the partisan election cycle based on policy disagreements.

But even if that is not the assumption, the fact remains that, if there are no primaries in the Senate recalls, then there will be "general" elections for the Senate at the same time that there is a a primary in only one party in  much higher profile race in which it is far easier to turn out voters.

This gives the Democrats an advantage that a party would normally not enjoy. We generally do not hold primaries on the same day as general elections. I understand why the Democrats want to hold on to that advantage. I understand why the Republicans don't want to let them have it.

The law permits the Republicans to take that advantage away and I fail to see what is unfair or mischievous about it. The upshot is that we will have a primary day and a general election day. That is how we normally conduct elections in this state. Acting to make that so does not unfairly "disadvantage" Democratic candidates.
Running candidates for  Governor and Lt. Governor seems superfluous given that there is going to be a Democratic primary. One reason to do that would be to ensure there is a primary if, for some reason, you want more time before the general election. That may serve some strategic advantage for the Republicans but hardly seems to disadvantage Democrats in an intrinsically unfair way.

It will also present the type of gamesmanship that we have saw last summer when the Democrats had candidates register and file nomination petitions and declaration of candidacies, but then (after nominations are closed) fail to file statements of economic interest so that they could not be certified on the ballot. That would have the effect of unexpectedly accelerating the recall election.

If that suggests to you a bit of inconsistency in the complaints about fake candidates from the Democratic Party, it should.

The President, Judicial Review and Judge Smith

So, of course, the President's statement that it would be unprecedented for the Supreme Court to invalidate a law that was passed by a "strong" majority in Congress is wrong and, for a law professor, seems breathtakingly stupid. There are legal academics on the left who have come to be opposed to judicial review but no one would say it is unprecedented. Law students learn in about the first week of Constitutional Law that it is very precedented - that it is, in fact, one of the cornerstones of our constitutional jurisprudence. Ask any lawyer to tell you about Marbury v. Madison. It's one of the few first year cases, he or she will remember by name.

But President Obama is not breathtakingly stupid and we are reminded - constantly - that he taught constitutional law as an adjunct professor of law at Chicago. He knows that what he said is wrong.

The current White House spin is that he meant to say - in fact did say - something different than the meaning of the words he chose. I don't believe that. Indeed, he could have said that it would be rare (it wouldn't be unprecedented) for the Court to invalidate a Congressional enactment predicated on the Commerce power.

But a nuanced statement like that would not have served his purpose. It would have invited an argument about legal technicalities and not about the legitimacy of the Court. It would have been dismissed by most people as an argument between experts and that would not do.

Obama may be trying to influence the Court. It would be a big thing to strike down Obamacare - not because it would be unprecedented or even unpopular, but because it place the Court and President in conflict on a major national issue. That happens but it is always uncomfortable.

In making his statement, the President signalled that he intended to exacerbate such a conflict. He intends to go after the Court and make it an issue in his reelection campaign. While some liberal commentators, while forced to admit that the statement itself was nonsense, have said that it is not much of an attack, it is also the case that the Court has not yet ruled. This is a signal of what is to come and was intended to be read as a signal of what it to come.

So I have some sympathy for Judge Jerry Smith who, in the course of proceedings on a different challenge to the health care law, asked the DOJ to clarify its position on judicial review. I understand why he felt compelled to do it.

But, in the end, I think he ought not to have done it. The President of the United States was engaged in silly political posturing for which he has been, and richly deserves to be, slapped down.

I think it would be better for federal judges to stick to knitting and ignore the antics of politicians - even the President of the United States.  What he said was wrong. We all know it's wrong. Let's attend to the law as it is.

Republicans' Secret Weapon?

If I didn't know better, I'd suspect that Graeme Zelinski was a Republican Party plant -  dirty trick. I would find it hard to believe that a political party would want its spokeperson to act in the way that he does.

If I didn't know better.

Compulsory Compassion and Freedom

In his classic book, The Road to Serfdom, Friedrich Hayek wrote about the ways in which the movement away from classical liberalism toward socialism threatens the advances that classical liberalism has brought, including individual freedom. When one seeks to order society from above, the refusal of those below to act as they must constitutes interference with the grand plan and must be, if not eliminated, strongly discouraged.

