A challenge to a certain form of campaign contribution limits

A column yesterday by Dan Bice discusses a lawsuit that I and my colleagues at WILL brought on behalf  of Fred Young challenging Wisconsin's aggregate contribution limits. I think a few more things need to be said on the matter.  Here they are.

The sub head of the column suggests that Mr. Young "wants campaign giving limits abolished." That is not entirely accurate. While proposed legislation raises the maximum that can be contributed to a single candidate, his lawsuit has nothing to do with that. It does not challenge the limitation on contributions to a single candidate or even to seek to have those limits raised.

Instead, it challenges the overall limit on the contributions to all candidates combined - what is generally called the "aggregate limit." (Bice refers to it as a limit on the amount of contributions that can be made "cumulatively" - which strikes me as a broader - and different -  concept, combining temporal with cross-recipient limits.)

This is how it works. In Wisconsin, the maximum limit on a contribution to a candidate for state wide office is $ 10,000. The aggregate limit on contributions to all candidates is also $ 10,000. So, if Mr. Young - or anyone else - makes a perfectly legal campaign contribution of $ 10,000 to a candidate for Governor, he can give no more to anyone else that year - not even a candidate for the school board.

I know of no other state with an aggregate limit that is so stringent in relation to the overall limit. (In fact, most states don't have aggregate limits at all.)

This is why the fact that we are challenging only the aggregate limit is important.

The United States Supreme Court has long made clear that contribution limits burden the rights of free speech and association. This is not, as is often said, an assertion that "money is speech" but a recognition that the First Amendment protects the right of candidates to speak effectively and for persons to band together to promote candidates and causes. These rights require the ability to spend money. The First Amendment would be meaningless if all it protected was the right to stand on the corner and holler at passing cars.

This recognition of the impact of contribution limits on speech and association is not, incidentally, a product of the Court's 2010 opinion in Citizens United. It goes back to the Court's 1974 decision in Buckley v. Valeo.

So it has long been recognized that contribution limits implicate First Amendment rights.  But the Court has also said that they may be subject to reasonable limits for one reason - to reduce the risk of corrupting the recipient, i.e., to prevent an unstated quid pro quo; a promise to take some particular action in exchange for a contribution. The idea is that maybe there is a level of contribution to a candidate that is so high that there is an inherent risk of this form of corruption or its appearance.

But - and here's the important part - the Court has also made clear that this is the only justification for limiting contributions. They may not be restricted to equalize "access" to politicians, to reduce the voice of large donors, to keep "money out of politics" or to level the playing field. This limitation on the contributions restrictions is also not a product of Citizens United. It was first announced in the 1974 Buckley decision and made absolutely clear in a 2007 decision involving Wisconsin Right to Life.

The Court has also made clear that the government cannot limit contributions on the basis that a candidate will "appreciate" contributions to someone else - either other candidates or independent organizations.

This is why aggregate limits cannot stand. The state of Wisconsin has decided that a contribution of as much as $ 10,000 to a candidate for state wide office (and lesser amounts for lesser offices) do not create this risk of corruption. Once that interest is gone, it has no interest in limiting the number of these "non-corrupting" contributions that a candidate may make. In other words, aggregate limits do not serve the only constitutionally permissible justification for limiting a citizen's right to contribute to candidates of his or her choice.

This is why we filed our lawsuit and we are hardly the only ones. A challenge to the federal aggregate limit is currently pending before the United States Supreme Court. (WILL filed an amicus brief in that case.)

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More on diversity, UW and the WCIJ

Last week's contretemps over proposed legislation forbidding the Wisconsin Center for Investigative Journalism lead to a disagreement - somewhat overstated as a smack down or cage match - between Charlie Sykes and Mark Belling with the latter being for the proposal and the latter rather strenuously opposed.

My own reaction was to use it as an example of the perils of the UW"s indifference to intellectual diversity. When you set up yourself up - not as a place where all ideas are explored and many views are free to contend - but as a collection of faculty and institutions that are ideologically homogeneous and with a culture that is repressively conformist, this type of payback is what you get. You get it even if , as may be the case here, the target leans only (by UW standards, at least) moderately to the left. You get it even when, as may be the case here, the attack is politically foolhardy.

Of course, I may be ascribing motives to the legislature that it did not have - it being suggested that the whole affair was the product of a single legislator who didn't like a particular story written by the WCIJ.

Belling, as I understand it, suggests that an entity like WCIJ has no place on campus. I don't think that's right. Nor do I agree with suggestions that a group like WCIJ ought to have no ideological or philosophical perspective.

An organization or scholar can have certain preconceptions about the world - how things work and how competing values are to be weighed - and yet do quality work of high integrity. Indeed, if you spend any significant amount of time studying law, politics, economics, etc., you are almost certainly likely to migrate to a particular set of positions. Indeed, not having a stance may be more probative of a lack of qualifications than an assurance of integrity or quality.

In light of that, Sykes may be right in suggesting that going after the WCIJ is unfair and politically tone deaf. My guess, in nay event, is that there is no way this provision will stay in the budget.

But, in discussing this issue, I prefer to acknowledge the elephant in the room. If the UW wants respect for academic freedom and the respect that ought to be accorded an institution that fosters the pursuit and consideration of ideas, then it must deliver the goods. In the social sciences and the law, it has a long way to go.

Cross posted at Purple Wisconsin

Did UW pay for a lack of diversity?

The indignation has begun over the legislature's "attack" on the Wisconsin Center for Investigative Journalism. No one should be surprised. The UW - and universities across the country - have no one to blame for this type of thing but themselves.

The Wisconsin Center for Investigative Journalism may do good work, although the example given in news accounts of Wednesday's action - breaking the story of the altercation between Justices Prosser and Gableman - is not an example. That was actually pretty shoddy work. What is hard to deny is that it is funded by left-leaning organizations and has a left-leaning bias - as does almost every part of the UW engaged in policy work.

And that last part may be the problem. There is nothing wrong with a group like the Center for Investigative Journalism having a perspective on the world. There even could be nothing wrong with having a Soros funded organization like the Center (funded operation at a public university - or one funded by the Koch brothers.

But there ought be some balance.  There is no way that the UW would tolerate a conservative counterpart of the Center for Investigative Journalism.  Imagine, for example, the MacIver Institute with offices in Vilas Hall.

You can't.

I don't know why the legislature did what it did. Don't know anything other than what I read in the paper. But when public universities shun intellectual diversity - as the UW has indisputably done - they ought not to be surprised when people decide that it may not be wise to allocate public money to fund one side of the debate.

I understand that the reaction to this will be denial. But anyone who believes that the leftward tilt of universities is the result of unimpeded inquiry doesn't know very much about universities. They are wonderful in many ways but they are among the most conformist institutions in our society.

If this were not so. If the UW occasionally roused itself to promote a diversity of ideas, I'd have more sympathy for the Center. In any event, not being able to occupy Vilas Hall will hardly cause it to shut down. Rent is cheap.

I do have concerns about that part of the proposed legislation that says no one can do work "related to" the Center as part of their employment at the UW. That does strike me as a very broad proscription that is incompatible with academic freedom.

Cross posted at Purple Wisconsin.

It's not about WE Energies

One of the things that I have advocated for Purple Wisconsin is that the bloggers engage each other. Quite frankly, the initial group of participants – particularly those on the left – had no interest in that. One, at least (who no longer participates) seemed actively hostile to the idea.

So I’m happy that Alex Runner wants to respond to an earlier post that I wrote on the Milwaukee Streetcar Project. I am always happy to hear from him.

But, unfortunately, he completely misses the point of my post or of the proceedings that I and my colleagues at WILL have brought before the Public Service Commission.

He thinks that I am concerned about WE Energies and don’t understand what a “sweet deal” it has.

Actually, with all due respect, I am not concerned about WE Energies at all.  Those folks are more than able to watch out for themselves.

