Getting beyond insults in the school choice debate

My latest Culture Con column in WI Interest can be found here. In it, I suggest that attitudes toward school choice tend to be rooted in pre-existing attitudes about the value of individual choice, diverse approaches and the competence of public entities to discern the best possible way to deliver a service.

Madison school board member Edwin Hughes doesn't like it. He writes a post claiming to get beyond "Esenberg and insults" by dismissing my column as "smug," "simplistic" and deserving of "mockery."

I'd hate to see how Mr. Hughes conducts himself when he isn't so committed to "civility" and "engagement"and "getting beyond insults."

He shouldn't be so sure of himself. The point of my column was this: Voucher opponents accept, in an almost theological way, that an entity called "choice" schools do "no better" than public schools and drain money" from public schools. There are numbers that support this view, but there is also substantial evidence - contained in the most comprehensive evaluation of the program - that choice schools do achieve, by some measures, superior results.

More fundamentally,  it makes little sense to view "choice schools" as a monolithic entity. They are not a "system" and consist of a variety of diverse schools adopting very different approaches. Some of very good. Others are not.

Once you recognize that the facts are confounded and the results differ from school to school, the question becomes whether low income families should be empowered to choose what might, for them, be a better option.

Mr. Hughes thinks not and apparently rejects my suggestion that his view could possibly be based on any of his foundational beliefs about the way in which the world works and his assessment of the relative merits of centralized and collective - versus diverse and individual - decision-making. His argument consists of two moves.

The first is to provide his readers with a - I'm sorry - rather sophomoric caricature of my point. He thinks I'm calling choice opponents grey apparatchiks reminiscent of Apple's old "drones" commercial from 1984 while choice proponents are free thinking rebels ready to rock and roll. This, he says, "invites mockery" and it might if that's what I said. But it's not. It is reframing my argument in this cartoonish way that is itself "simplistic."

Let me try to put it in a way that Mr. Hughes might like more. Choice opponents tend to place greater value on equality of result and less on individual liberty. They are more optimistic about  the ability of whomever we choose to recognize as elites to solve problems and less optimistic about the likelihood that solutions will emerge from something approximating a market, i.e., a diversity of approaches in which some succeed and others fail. They are more favorably disposed to a common secularity than what will necessarily be a more diverse (and potentially divisive) collection of faith based approaches. They are more optimistic about democratic decision-making and less concerned about the ways in which public choice theory tells us that such processes (particularly in an area like education) can be captured by special interests.

His second move is to offer a defense of the very philosophical predispositions that I suggest characterize opposition to school choice.

He begins, for example, by saying that choice opponents are concerned with quality of education and the way in which it is delivered.  Well, yes, so do we all. But "caring" cannot in and of itself tell us whether the best way to "care" is to confer, as far as low income families are concerned, an effective monopoly on a single entity.  To believe that a monopoly can offer the best option for everyone is to place a great deal of faith in the capacity of the monopolist to choose wisely.

In other words, as I said, one must be more favorably disposed to centralized decision-making.

He then makes the "diversity" gambit. It is, he says, important for students to be compelled to attend school with a diverse collection of classmates by which I take it he means students who look different but will be socialized to - at least in some ways that ought not be questioned - think alike.

Perhaps. But, at least in Milwaukee, both choice schools and public schools are predominantly minority and low income. They may differ in that a large number of choice schools incorporate (within certain limitations) a faith based component to their instruction. In other words, the distinctive is not that the choice schools do not "look like" their public school counterparts as much as it is that they think differently.

Again, whether you think this is a good or bad thing will depend on whether you value, for low income persons, the ability to choose a faith based alternative distinct from the secular monoculture of public education.

Finally, Mr. Hughes challenges the notion that parents can decide what is best for their children. The view that they know best is, he says, "magical thinking." Families, in the considered view of Edwin Hughes, don't value diversity (or at least the same type of diversity) as much as Edwin Hughes, They ought not be empowered to make these "poor" choices.

Whether or not he is right, we are left with, again, with the very philosophical divide that I identified. Mr. Hughes thinks that centralized and collective decision-making will more properly value diversity (as he defines it) and make better educational choices for children than their parents will.