Becoming our brother's keeper - particularly when we are compelled to do so - implies that he truly be "kept" - not only assisted but directed to act in a way that facilitates our assistance.

Isn't the individual mandate a perfect example of this? The justification for this infringement upon the liberty of those who do not wish to purchase insurance is said to be the legally mandated compassion that will provide the care that they cannot afford.

The notion that people not be permitted to act in a way that makes it more difficult to help them has no obvious stopping point. For the left, compassion most often dictates restrictions on economic freedom. But might not social conservatives argue that compassion requires limits on self destructive personal behavior? If I am to be my brother's keeper, then I need to fight an aggressive war on drugs because they will frustrate - and raise the cost - of my efforts to help those who might take them. My brother  should not have children out of wedlock. He ought not freely divorce his wife when there are children at home.

People will answer these questions in different ways but movement toward greater degrees of collectivism increases the frequency with which they must be asked. Obamacare is an extraordinarily ambitious effort to manage a large area of human interaction - to achieve better outcomes than its advocates think will be obtained through the voluntary interactions of individuals. It's not surprising that it requires extraordinary limitations on personal freedom.

Even if we avoid the temptation to micromanage personal conduct, we will inevitably be tempted to choose between deserving and undeserving objects of our compassion. While choices in life are inevitable and compassion can never be unlimited, collectivism centralizes these decisions. It tends to make them uniform.

It takes an extraordinarily sanguine view of human nature and of the capacity of elites to properly order society not to be troubled by this.


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Obamacare and Coercion

We moved our offices last week so I have not had much time to look at what happened in last week's Supreme Court arguments on Obamacare. Day three was probably the best one for the government but let's not get carried away. The government's "good day" involved asking whether it had acted with the tender mercies of La Cosa Nostra. Had it made the states an offer they can't refuse?

Up for consideration was that feature of the Affordable Care Act that requires the states to substantially expand eligibility for Medicaid. The Constitution quite clearly forbids the federal government from requiring the states to adopt - or to dictate the nature of - social programs, so the Act uses an old tried and true trick. If the states refuse to do federal bidding, the Secretary of Health and Human Services is empowered to eliminate all Medicaid funding for the state. (The cost of the expansion is also to be paid for completely by the federal government at first and then at 90% after that, although there is - and can be - no guarantee that this will continue.)

This trick - justified under Congress' implicit authority to spend to advance the "General Welfare." Courts have long justified that money spent by sending it to the states can come with all sorts of strings attached extending the federal writ where it might not otherwise have run.

There is a substantial criticism of these cases. In a forthcoming book, The Upside-Down Constitution, Michael Greve argues that the use of the spending power in this way constitutes an uhholy alliance between the states and the federal government in which both substantially evade accountability for policy decisions.

But the permissibility of this approach is well established and the Obamacare case is about its limits. The Supreme Court has suggested the possibility that federal money with strings attached might be coercive of the states and, if so, impermissible. The Court has never found this to be the case. Might this be the first time?

How can giving someone money be coercive? There are two ways. The weaker arguments are that a deal can be too sweet to say "no" to or that states have become dependent on federal money that they have effectively ceded their sovereignty,

A stronger version is that the states are faced with an offer that they can't refuse. These programs are not truly "opt-in" or "opt-out." The citizens of any particular state have to pay for the federal program whether or not their state participates. Seen in this way, Wisconsin can only "opt-out" of the benefits and not the costs.

Seen in this way, the larger the program - particularly the larger the loss of benefits - the more it is likely for participation to be no choice at all.

Is the Affordable Care Act such a case? Here we saw a bit of reversal from the argument on the individual mandate. With respect to the individual mandate, certain of the Justices were looking for a limiting principle on the power of Congress. With respect to the Medicaid expansion, they were looking for a triggering principle on coercion. Just when does an offer become one that a state can't refuse?

The core of Act 10 survives

On Friday, the United States District Court for the Western District of Wisconsin upheld the core of Act 10's reform of collective bargaining, i.e., it upheld the Act's prohibition of collective bargaining on terms and conditions of employment other than total base wages. It upheld the limitation on increases in collectively bargained base wages. It upheld the right of public employees to decline to support the union.

The only aspects of Act 10 that it found unconstitutional were the requirement of annual recertification elections and the prohibition of payroll deductions to collect dues from those employees who choose to pay them. The state could adopt either of these provisions, the Court recognized, but held that it could not adopt them for only those public employees who are not public safety workers (essentially police and fire.)