Oh, and I do appreciate the nature of a regulated utility (you don’t have to “work in city government” to learn that) although I’m not sure Alex does. Because WE Energies is a monopoly, it has certain privileges and advantages that a different kind of business would not have. But it is also subject to certain types of regulation that a different kind of business would not be - including price controls.

So I fully understand that they will probably be able to pass the cost of utility relocations on to ratepayers.

That’s precisely the problem.

Although you wouldn’t know this from reading Alex’ post, the matter that WILL brought before the PSC was not brought on behalf of WE Energies, but  on behalf of the ratepayers who do not want to contribute to the cost of the streetcar. Because they have no place else to go and the utility will, in all likelihood,  be able to pass the cost on to them, ratepayers have the right to challenge municipal ordinances and actions that would impose unreasonable costs on them.

In other words, Alex has it exactly backwards. The reason that there is PSC oversight and we invoked it is not to augment the privileges of a regulated utility but to protect ratepayers from the consequences of those privileges - in this case, the ability to pass on municipally imposed costs that the rate payers have no ability to avoid by, say, going and getting their electricity elsewhere.  

It is certainly true that utilities can be forced to absorb the cost of relocation occasioned by certain public works. The question before the PSC is whether the street car project is the type of project that rate payers can be forced to absorb. Asking the PSC to decide this is not an intervention in “the free market.” There is no “market” involved.  

I am also concerned about good government. WILL has no position on the street car, but I, as a citizen, do. Here it is.

The Milwaukee Streetcar project takes a technology that was abandoned over sixty years ago and proposes to return to it notwithstanding that demographic and economic changes have made it even less feasible that it was in, say, 1948. Streetcars are less efficient and use more energy than just about any other alternative. They clog traffic resulting in both economic losses and environmental harm. This one promises to be among the worst because the route does not connect two points between which a large number of people wish to travel but was chosen to lay the foundation for a larger system that has absolutely no chance of ever being built. (Of course, Milwaukee used to have city-wide streetcar system that was torn out because it clogged traffic and its ridership went into the tank. Now that the city has fewer people and more of them have cars, I’m sure it will do much better.)

Put simply, if the city had to pay for the street car, it would never be built.  I know that. Mayor Barrett knows it and, I think, Alex Runner knows it. A project like this can only happen because of a separation between who makes the decision and who pays the bill.

Alex suggests that we ought to value “local control,” “local government” and “ local taxpayers.” I agree. But you don’t get local autonomy unless you have local responsibility.

 

Cross posted at Purple Wisconsin

Today's Voter ID decision could have legs

I hate to say that I told you so. I really do. But not enough to refrain from saying it.

I have always thought that the argument that voter identification is unconstitutional because it imposes an "additional qualification" on voters to be imaginative but fundamentally flawed. The argument is that the Wisconsin Constitution says that the legislature may require voters to be over 18, citizens of the United States and residents of the districts in which they seek to vote. It says that the legislature may provide for registration and disqualify certain categories of voters, i.e., felons and persons who are incompetent. But, the argument goes, since the Constitution doesn't say the legislature can require photo identification, it can't.

The problem doesn't take a legal genius to identify. Photo ID is not an "additional qualification" outside of those listed in the Constitution, it is a means to ensure that the qualifications that the legislature can and has enacted are complied with, i.e,. it is a way to ensure that the person who seeks to vote is that person over 18 who is a United States citizen and resident of the district who has registered to vote.

Now you can argue that this is unnecessary or may not be the best way of doing that, but the courts don't get to decide what is "necessary" or "best." As the Court of Appeals ruled today, the legislature may enact reasonable election regulations so long as they are not so burdensome as to effectively deny the right to vote. Because that hadn't been proven, photo ID had to stand.

Today decision, in a case called League of Women Voters v. Walker, does not disturb a separate injunction against the law in NAACP v. Walker which remains pending before a different district of the Court of Appeals.   

However, it may very well result in reversal in NAACP as well. Here’s why.

Today’s decision makes clear that, under the Wisconsin Constitution, the legislature may enact reasonable election regulations unless a challenged regulation is so burdensome that it effectively denies potential voters their right to vote. This is not the standard that was applied by the court in NAACP. While we believe that case ought to be reversed and dismissed, it would appear that, at minimum, the Court of Appeals must vacate the NAACP decision and send the case back to the circuit court with instructions to apply the proper standard.

Full disclosure: Along with my colleagues at the Wisconsin Institute for Law & Liberty, I filed an amicus brief in League of Women Voters on behalf of a diverse group of community leaders, including a former lieutenant governor, a journalist, a retired Milwaukee police detective who specialized in voter fraud, and leaders in the Hispanic and African-American communities, urging that the court show appropriate deference to the legislature and the law be upheld.


Cross posted at Purple Wisconsin

The IRS scandal may have been unavoidable

As the IRS scandal plays itself out, there are three competing narratives. The first two look for whatever it was that motivated IRS workers in Cincinnati to target groups that seemed to be pushing conservative or libertarian causes. One theory is that a command came from the top - whether by express command or by the persistent demonization of the political opposition by our rather demagogic President and others in his administration. The other is that the genesis was the union that represents revenue agents. These theories, of course, are not mutually exclusive.

The countervailing theory, pushed heavily in Sunday's New York Times, is that there was no motivation - that this was just a misbegotten effort to "rationalize" the office's workload that just happened to target groups that the administration and union does not like. Sort of a screwed up form of serendipity. Wrong, but fortuitous.

There is, however, a fourth theory, It is that this particular form of abuse was baked in the books. There are certain parts of our society - think university faculties, legacy media operations and certain government offices - that are extraordinarily intellectually homogeneous and conformist. The assumption the groups like the ACLU or Voces de la Frontera who advance highly controverted  conceptions of the public good about which persons of different partisan persuasions differ - are somehow political and advance goals that "everyone" shares is in the air.

Organizations that advance different ideas about the public good - preferences for limited government and individual liberty in areas other than personal behavior - are seen as - here's one for you - the "other" - people who advance goals that "everyone" does not share and who are, therefore, "political" in a way that the ACLU and Voces are not.

If that's so, then no one needed to call for behavior that almost everyone know recognizes are reprehensible. It arose organically.

There is a lesson there for people who believe that ideological diversity is not important - that professors, reporters and bureaucrats are super men and women who can somehow arise above the biases that weigh down the rest of us.

There is a lesson there for those, like our President, who tell us not to fear concentrations of power because we can trust centralized decision-makers to behave in neutral and enlightened manners. One of the reasons that conservatives and libertarians prefer markets is not that (as the left mistakenly charges) that we think markets and business are always right, but that markets and businesses are far more likely to be allowed to fail when they are wrong.

The tragedy is that these lessons are likely to be lost on those that most need to learn them.

Cross posted at Purple Wisconsin

Pro-life and Pro-state?

My Purple Wisconsin colleague Alex Runner has written a nice post about what he sees as the implications of being pro-life. To be truly pro-life, in Alex' view, requires the support of some level of government support for persons with unwanted pregnancies and other redistributive programs.

Up to a point, of course, very few people disagree with that. While Democrats act like Republicans want to completely abolish "social safety net programs," I have run across precious few who actually do. (My own view is that such programs should be generous, temporary and contingent; but that's another topic.)

What Alex means is that, to be more effectively pro-life, Republicans ought to support more goverment spending than they do.

It seems to me that relatively little of our current political squabbles are about the social safety net, by which I mean support for person who, without aid, would be in poverty. ObamaCare, Social Security, Medicare, public employee collective bargaining, tax rates - all of these may touch upon social safety net programs but they are primarily about persons who are not poor. Indeed, neither political party spends much time talking about poor people.

So I might stipulate that effective anti-poverty measures are a good thing. But that leaves much to talk about. Here are a few points that I would raise in response to Alex' thoughtful post.