Of course to describe a philosophical divide does not tell us who has the better of the argument. Mr. Hughes defends his position by relying on a 2007 "study" by the Wisconsin Policy Research Institute which, strictly speaking, was not a study at all and had more to do with the impact of choice on public schools than its value to the families who participate in the program.

The 2007 WPRI publication collected no data on what was actually happening in Milwaukee. It simply took a national data base on the educational involvement of families and extrapolated it to Milwaukee based on the socioeconomic characteristics of Milwaukee families. It was, strictly speaking, nothing more than a calculation. If low income and minority families in Milwaukee behave like low income and minority families nationally, the calculation showed, then, based on certain assumptions, very few would engage in informed decision-making regarding their children's education.

It was an interesting and thought provoking exercise but one with an obvious limitation. It is not at all clear that national findings would extend to a city with a relatively longstanding and actively promoted choice program. It is possible that the existence of a greater array of educational choices would change the incentives and capacity of parents to engage in the informed and engaged decision-making that would otherwise not happen.

Beyond that, the fact that only a subset of families will exercise a choice tells us precisely nothing about whether they ought to have the opportunity to make one - unless you entertain a presumption against individual choice and a diversity of alternatives  in education.

Mr. Hughes argues that education is an "experience good" which is a fancy way of saying that it is something that consumers have a difficult time evaluating before deciding whether to buy it. But, again, the extent to which you think something is that type of good (many things are difficult to be sure about before you try them) and whether, having decided it is, you think that people should have someone else choose for them reflects very philosophical divide I'm concerned with.

My suggestion to Mr. Hughes is that he read - if he hasn't - Jonathan Haidt's provocative study of political reasoning, The Righteous Mind. While I don't agree entirely with Haidt (I think he mischaracterizes conservatives and diminishes the way in which foundational judgments reflect assessments of empirical facts), he does marshall some impressive evidence that the way we think about discrete political questions reflects a priori judgments about the relative weight to be according competing values and (at least, I think) assessments about how the world usually works.

Thus, we often form a position first and then look for evidence to support it. This does not mean that we can't be persuaded to change our minds. It does not even mean that we are hopelessly biased and unthoughtful. What it does mean is that understanding our opposing numbers may mean appreciating that they weigh values a bit differently than we do (even if we share the same ones) and have differing views about what works best.

It is then that we can get beyond insults.

Update: When initially posted, I identified Mr. Hughes as "Edward," I am informed that his name is Edwin. My apologies to Mr.  Hughes and thanks to a reader for the correction.

Cross posted at Purple Wisconsin

Fast food protests and the real world

Yesterday, we saw scattered protests at some fast food restaurants. (Well, you had to get pretty lucky to actually see one, but they were a few. It's in the paper.)

The point of the exercise was to argue that McDonald's (and other fast food joints) ought to raise the pay of all their restaurant employees to 15/hr because they can "afford it."

Is that true?

Recently, the Huffington Post breathlessly published a "study" by a University of Kansas researcher that purported to show that McDonald's could double the salaries of its employees and only raise its menu prices by 17%.

It took about no time at all for the "study" to unravel. It was done by a UK undergrad who made some rather large mistakes. He calculated that McDonald's expense for salary and benefits (which is largely, although not entirely, made up of pay and benefits for line workers in company stores) is only 17% of its total revenues. If you simply raised prices by 17%, you would bring in enough to double salaries. This, he said, would raise the price of a Big Mac by 68 cents.

There is so much wrong with this, it is hard to know where to begin.

First, the student failed to recognize that about one third of McDonald's operating revenue includes franchise fees. But the salaries and benefits of employees at franchise restaurants - which constitute the majority of McDonald restaurants - are an expense of the franchisee and not McDonalds and, therefore, not included in McDonald's financials.

When you do what he should of done and compare McDonald's salaries to the revenue from company stores, it turns out that McDonalds' salaries and benefits constitute 26% of revenue. So prices would have to go up by that amount to "double" salaries.