This is, largely, a victory for the defendants and you can be sure that the plaintiffs will appeal. Because of that, I am not going to write much about it. The Wisconsin Institute for Law & Liberty represented a group of public employees who moved to intervene in the case as defendants and to file an amicus brief. Friday's decision denied the former motion (there are currently, in any event, no further proceedings in the district court into which to intervene) and granted the latter motion. Because the case may continue at the appellate level,  there is only so much that I feel free to say in a blog.

There is, however, one fact that ought to be kept in mind when reading press reports of the case. It is not quite right to say that Act 10 exempted only public employees whose unions supported Governor Walker. The only public employee unions that supported Walker were the police and fire unions in West Allis and Milwaukee. The union representing all other police and fire employees - over 70% of the total - endorsed Barrett.

Day Two of the Arguments

I would not hazard a guess on what today's oral argument portends for the future of the Affordable Care Act. It's dangerous to read too much into what the Justices say at argument and, as my NCAA brackets suggest, prognostication is not my forte.

We know the drill. Congress does not have plenary power but only those powers granted to it by the Constitution. What gives it the authority to require people to buy insurance?

Most of the argument today centered on the power of Congress to regulate interstate commerce. This is a power that has been interpreted quite expansively since the New Deal and may extend to activities that have an sufficiently strong impact on commerce or are necessary and proper to effectuate a Congressional scheme of regulation.

But I think it's fair to say (as I did on Charlie Sykes' show this morning) that a majority of the Court is concerned about the implications of upholding a law that regulates not existing commerce, but future commerce and that concerns itself, not with commercial activity, but with personal activity. These justices are looking for a limited principle.

I say a "majority" because there was little sign that the liberal wing of the Court is troubled by this at all. Justice Breyer, in particular, seems to have an expansive - I might even say unfettered view - of Congressional authority.

To my mind, the limiting principle suggested by Solicitor General Verelli is ad hoc and not persuasive. The idea is that health care is unique not simply because the failure to purchase insurance will drive up the cost for others but because the consequences of that failure will be borne by the community and not by the uninsured person. We will pay for his care whether or not he is able to do so.

Paul Clement, arguing for the 26 states who have challenged the law, seemed to have a rather strong response. The failure of someone to enter a market (in this case, by refusing to insure) will have an adverse impact on those in the market in any number of cases. If, for example, I choose not to buy a car, I will adversely affect the employment prospects of those who work in the auto industry. They may lose their jobs and go on welfare. If I do not buy an electric car, the price of those cars will stay high and fewer people will be able to afford them. The industry will be stillborn and whatever salutary impact on the environment more electric cars would deliver will be lost.

The government tried to save things by arguing that health care is unique in that almost everyone will need it at some time or the other. While there are other things that everyone needs - perhaps even more reliably than health care - such as food, shelter and clothing - the argument is that no one knows when they will need health care and the cost may be such that self insurance is not realistic.

There are still a few problems. First, it is not at all clear that everyone will need health care in this sense or that much of what the Affordable Care Act requires people to insure against fits the definition of unpredictable and catastrophic expenses. Routine health care may not be as predictable as the need to buy food, shelter or clothing but, over time, one can have a pretty good idea of what it will - or is likely - to cost.

Second, it is not at all clear that, even with this elaboration, Clement's point about the non-unique nature of health care is refuted. There are a number of things that might qualify such as, for example, retirement or disability. In fact, it is for this very reason that Congress enacted social security but, in that case, it imposed a tax and conferred a benefit - something that it could not get the votes to do here.

Finally, if health care is unique, why can't Congress mandate many other things that would affect that market other than mandate the purchase of insurance. Why can't it conclude that the failure to purchase healthy foods or belong to a health club imposes costs on other participants in the market justifying Congressional regulation?

There is more to be said but I think that the case may turn on whether or not Anthony Kennedy can be persuaded that there is a limiting principle. He did not appear to have settled on one during oral argument but, again, what is said during argument may not mean much later on. He expressed concerns that did not seem to be met with a very satisfying answer.