First, there is no necessary moral connection between insisting that human life not be taken and one's willingness to cover the costs associated with not taking it. It may well be expensive - and hard - for you not to kill your child. That doesn't meant that society has to hold you harmless for doing the right thing.

Second, the most effective anti-poverty program has been capitalism. There is no close second. Government subsidies will always be a poor subsitute for a prosperous society. The War on Poverty pulled very few people out of poverty. While it certainly offered some amelioration of the condition of poor persons, it did so quite inefficiently and in a way that has done little to improve the long term prospect of beneficiaries. To the extent that high levels of taxation and redistribution retard economic growth, they may be more likely to create than reduce poverty.

Third, safety net programs are not an unalloyed good. They can foster dependency and retard family formation. To the extent that they do this, they often an awful bargain - immediate relief in exchange for long term destitution. In the great run of cases, the goverment will never be able to do for you what you can do for yourself. It will never be able to provide the support that a family can.

Indeed, I would argue that one of the tragedies of modern liberalism is it's willingness to believe that the state can function as a person's family. It cannot. Christian Schneider's excellent report on the state of marriage in Wisconsin and supporting op-ed reflect what is perhaps the largest cause of poverty and dysfunction in our society. Government contributed to it, but, unfortunately, can do little to reverse it.

Finally, assistance to poor persons is not the exclusive province of government. Alex complains that private charity is too often inadequate but, if that is so, the extent to which government "crowds out" the activities of what are sometimes - but not quite accurately - called subsidiary organizations is part of the problem and not solely a solution. My own view is that, while government social programs will probably always be necessary,  we ought to have a strong preference fo private charity. It does not involve coercion and is less likely to foster the kind of dependency and counter-productive behavior associated with public programs - precisely because it can make the kind of moral demands and provide the moral support that a bureaucracy cannot.

Cross posted at Purple Wisconsin.

Best wishes for Mr. Zielinski

News is that Graeme Zielinski has resigned from the employ of the state Democratic Party. There is no sense in sugar coating Graeme Zielinski. He cultivated a singularly mean spirited and hateful public persona. One can only hope it was an act. That he actually believed the things he said is a scary thought.

My own view is that these scorched earth verbal ejaculations are of little value and counterproductive. But folks on both the left and right continue to indulge them, so I suspect I am wrong. Maybe they keep the base riled up and make some headway among the undecided - and largely uninterested and uninformed - voters who decide close elections.

Still there are things that are bigger than politics. He says he is facing a "health scare" and I wish him well.

When he comes back, I hope he will have learned something. You can have strong opinions without hating people who disagree.

Cross posted at Purple Wisconsin

The lessons of serial scandal

As George Will suggests today, the real import of the perfect storm of scandal that has surrounded the Obama administration isn't that it highlights the dishonesty and political venality of the current administration.

To be sure, the extent of corruption and will to power that is suggested by the Benghazi lies and the abuses of the IRS and DOJ are disturbing but what it even more concerning is the way in which the source of this wrongdoing was baked into the Obama administration from the outset.

More than most, the presumption of the Obama administration was that it would do very big things.  The assumptions were that 1) the country is a very troubling place and 2) "progressives" have the knowledge and capacity to make it better. There were relatively few limits to this hubris. From the day of his nomination, Obama literally promised to make a new world; to "begin to" heal the sick and stem the rising of the seas.

The arrogance of this is jaw dropping. The overpowering self righteousness was always at risk of dissolving into self-justification. If indeed we are charged with righting a cruel and indifferent and self destructive nation, then it is imperative that we remain in power. If we are the ones that the world has been waiting for, then little things like politics (i.e., the opinions of others) and procedural regularity are mere distractions.

"What difference, at this point,  does it make" that we deliberately misled the public about a terrorist attack that resulted in the murder of an American ambassador if that's what it took to ensure the re-election of the President? The IRS and AP events were wrong, but certainly ought not to cause us to worry about the Government managing our health care and histories. Do not fear the threat of tyranny, the President tells us, even as we see it all around us.


Will puts it this way:

Liberalism’s agenda has been constant since long before liberals, having given their name a bad name, stopped calling themselves liberals and resumed calling themselves progressives, which they will call themselves until they finish giving that name a bad name. The agenda always is: Concentrate more power in Washington, more Washington power in the executive branch and more executive power in agencies run by experts. Then trust the experts to be disinterested and prudent with their myriad intrusions into, and minute regulations of, Americans’ lives. Obama’s presidency may yet be, on balance, a net plus for the public good if it shatters Americans’ trust in the regulatory state’s motives.

Cross posted at Purple Wisconsin.

Here's the truth about the streetcar legislation

There have been repeated public reports that the Joint Finance Committee has approved a provision in the budget that would "block" the Milwaukee Streetcar Project. These reports are inaccurate.

The legislation would not prevent the City of Milwaukee from building a streetcar or using federal funds for a street car or  for any other local transit project. All it would do was prevent Milwaukee - or any other city - from forcing utilities to relocate embedded infrastructure without compensation.

Here's why that matters. To build the street car line, WE Energies and a variety of telecommunication utilities will have to relocate utility facilities - cables, pipes, etc. - that are buried in the street along the proposed use. Exactly now much this will cost is unknown, but it could be as much as - if not more than - the projected cause to build the streetcar itself.

The City of Milwaukee has budgeted nothing for these costs. It proposes to force the utilities to move these facilities at their own expense and, presumably, pass that cost on to ratepayers. In other words, people in places like Waukesha and Racine will wind up paying for much of the cost of a street car loop in downtown Milwaukee.

Current law provides that this may occur only if the Public Service Commission finds that imposing such costs on utilities is reasonable. This is the issue that I and my colleagues at the Wisconsin Institute for Law & Liberty have raised before the PSC on behalf of Brett Healy and 34 other WE Energy rate payers. (We were subsequently joined in raising the question by a number of the potentially affected utility.)

The issue is complex, but one of the arguments that we have advanced is that the imposition of these costs is unreasonable because the street car is "proprietary" in nature, i.e., it not an exercise of the police power to protect the safety, health and welfare of the public but an attempt to engage in an economic enterprise intended to confer a local economic benefit. This distinguishes it from things like road expansions and other projects for which utilities can be made to relocate facilities at their own expense.

In these circumstances, we have argued, the City ought to pay for what it wants. If the street car is the wonderful project that it is claimed to be, then the City of Milwaukee ought to pay for it.

The proposed legislation simply requires that they so say. It only provides that shifting these costs to rate payers who have had no say in whether the project ought to be built and who, for the most part, could not benefit from it is unreasonable as a matter of law.

If it passes, the City remains free to build it's street car. It must simply pay for the utility relocations. If the legislation does "kill" the street car, City residents don't want to do pay for it.

Purple Wisconsin blogger Jim Rowen suggests that the legislation would violate a 12 year old agreement resolving litigation over an earlier Environmental Impact Statement regarding local transit obligations.

No way. That agreement does not commit the state to any particular project nor does it require that the local funding of any approved project be arranged in any particular way. It is expressly subject to state law and does not - and could not - require that state law be configured in any particular way. It's a desperate argument. It won't work.

Our petition to the PSC was not about the merits of the street car project. But, I have to say, that the justification for the project is astonishingly weak. A street car is a technology that was found to be outmoded and undesirable almost seventy years when fewer people had cars and the population was not as dispersed as it is today. The operating costs of street car per both vehicle and passenger mile are much higher than buses. They are able to move less people than buses. They use more energy per passenger mile. They are notoriously slow and cause traffic congestion. They are, in most applications (there are a few exceptions not applicable here) a notoriously bad idea that would seem to require a theocratic devotion to anything that runs on rails to support.

If the City doesn't want to spend its own money on this, I won't be surprised. But, if that is what happens, it will the good sense of Milwaukee taxpayers and not this legislation that "killed" the streetcar.

Cross posted at Purple Wisconsin.

Milwaukee County's Board of Supervisors: You could not make us up!

If someone bent on reducing the size, compensation or powers of the Milwaukee County Board of Supervisors had installed Manchurian Supervisors - sleeper agents primed to act like a pack of idiots at a time calculated to hurt the Board politically - she could not have done better than the current - and presumably authentic - crew of Dimitrijevic and company.

I don't believe in conspiracy theories, but, if I did, we'd be through the looking glass with this bunch. You have to want to look bad to bad to foul up so thoroughly.

Let's assume that you are an ardent opponent of Act 10 and an active supporter of decertified county unions. You could do one of two things.

You might recognize that, while these unions are no longer certified collective bargaining agents, they are still associations of the county employees who choose to belong to them and that they are free to advocate for certain working conditions. You could meet with them. You could listen to them. You might even vote for the terms and conditions that they want.

But you'd have to be upfront about it. What you could not do is violate the open meetings law. You could not enter - or propose to enter into - agreements with these associations as bargaining agents of the employees. You'd want to acknowledge what you were doing.

I wouldn't advise it but you could even go a step beyond. You might persuade yourself - although you'd be wrong - that Act 10 is unconstitutional and that you are really entitled to collectively bargain with those unions that have been decertified under its terms.

Of course, you'd have to ignore the advice of your own lawyers. This is something that serious people tend not to do, but at least you'd be an honest fool.

But, once again, you could not violate the open meetings law. You should not skulk in the corners to hide what's happening and you should definitely not misrepresent  what you were up to.

In either scenario, you would not want to do these ill advised things while there were serious legislative proposals to restructure the board.

You would not resort to that last refuge of the scoundrel and the clueless and imply that those advancing those proposals are racist.

You would not do any of these things.

But here's the thing.

If you knew better, you would probably not be a member of the board majority. Because, up there, it looks like Manchurian Supervisors - each and every one.

Cross posted at Purple Wisconsin.

World Ends ! Women and minorities hit hardest !

So goes the old joke about a New York Times headline. The target is the tendency of the American left to want to see everything through the lens of race and gender.

Over the years, the left has repeatedly demonstrated that it is beyond satire. So it goes. Three members of Congress introduced a resolution expressing concern that climate change may cause "food insecurity" and "food insecure" women may be forced into "sex work" (we used to call it prostitution) and early marriage.

Were that to happen (I'm not persuaded it's likely), that would indeed be an awful consequence. But one would think that starvation or, if you prefer, "food insecurity" would be a problem for everyone.


Cross posted at Purple Wisconsin.

An Earth Day reflection

So it's Earth Day.

Excuse me, but I'm nonobservant.

Oh, I did once. In fact, I was there at the beginning. I remember celebrating the very first Earth Day as an eighth grader at Greenfield Middle School. I can even remember the old Ecology flags. Indeed, I can remember the term"ecology."

But I lost the faith. Reality can do that to you. The past 43 years of the environmental movement have been marked by too many shoes that did not drop and too many scares that took on the aura of hysteria upon sober reflection. Global freezing became global warming. Global warming became climate change. The Population Bomb turned out to be a dud. The fossil fuels that were supposed to be gone by now are not.

This is not to say that reasonable environmental safeguards aren't necessary. It's just that I tend to believe that the environmental impacts of public policies ought to be based on a rational assessment of costs and benefits without a metaphysical overlay.

If I did, I might wish to offer up to Gaia Don Bodreaux's heartfelt gratitude for the way in which capitalism has made our world cleaner, healthier and safer.

Cross posted at Purple Wisconsin.

Now for something provocative ...

Don Boudreaux, a libertarian economist at George Mason, publishes a great blog called Cafe Hayek. In arguing for ,limited government, he asks liberals who don't like social conservatives and conservatives who don't like state intervention in the economy, why they support big government in other contexts. He writes the following:

Here’s why I ask the above questions: every time I’m in a supermarket check-out lane and catch the headlines of the reading materials on sale there – soap-opera digests, magazines featuring Oprah and other entertainment celebrities, and the like – I literally get a bit of a queazy feeling in the pit of my stomach. It somewhat sickens me that people care who Jennifer Anniston is dating, what Oprah is eating, or why male hunk du jour just ditched female sex-goddess du jour for some other equally vacuous if va-va-va-voom!-inducing babe. I don’t wish to prevent anyone from reading about or caring deeply about these matters about which I truly couldn’t care less. But it scares me that people who read that nonsense – because they care about that nonsense - have a say in how my life is conducted. I resent the fact that such people, if only through the ballot box, influence how government orders me about. 

The more expansive is the scope of government authority, the more my life is subject to commands issued in part under the influence of people who read Us magazine. 

Scary.

Is it?

Cross posted at Purple Wisconsin.

Recusal and Elections

Over at Right Wisconsin, I have a piece up on the issue of recusal in the state Supreme Court race. Challenger Ed Fallone is trying to make an issue of incumbent Pat Roggensack's support of a rule that a legal campaign contribution or independent expenditure by a party to or attorney in the case does not require recusal.

Of course, an individual judge or justice might decide that, in a particular circumstance, a contribution or expenditure might warrant recusal. The rule that Roggensack supported only makes clear that recusal is not automatically required.

(Roggensack, along with a majority of the court, has also taken the position that the recusal decision is to be left to the individual justice - a practice that is also followed by the United States Supreme Court. But that's a different issue.)

Fallone appears to have said different things about recusal at different times, but has apparently settled on the view that there ought to be some sort of rule requiring automatic recusal - at least for contributions of expenditures over a certain level.

But would he follow that rule himself? He has enjoyed support - in a variety of forms - from persons with an interest in overturning Act 10. Would he recuse himself in a case addressing the constitutionality of that law?

I suspect that answer would be "no." I imagine he would say that, under the circumstances. he believes that he could address the issue fairly and impartially. He would say, that in the context of the case and the circumstances surrounding support of his campaign, he believes that recusal is unwarranted.

In other words, he would avail himself of the discretion that the rule supported by Roggensack affords each justice. If I am wrong, then he should be willing to say so. If he believes that contributions are naturally corrupting or automatically give rise to the appearance of bias, then shouldn't recuse himself whether or not there is a rule requiring it or without regard to what other justices might do?
Of course, he won't and, in a sense,  I don't blame him. An automatic recusal rule would make it impossible for people like Ed Fallone to ever challenge an incumbent judge or for voters to hold elected judges accountable. If campaign contributions would render a judge unable to sit on cases that are important to the contributor, then those contributions would not be forthcoming.

While it is easy to regard this as a good thing in the case of a private party interested in the outcome of a private dispute, that is not the typical circumstance in supreme court elections. Contributions tend to come from groups and organizations interested in electing judges with a particular philosophy. To adopt a rule that would require recusal in any case in which these groups are interested would shut down the process. (A rule that was limited to contributions that come from private parties who are litigants in the case would be largely meaningless. None of our recent recusal controversies involve such a dispute and the amount that a party can contribute will be immaterial in a contested statewide race.)
Some people would count that a good thing - being relatively immune from challenge would certainly foster judicial independence. But, in Wisconsin, where judges have always been elected, we have struck a different balance, trusting in the voters to evaluate judicial candidates and incumbents.If that balance is the correct one, then rules which make elections impossible or futile should be regarded as suspect.

If you are interested in this topic, I wrote about it at length here.

Cross posted at Purple Wisconsin

Snitching and Recusal: A very bad analogy.

My fellow Purple Wisconsin blogger Alex Runner is not, as far as I can tell, a lawyer. He seems like a bright guy and I enjoy his writing. But in his post today about Justice Pat Roggensack and her response to the complaint against Justice David Prosser, his lack of a legal education shows. With all due respect, he completely misunderstands the issues.