Yesterday on Charlie Sykes show, I suggested that Justice Scalia might not be a certain vote against the mandate. This was because of his writing in a prior case involving medical marijuana (the government's best cases involve wheat and weed). I thought, however, that Scalia would ultimately be unwilling to endorse a view of federal authority as expansive as an affirmation of the Affordable Care Act would require. Based on yesterday's argument, the likelihood is that my concern was unwarranted and my ultimate conclusion correct. He does not seem to buy it at all.

What is clear is that, contrary to the view of most legal academics over the past generation, the Affordable Care Act will not be upheld unless the Justices casting the deciding vote are persuaded of a substantial limiting principle. It is not clear that principle was articulated yesterday.
Some commentators have suggested that, if Justice Kennedy votes to uphold the Act, Chief Justice Roberts may join the majority to have greater influence on whatever the limiting principle turns out to be and to avoid a 5-4 decision. That could be. Others have suggested that the Chief won't want ObamaCare to be struck down by a single vote. But, if it is to be struck down, it's hard to see how it won't be by one vote.

There was much less discussion on whether the mandate can be upheld as a tax. I may post on that later. It just doesn't seem like a majority believes it.

Redistricting Struggles

So what to make of the manuevering following the panel decision in Wisconsin's redistricting case. Lots of spin. Some irresponsibility.

There appear to be three major talking points from the Democrats. One is that the legislature should now take up the entire map. Another, slightly differing take, is that the Democrats should limit themselves to fixing the Voting Rights Act violation found by the three judge panel but disregard the court's admonition that this be done within the outer boundaries of Assembly District 8 (the district found to be inconsistent with the VRA) and Assembly District 9. This would probably require changing the boundary of Senate districts because one cannot split an Assembly district between Senate districts.

Of course, neither of those things can or should happen. The three judge panel made clear that, while it would (quite properly) give the legislature the first crack at addressing the violation, it did not believe that the legislature should do anything other than change the boundary between Assembly Districts 8 and 9 without altering the outer boundaries of those districts.
In this, the panel is on solid legal ground. Recent Supreme Court precedent makes clear that courts are to alter only so much of a legislatively drawn plan as to remedy whatever violation has been found. The panel has made clear what it regards the scope of the remedy ought to be and, while that is not binding on the legislature, it effectivey delimits what the Republicans ought to agree to.

The Court has made clear that it will lift its injunction against Act 43 if the boundary between 8 and 9 is adjusted to create the type of majority Latino district it believes is required. It has also made clear that, if it has to draw the line, that's all it will do.
And properly so. If you think there is a VRA violation (and I think the panel may well turn out to be wrong on that), it remedies the violation and defers to the legislature on the rest. It leaves all of the Senate districts - none of which were found to violate the law - in place.

While some have suggested that it is not possible to create a Latino majority district (as the panel sees it) within the confines of Assembly Districts 8 and 9 as originally drawn, that is not true. The alternative proposed by the plaintiff's expert is within those boundaries although it would create an odd looking "donut hole" shaped Assembly District 9. In any event, I understand that there are several ways to avoid that without creating an odd shaped district.

There is no chance that anything other than an adjustment to the boundary of Assembly Districts 8 and 9 will pass the Assembly or be signed by the Governor. There is little chance that it could even pass the Senate. Again, there is no reason why it should. The rest of the plan has been found to violate no law or, for that matter, to suffer from any other infirmity that would not be matched by other plans.

So unless the Democrats are willing to limit themselves to the only remedy that the panel said is legally required, there is no reason to revisit the issue in the legislature. In fact, doing so may well violate the state constitution. While I believe that prior case law interpreting the state constitution to permit only one redistricting every ten years cannot restrict the legislature's attempt to correct a legal violation or settle a legal challenge, going beyond what the panel has now said is required would be neither of those.

Some bloggers have claimed that refusal to bring the legislature back to address this is "defiance" of the panel. This is nonsense.

First, the legislature is under no order from the court because the legislature was not a party to the litigation. Second, if it is "defiance" to refuse to bring the legislature back when the Democrats have demonstrated that to do would be futile, why is it not also "defiance" for Democratic legislatures to announce that they do not intend to limit themselves to doing the only thing that the panel has indicated must be done to go forward.

I would not accuse either of "defiance." I don't get the vapors when politicians act like politicians. I do think the Democrats are trying to get something that they can't get but there is a bit of a twist.

More on that later.