Alex compares the recusal of certain Justices to the "no snitching" culture which residents of our central cities struggle against. "They're not snitching," he writes. (Italics in the original.) We will, he laments, never know what really happened.

Wrong. Utterly long.

They all "snitched."

They all made statements to law enforcement officials. If Alex is interested, he can read them on line. Properly stated, Alex' problem is not that they refused to "snitch" but that he apparently doesn't believe - or like - what a majority of them had to say. Based on those statements, law enforcement officials declined to file charges. So "we know," based on that decision, that the responsible law enforcement agencies did not think that was possible to prove that anyone assaulted anyone else.

The Judicial Commission did file a disciplinary complaint with the Court. Because those justices who were witnesses to the event have recused themselves, the Court can't act on that complaint. (The Consitution requires four justices to constitute a quorum.) Alex goes on to say that the Court should have referred the matter to the Court of Appeals which he seems to think could have addressed the issue. He chides the recusing justices for not "allowing an outside, objective body to examine what transpired." To support his position, he cites another non-lawyer, Milwaukee Magazine editor Bruce Murphy.

Here are the main problems with Alex's critique.

First, if a majority of the Court recuses itself, then it cannot act to refer the matter to the Court of Appeals - whether one regards such a referral as pro forma or not. While some argue that a referring order is not necessary, the presiding judge of the Court of Appeals does not think so and it is he who has refused to appoint a panel to hear the case.

Second, even if a panel - Alex's "outside, objective body" - was formed, it could not decide the case. Under current law, only the Supreme Court itself can impose judicial discipline. If a quorum cannot sit on the case, then it can't be decided. One can argue that the law should be otherwise, but it's not. I'm sure that Alex, who so admirably promotes lawful behavior in his neighborhood, would agree that we cannot ignore the law now because it has become inconvenient.

Third, comparing the decision to recuse to a refusal to "snitch" trivializes the important - and difficult - ethical issues which each justice had to evaluate in deciding whether or not to recuse. The general rule is that a judge cannot sit on a case in which he or she is a witness. That prohibition is expressed both in statute and in the Code of Judicial Conduct.

One does not have to be a lawyer to understand why this is so. It is impossible to impartially evaluate your own testimony. The witness statements given by the Justices (i.e., what they said when they "snitched" to local law enforcement) reflect differing perceptions of the events. Deciding the case will require determining which of these differing perceptions most accurately captures what happened. It is humanly impossible to put aside what you believe that you saw and impartially evaluate your own version of events against the statements of others.

Nevertheless, some argue that the normal rule requiring recusal should be put aside pursuant to something called the "Doctrine of Necessity." This is the concept - rarely employed - that normal recusal rules can be disregarded if it is "necessary" to do so and there are sufficient assurances that normal precepts of due process and impartiality can be preserved. (My own analysis of the matter can be found here, here and here, including my suggestion as to how the Judicial Commission could more fruitfully address the matter.)

In a written opinion, Justice Roggensack considered the Doctrine of Necessity and explained why she believed that it could not be applied in this case. Perhaps Alex has carefully reviewed her opinion, read the cases that she cites and come to the conclusion that he disagrees with her legal analysis.

Perhaps he has, but a trite and facile comparison of her careful and thorough legal reasoning to "no snitchin'" does not suggest so.

I suppose one can argue that Justice Roggensack and her colleagues should have found a way around the normal rule of recusal and heard the case. Had they done so - given the content of the statements each of them gave to the police - it is almost certain that Justice Prosser would have been exonerated. What they say they saw simply does not warrant discipline.

But it would be hard to make an argument that the way in which they have addressed a difficult and unusual legal problem is much of a reason to unseat an incumbent Justice. "Yes to the Doctrine of Necessity" would not be much of a campaign slogan.

Alex concludes by saying that those who value "value ethics, transparency, rule of law, justice" ought to vote for Ed Fallone implying that Justice Roggensack does not believe in these things.

I read Wisconsin supreme court decisions for a living. I can assure Alex Runner that Pat Roggensack is not the monster he seems to think she is. She is a smart and conscientious jurist - as are her colleagues. We can disagree about the law without attacking the good faith of those we disagree with.

It could be that there are people who believe that there are "process" reasons to unseat Justice Roggensack. My own sense is that it takes an almost wilful misunderstanding of the issues to do so. I think that most folks who are voting for Ed Fallone are doing so because they want to move the Court to the left.

That is certainly their right, but a little candor about it - and a bit less character assassination - would be refreshing.

Cross posted at Purple Wisconsin.

Not so fast on new contracts

The MPS teachers' union wants to negotiate a new contract. They think that contract need not be compliant with Act 10 because of a Dane County circuit court decision holding that the law is unconstitutional. As I have written before, that decision does not create a window of opportunity to violate Act 10. Whether or not the union will ultimately be able to avoid Act 10 will depend on the decision of a higher court - almost certainly the Wisconsin Supreme Court.

If that court concludes that the Dane County circuit court was wrong - a conclusion that is highly likely - then any new contract that violates Act 10 will be unlawful and presumably void.

Moreover, the fact that a single circuit court judge in Madison thinks the Act is unconstitutional will have exactly no impact on the deliberation of higher courts. Lower court decisions are entitled to deference when they involve factual findings or the exercise of discretion. The decision holding Act 10 to be unconstitutional involved neither and is subjected, as lawyers like to say, to de novo

Negotiating a new contract would be even more problematic than that. The attorney for the plaintiffs in the Dane County case seems to think that a municipality that does not agree to negotiate terms that are forbidden by Act 10 would be engaged in an unfair labor practice. In his view, the Wisconsin Employment Relations Commission - to whom such charges are initially directed - would be bound by the circuit court decision because its members were defendants in the case.

But there are at least two problems with his argument. First, it us unclear that WERC, in its capacity as a tribunal, can be bound by a declaratory judgment in adjudicating the rights of a party who is not itself bound by that judgment.  For example, if the Mequon-Thiensville School District is charged with an unfair labor practice for complying with Act 10, it was not a party to the case finding it to be unconstitutional. The question is one that only a civil procedure professor (and I've been one of those) could love.

But there is a more fundamental problem. WERC's decisions are not final. They may be reviewed by a circuit court. That court will not be bound by the Dane County decision which - and this is black letter law - has no precedential value. A reviewing court need not follow it.

The future of Act 10 will be decided by the Wisconsin Supreme Court. If, as I think is almost certain to happen, the law is upheld then entering into agreements that are not permitted by it will create one hot mess. It will invite s a lawsuit in the short run and, in all likelihood, a tangled set of illegal obligations and payments to undo in the longer run.

 

Cross posted at Purple Wisconsin.

A question about voter identification

In light of yesterday's filing of voting fraud charges, I have the following question for opponents of voter ID.
Assume that the current law was amended to provide free copies of birth certificates. Assume that it also authorized a series of "registration weekends" in which DMV offices would be open for those who cannot make it during normal hours. Perhaps we could even set up a couple extra "outreach" stations during these weekends at which a DMV employee would be availbale to issue IDs. Finally, if someone was still unable to get an id card, they could still vote if they signed an affidavit - under penalty of perjury - explaining their inability to vote. Their photo would be taken at the time they signed the affidavit and filing a false affidavit would be a felony.
Would you still oppose voter identification laws?

Cross posted at Purple Wisconsin.

A campaign about nothing

I have a column on the state Supreme Court race up at National Review Online.

One of the interesting things about this race is the "stealth" nature of the challenge and the minimalist nature of the stated case against incumbent Justice Pat Roggensack. It would be one thing for the challenger Ed Fallone (who is certainly a smart and capable law professor) to argue, for example, that he wishes to take the Court in a different substantive direction. That appeal would not persuade me, but it would at least provide voters with a coherent choice.

Instead, the argument seems to be that the Court is dysfunctional (a view that is overstated) and that replacing one of its seven members would somehow change that.

If this seems like weak tea, it is because it is. The case against Roggensack as the source of - or a major contributor to -  the Court's problems seems to be that she 1) doesn't think that the Court's problems are currently impeding its work (there is little or no evidence that they are), 2) shared the impression of at least two other witnesses that the altercation between Justices Bradley and Prosser wasn't quite as Justice Bradley describes it, 3) did not believe that, as a witness to the latter incident, she should sit as a judge in a case arising from it, and 4) believes, with a majority of the Court and the United States Supreme Court, that recusal decisions should be reserved -at least in the great run of cases - to individual justices and not to the Court as a whole.

In connection with the latter point, she believes - again with at least a majority of the United States Supreme Court - that campaign contributions alone do not create a duty to recuse, although she has never said that contributions may not, under the proper circumstances, form a basis for recusal.

One can disagree with these positions or quibble on the details. One could, for example, say that she should have disregarded the normal rule against being a witness and a judge in the same case because it was "necessary" to do so. One could argue that there ought to be a per se rule of recusal in the event of legal campaign  contributions over a certain level - even if that would make it virtually impossible to raise money and do the job that a justice has been elected to do. One might even say that Roggensack should have seen what Bradley - and not Justices Ziegler, Gableman and, to a lesser extent, Chief Justice Abrahamson - saw during those few seconds in June of 2011. (Although how any of us who were not there are supposed to be able to make that judgement is beyond me.)

But, however you put it, these seem to be the chosen campaign themes. And what it boils down to is an appeal - not for peace between the Court's factions - but to enhance the numbers of one at the expense of the other. Candidate Fallone comes not to bring peace, but to bring a sword.

And it is hard to see how that would add up to a case for defeating an incumbent justice. As I wrote on NRO, the only two incumbents who had ever been elected to the Court to subsequently lose are Justice Samuel Crawford in 1855 and Chief Justice George Currie in 1966. Crawford voted to uphold the Fugitive Slave Act and Currie voted to remove the last legal obstacle to the Milwaukee Braves to move to Atlanta.

As they say on Sesame Street, one of these things is not like the other ones.

Cross posted at Purple Wisconsin.

John Doe RIP

My initial reaction to the termination of the Joe Doe investigation can be found over at Right Wisconsin. (Sorry, it's behind a pay wall.) I am not one of those conservatives who claim that the investigation was a witch hunt (I don't pretend to know) but it was troubling both in its conception and execution. It has been my view that we are not served by vaguely worded statutes defining political crimes that can be interpreted to apply to both true abuses of power and garden variety politicking. Expecting those crimes to be enforced by partisan elected officials - even those with the best of intentions - further aggravates the matter. Ordinary politics ought not to be criminalized.

Nor are we served by the kind of partisan irresponsibility that marked much of the public discussion of the Doe. I found it shocking that a member of the bar running for Governor allowed rampant speculation about a legal proceeding to be advanced in his name. I understand that politics ain't bean bag and a political campaign can be a bit like a fist fight. You could hit in the face and you lash back. But all the sepia toned ads about Scott Walker and Dragnet-style Democratic party websites would look silly today if they had not been so irresponsible then.


Cross posted at Purple Wisconsin.

Mad dogs and communications directors

There is no real point in getting upset over Democratic Party official Graeme Zielinski's comparison of Scott Walker to Jeffrey Dahmer. Zielinski steadfastly refuses to behave like someone who ought to be taken seriously and so I don't. (In fairness to him, he did apologize which is, I suppose, a baby step toward reform.)

What I find intriguing is why the Democratic Party continues to put this guy front and center. His latest bout of political Tourette's was hardly the first and may not even have been the worst.

I  would find it easier to believe that Zielinski is a creation of the Koch Brothers - put forward to make the Democrats look bad - than to think that this is the guy who rational people (and, no, I don't think that rationality is limited to one side of the aisle) would want as a spokesperson. If he didn't exist, I would think that the Republicans would have to invent him.

But I may be wrong. While he may have gone too far this time, he has remained a spokesperson after saying some pretty outrageous things. I have to assume that this is at least a calculated - if not necessarily smart - decision.
That may say something about the state of our politics. It may be that hate arouses the base and that someone willing to spew it serves a purpose. My side has some flamers as well although I can't think of one who has remained in an official capacity after repeated bouts of public rabies.
Pity that.

Cross posted at Purple Wisconsin.

Not all cuts are created equal

Apparently a average tax cut for Wisconsin taxpayers of 2% is too small to care about.

But an even smaller reduction in federal spending - or at least its rate of growth - due to sequestration is a disaster.

Who would have known?


Cross posted at Purple Wisconsin

Spinning on tax cuts

The headline in the paper read "Much of Walker’s proposal would go to top 20%, study says."

This, the ensuing article tells us, "complicates" the notion that Walker has proposed a middle class tax cut.

Not really. The same article points out that 80% of the proposed cuts go to persons making $ 162,000 or less.

Sounds like a middle class tax cut to me.

We saw the same claims made with respect to cuts in the federal income tax shepherded through Congress by President Bush in 2003. For years, we were told that the former President had "cut taxes for the rich" when, in fact, he had cut taxes for everyone. (In fact, the Bush tax cuts were weighted slightly toward lower income taxpayers.)

That this story was, at best, incomplete and, at worst, misleading was ignored until those tax cuts were about to expire at the end of last year. It turned out that getting rid of the tax cuts "for the rich" was going to raise the bejesus out of taxes on the middle class.

Although Walker's political opponents will claim that his proposed cuts are slanted toward upper income taxpayers, the opposite is true. The lower your income, the larger your the of your taxes that the proposal will cut.
Of course, in a world where upper income taxpayers pay the most tax, a reduction in tax rates are going to benefit those taxpayers. As Willie Sutton put it, that's where the money is.
Of course, one can always argue that whatever share that they do pay ought to be higher. In theory, the answer to "how much do you need" can be "how much do you have."
But one may argue, instead, that rate reductions are most likely to lead to increased economic activity because they increase the marginal return on working and investing.

In any event, the Governor has proposed a middle class tax cut.

Cross posted at Purple Wisconsin.

Let my people go

When I was a kid, I heard a lot about the grave and intrinsic evil of residency requirements for municipal employees. Dad was a firefighter for the City of Greenfield which at the time (but no longer) required its fire and police employees to live in the city. He's basking in the Florida sunshine these days, but must be pleased (I haven't had a chance to ask) with Governor Walker's proposal to slay his old enemy for all times and all places.
Ironically, my parents wanted to move a few blocks from our house on Forest Home Avenue to Milwaukee. Today, residency requirements are largely, if not exclusively, about the desire of the City of Milwaukee to keep municipal employees on its tax rolls. There seem to be two arguments for residency. The first is that those who "benefit" from working for the city to pay city taxes. The second - and, I think, the real - reason for dictating where municipal employees can make their homes is that, if Milwaukee did not create a captive middle class, it would have no middle class at all.
We can argue about whether and why that's true. But I'd argue that residency requirements actually help to destroy the middle class in a city like Milwaukee.
The problem is that it hastens a city toward reaching a tipping point in which an effective political majority takes more from the government than it contributes toward it. This leads to high taxes and a collective unwillingness to challenge entrenched constituencies that benefit from the status quo. Failing institutions - think MPS - become very difficult to reform and middle class families who don't work for the city throw in the towel and head for the suburbs. This cycle, at its extreme, brings you Detroit.
With the exception of a place like Madison or Washington which thrive on tax dollars earned elsewhere, you can't build a thriving city on government. However large you want government to be, there must be a private economy and middle class community to support it.
To be sure, these aren't the only reasons for suburbanization and it is not to say that there aren't a lot of people in Milwaukee with a different vision for the city. Milwaukee, thank God, is not Detroit or even close to it.
But eliminating residency is, I think, more likely to be part of the solution than part of the problem. A city that cannot hold its middle class captive must make it want to stay. That city will be a much stronger place.

Cross posted at Purple Wisconsin.

An interesting filing in the state Supreme Court

Last week's filing by Justice Bradley was ostensibly an order recusing herself on a disciplinary case involving Justice David Prosser. That she would step aside is extraordinary only in the fact that it took her ten months to get around to it. It was clear from the get go that she should not sit on a matter in which she is the complainant.  

But the nature of filing - what Justice Bradley sought to say - was extraordinary and revealing.  

What she wrote was extraordinary because it had little or nothing to do with whether she ought to recuse herself. It largely consists of a reiteration of her allegations with Justice Prosser joined to an expression of displeasure with the law governing the discipline of Supreme Court justices and annoyance that the statement of a number of her colleagues who witnessed the incident with Justice Prosser don't completely corroborate her own. 

As I have written before, there is no support in the witness statements of any of the other justices - including the Chief Justice - that Justice Prosser "choked" Justice Bradley. Indeed, one can read Justice Bradley's own statement as suggesting that this did not occur. All seem to agree that Justice Bradley charged or rapidly approached Justice Prosser – perhaps with her fist or finger raised. 

Beyond that, the statements tend to depart on very subjective points in which the witness characterizes the volume of some one's voice or the rapidity with which an action was taken. Depending on which version one credits, the incident reflects poorly on Justice Bradley or both justices. If you are inclined to the latter view, it is possible to conclude that Justice Prosser was more at fault than Justice Bradley, but that is far from clear. One might well reach the opposite conclusion. It is possible that one might conclude that Prosser (or Bradley) ought to be disciplined, but that result is not foreordained. 

It is understandable that Justice Bradley is committed to her version of events and upset that others don't see things the same way. What is important for purposes of recusal is the resolving the conflicts will reflect on her testimony (which is not undisputed) and even on whether she ought to be subject to discipline. Perhaps all of those questions should be resolved in her favor. But she can't be the one to decide that.  

Normally, a judge in her position would simply step aside without comment on the merits. He or she would not use a recusal order as an occasion to editorialize. Justice Bradley is quoted as saying that her filing is a response to Justice Roggensack’s statement that the court is “doing fine.” But judges normally don’t use court filings to weigh in on their colleague’s campaigns. 

The filing is, nevertheless, revealing. The filing demonstrates the wisdom of the general rule that someone ought not to be a judge in his or her own case. 

Here's an example. Justice Bradley is upset that her colleagues' witness statements will not concede what Justice Prosser has admitted. "They deny," she writes, "what has already been admitted." But a careful - no, even a cursory - reading of the witness statements of Justices Roggensack, Ziegler, and Gableman all reveal consistency with Prosser's statement. Each of them says that Justice Bradley charged Justice Prosser with her fist or finger raised. He put up his hands in response and his hands came into contact with her neck but did not close, i.e., he did not choke her. (In any event, it was not for these witnesses to base their own version of events upon the statement of either of the participants. They were asked to relate what they saw.)

Depending on the details, one might take these statements to warrant no discipline, discipline against either Justice Prosser or Bradley alone, or discipline against both Justices. But they are not inconsistent with Justice Prosser's statement - at least not one the critical point identified by Justice Bradley. 

That she is unhappy with them is all too human. Again, she may be right and they may be wrong. But the filing also demonstrates why she was correct to recuse herself.

 

Cross posted at Purple Wisconsin.

Imagine no religion?

Every once in awhile, you come across someone who has summarized a point exceedingly well. I had that experience recently in reading an interview of George Weigel by Kathryn Jean Lopez regarding Weigel’s forthcoming collection of essays, Practicing Catholic.

While conservatives are often said to be “against” the environment, this has often struck me as claim that is bizarre on its face. No one chooses to poison his own living space. To the contrary, our environmental disputes tend to be about the trade-offs between our desire to use the environment to further human flourishing and the need to protect it from unwise uses. To be sure, one can be wrong about the harm that some course of conduct will cause and human beings will always be tempted to cut corners in a way that they should not, but environmental issues have always struck me as pragmatic and practical questions that are ill served by moral posturing and claims to be “for” or “against” the “environment” or some anthropomorphized geographical feature. It is a question that ought to acknowledge that advanced industrial societies – those who can develop and implement environmental protections – tend to be the cleanest.

This is not an area that is served by a desire to go back to the good old – and allegedly – pristine days. It is not clear to me that the cause of environmental integrity will ever be served by an extreme version of the Precautionary Principle which exaggerates risks and minimizes benefit. Don’t believe me? Think about nuclear power, fossil fuels and the risk of climate change.

Here’s Weigel:

LOPEZ: What do you have against Earth Day?

WEIGEL: I’m generally against pantheism, and what the first “Earth Day” set in motion was the transformation of the environmental movement from a conservation movement (which any reasonable person could and should support) to what is now an increasingly irrational cult, impervious to either the reality of trade-offs in public policy or (if I may quote President Obama and Al Gore) “the science.”

Outstanding.

The President on Guns: Ready, shoot, aim.

One of the dispiriting things about the "conversation" that we are supposed to be having about guns in the wake of the Newtown shooting is how much of it posturing as opposed to dialogue.

The President's posturing at yesterday's news conference is no exception. If the past month is any indication, we are about to see a newer and nastier Barack Obama. Notwithstanding his intelligence, he has always been willing to play the demagogue - given to the non sequitur, the ipse dixit and the ad hominem. All signs are that he is doubling down.

For example, the President believes that it is somehow critical that we ban "assault weapons" as if this term had a fixed meaning. He suggests that the only reason that anyone might oppose or question the ban is, quite frankly, a monster who would sell the safety of children for cash from the NRA. (“Ask them what’s more important — doing whatever it takes to get a A grade from the gun lobby that funds their campaigns, or giving parents some peace of mind when they drop their child off for first grade.”) Surrounding himself with children pressed into duty as props, he says that “if we can only save one life” through some proposed action, then it ought to be done. No one really believes this. No one should.

 

 He spends almost no time explaining what he means by an "assault weapons." He seems relatively uninterested in whether a ban on such weapons will make a difference. Hitting the target seems less important than taking a shot. Doing something trumps doing something that matters.

We had a national ban on statutorily defined "assault weapons" from 1994 to 2004. It seems to have had no discernible income on gun crime. The authors of a University of Pennsylvania study commissioned by the Department of Justice concluded that "we cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

To be sure, there is always room for argument. Mass shootings were somewhat lower during most years of ban's duration. But mass shootings are such a rare event that it is not possible to attribute this to the ban as opposed to random fluctuation . Some, including authors of the Penn study, argue that the ban had too many loopholes and might have had more of an impact over time.

Perhaps. It is a standard refrain on the left that whatever orthodox nostrum that has failed was a "good idea" that did not go "far enough."

But, then again, it shouldn't surprise us that a ban on "assault weapons" may not have much of an impact. Automatic weapons are already illegal in this country. What we now call "assault weapons" amount to semi-automatic weapons with some feature that is said to be "unnecessary" for legitimate use of the weapon.

Only some of these features are relevant to controlling the incidence or severity of an incidence like Newtown. It is said, for example, that a pistol grip allows a shooter to stay focused on his targets or that an extended clip (generally defined as one containing more than ten rounds) allows more shots to be fired in the same period of time. Perhaps true, but helpful- at best - only at the margin.

But why not do something at the margin? Wouldn't a law be justified if it only saved one life?

It might, but in determining whether reform will actually save one life, we have to consider whether any particular restriction will at the same time cost lives. The things that make these weapons less effective in committing crimes also make them less effective in self defense. It does no good to say that these weapons will not frequently be used in self defense. They won't frequently be used to commit crimes either and, when they are, banning a pistol grip or an extended clip won't make them much less deadly. We know that because of our experience with the prior ban on assault weapons.

So, in weighing the benefit of an assault weapon against its costs, we may be comparing very small numbers.

Supporters of a more comprehensive ban point to the experience in Australia where a ban on most semi-automatic weapons, adopted after a mass shooting there and combined with a massive gun buyback seems to have some impact in reducing gun violence, although the extent of that reduction is a matter of debate.

But Australia is not the U.S. There are approximately one hundred times as many guns in circulation here than there were there prior to the ban. Beyond that, the Australian reform – a ban on all semi-automatic weapons and prohibition of purchasing guns solely for personal protection – are political and constitutional nonstarters in the United States.

This is not to say that some further restrictions on guns that might be characterized as "assault weapons" aren't worth considering. It may, for example, be worth placing some limit on the number of rounds in a clip although my guess is that the value, if any, will be more in confrontations between police and criminals than in mass shootings. Nevertheless, there is presumably a limit on the size of a clip – although I’m not prepared to say that it is ten rounds – that won’t make a weapon much less effective in self defense.

Last month, a trio of Assembly Democrats called for a ban on hollow point bullets. That has nothing to do with Newtown, but it might make some sense. On the other hand, I understand that this type of ammunition is considered by some to be more humane and effective in use for hunting. Perhaps a blanket prohibition would not be in order.

The same groups called for psychological screening for those who sign up for concealed carry permits. This too has nothing to do with mass shootings and, in fact, seems more like a thinly concealed attack on the concealed carry law. It is an attempt to make getting a permit more expensive. The idea that we could effectively eliminate problem permit holders by the type of quick and dirty evaluation that would be done in the course of a training class seems improbable.

I am of the view that more training - including hands on instruction with the applicants' weapon - should be required for concealed carry permits. The value, of course, would not be in reducing crime but in preventing accidental shootings. But fruitless psychological evaluations are just an attempt to undermine a law that these legislators don't like.

There are other things that might make sense. I don't see why background checks aren't required at gun shows or for private sales. I understand that criminals will easily evade such a requirement but there seems to be little reason for the law to facilitate sales of firearms to those that would otherwise be unable to purchase them.

But even here, we ought to be realistic about what can and cannot be accomplished. We can't review the medical history of everyone who wants to buy a gun and, even if we could, the likelihood that we could identify the one in a million who might commit an unspeakable act like the one at Newtown seems fantastical.

In response to a post a few weeks back suggesting that "bans" and "restrictions" may not accomplish much, one commenter posted a remark to the effect of "twenty kids dead - watcha gonna do."

 

I'm sure that he thought this was very clever.

But wishing or wanting something to be true does not make it so. I suspect that there are a few things that can be done regarding the manufacture and sale of guns. But to pretend that this would solve - or even make much headway - is to adopt a false sense of security. We have had guns in America for most of our history. We have had semi-automatic weapons for decades.

We have tightened - not loosened - the regulation of guns over the past 50 years. Lee Harvey Oswald bought the rifle that he used to kill the President of the United States by mail using a false name without a background check.

I agree that it is too facile to say that "guns don't kill people, people kill people." But when it comes to mass shootings, it seems that we have changed more than the hardware has.

The complexity of this issue suggests that we have a meaningful discussion of these issues that does not presume bad faith on the part of those with whom we disagree. Pity that the President of the United States does not seem to want an adult conversation.

 

Cross posted at Purple Wisconsin.

Who cares about County Board salaries?

While I run a business that I intentionally decided to locate in the City of Milwaukee, I am not a resident of Milwaukee County. So  whether or not Milwaukee County Board Supervisors are paid a full time salary for a part time job has no direct impact on me. What interests me is the way in which the  controversy has become a liberal/conservative issue. For the most part, it is folks on the left who want Board members to be paid a fairly decent salary for make work.
Let's stop for a moment. I will not take seriously anyone who tries to tell me that the job of a County Board Supervisor is full time. Too many people - of all political persuasions - have done an apparently adequate job of serving on the board while remaining gainfully employed in some other way. One can certainly use a position on the board to enable one to engage in free floating political activism claimed to be for the "benefit" of county residents. But that doesn't mean that it requires forty hours each week to do those things that the County Board must do.
Of course, some people may believe that "activist" supervisors are a good thing. There lies your conservative/liberal breakdown. If you believe that the county government should do more and that people in Milwaukee County need more of what politics can bring, then creating more politicians - people who do politics for a living - might be a good thing. A part-time board may be more likely to stick to knitting and work for a County government that does less. The kind of board members that a part-time salary attracts - because they must earn a living doing something else - may be less likely to see the world as something to be ordered by politics.

Cross posted at Purple Wisconsin.

Milwaukee's children deserve to learn to read.

I was interested in the post by my fellow Purple Wisconsin blogger Barbara Miner regarding a PBS segment on Rocketship schools. I agree with Barbara that you ought to watch the segment. (This link may work.)

But there are a few things about the story on Rocketship that I might add.

I might point out, for example, that, notwithstanding the concerns expressed by Rocketship itself as to whether its learning labs are as effective as they ought to be, these schools have a fairly impressive record of improving achievement among low income students - as the PBS segment itself reports. By at least some measures, they are the leading schools for low income kids in California. Here's one description:

Rocketship Elementary charter school students devote 100 minutes per day to the Learning Lab. This period combines computer-based, individualized lessons on basic math and literacy skills, independent reading and enrichment programs to focus on areas where students struggle the most. Students are assessed every two months to update their individual learning plan. The results are shocking, given the population they serve. Rocketship Mateo Sheedy serves low-income students in San Jose, nearly 73 percent of who are English Language Learners and 78 percent of who qualify for the Free and Reduced Lunch program. Their 2009 API was 926 out of 1,000, making Rocketship the highest performing low-income elementary school in San Jose and Santa Clara county, and third in California. Rocketship’s operating costs are met entirely by traditional government funding yet the hybrid charter school manages to pay its teachers 20% more than teachers in surrounding districts. Thanks to the daily Learning Lab period, Rocketship saves one teacher and one classroom per grade level, amounting to savings of around $500,000 per school per year. They currently have three schools in San Jose, with plans to grow to 30 schools over the next five years.

As is always the case in the Tower of Babel that house the social sciences, I imagine that people will debate these numbers or try to explain them away.  I don't know that the Rocketship model is a silver bullet. Maybe it's not as strong as it seems to be. But I can understand why it is attracting support.

I appreciate that the standard line in the education establishment is that there are no fundamental problems that money won't cure. This strikes me as highly implausible. We have not starved our elementary and secondary schools. We spend more on them than any other developed nation. We have dramatically increased that spending over the past 40-50 years.

We have not enjoyed improved performance. This suggests that a new approach is required. It tells me that "diverting" resources from traditional public schools to new ideas may not be such a bad idea.

The Rocketship model suggests why. One of the things is does is emphasize teacher quality by treating teachers like professionals. Teachers are paid more and, because they are non-unionized, subject to the demands to which other professionals are subject. This is in sharp distinction to the traditional unionized school which, in adopting an industrial union model developed for assembly line workers in the early to mid twentieth century, emphasizes labor relations characterized by uniformity, standardization and job protection.

I might also add that the individual and self directed instruction that takes place in the learning labs (which, incidentally are not "Dilbert-like" cubicles; they look like stations in a college language lab) did not strike me as all that new. It reminded me of the individualized reading program called SRA  that I followed at St. Sebastian School in the '60s.

Finally, the criticism that Rocketship charter schools lack art and music instruction strikes me as awfully precious. The public education establishment, as a general matter, has fought to ensure that choice and charter schools receive less funding than traditional public schools. Attacking them for what they may be unable to offer seems bad form.

Beyond that, while I agree that Milwaukee's children deserve an opportunity (whether in school or not) for art and music, I think that they have a stronger claim to be taught how to read.

Maybe we should start with that.

Cross posted at Purple Wisconsin.