But the notion that you could raise prices by 26% - or even 17% - and sell the same amount of food is preposterous. It assumes that the demand for McDonald's food is completely "inelastic," i.e., unrelated to price. The fact is that, if a Big Mac goes up 26%, people are going to buy fewer Big Macs. Prices will have to go up even further to cover the additional labor costs and restaurants will do one of two things - they will either close or find ways to operate with fewer employees. If everyone makes $ 15/hr, labor replacing technologies become more attractive.

But, the rejoinder come, can't McDonald's simply keep the prices where they are (they'll have to if no other fast food chains raise their salaries) and make less money. There would still be enough.

First, it's not clear that there would be. Before the allocation of SGA expenses, McDonalds makes a bit over 3.5 billion in operating revenue (which, incidentally, is not the same as net profit) on its $ 18.6 billion in sales at company stores. Its cost for labor and benefits at those stores is about $ 4.7 billion. While I suspect that you would not have to double that number to reach an average wage of $15/hr, it is safe to that you would erode much - and maybe all -  of the company's operating profit. (Again, McDonalds would probably find ways to cut employment and save some of that revenue.)

So it turns out that better wages for fast food workers are not simply a matter of demanding them.

Cross posted at Purple Wisconsin.

A note about federalism

This past Saturday morning, I had the privilege of speaking at Community Brainstorming, a weekly forum held at St. Matthew's AME Church. The topic was the Supreme Court's recent decision in Shelby County. Although Shelby County is often simply described as "gutting" the Voting Rights Act, it actually struck down the 48 year old formula by which certain states are required to seek the permission of the federal Department of Justice before they can implement any change in their election laws. Denying or abridging the right to vote on the basis of race continues to be prohibited by the Voting Rights Act and the United States Constitution.

I don't want to repeat the arguments for and against the result in Shelby County. Wisconsin was never one of these pre-clearance jurisdictions. I want to make a larger point about federalism.

In the course of our debate, Chris Ahmuty, Executive Director of the ACLU, asked why we should be worried about the rights of the states as opposed to the rights of the people. I think that's the wrong question; what our President would call a "false choice."

Although we so often lose track of the point, our system of federalism was conceived as check on governmental abuses. In other words, it is one of the ways in which the liberties of the people are protected. This happens in two ways. First, it is far easier for any one of us to exert influence on the state and local level than to have an impact on what happens in Washington DC. This is particularly true today, when much of what the federal government does is the product of administrative regulations and fiat. Under the Voting Rights Act regime of preclearance, it is not the President or Congress, but lawyers in the Department of Justice who hold up laws enacted by the legislatures and executives of covered states.

But even more importantly, a system of federalism disciplines government. The ability of, say, Illinois to overreach is limited by the ability of its citizens to move to Wisconsin. The option to vote with one's feet can protect liberty just as much as the ability to vote for politicians.

Of course, there is a proper role for the national government. That is why we have federalism and not confederation. But the presumption that Washington knows better - or even that Washington will always be friendlier to racial minorities - is not self evidently true.

I understand that, if you believe that the government ought to heavily tax and regulate a minority of the population - say those that are wealthier or own businesses - then this view will be less appealing to you. You will worry that the people who you want to take from money from or businesses that you want to control will leave. This may be why I suspect my view of federalism was not shared by many of the Brainstorming attendees.

But it seems to me that, if you believe that your policies are right, if you think that "the blue model" leads to Seattle and not Detroit (and "red model" produces, say, rural Mississippi and not Dallas), then you ought to have the courage of your convictions.

Cross posted at Purple Wisconsin.

A more substantial disregard of the law

I was happy to see that the editorial board of the Milwaukee Journal Sentinel has decided that respect for the rule of law has become an important issue. What I found astonishing is that, while the board mentioned the desire of a few rogue Republicans who wanted states to "nullify" the badly misnamed "Affordable Care Act"  by arresting federal officials who sought to enforce it  (admittedly a goofball idea), it has ignored the actual nullification undertaken by the President.

There is no legal justification - none - for delaying the implementation of the law's employer mandate. (Yes, I know a few people have tried a justification but have only managed to resemble Jon Lovitz' Tommy Flanagan.) The law clearly requires that the employer mandate be enforced beginning in 2014 and the President's failure to do so is a blatant disregard of his constitutional duty to faithfully execute the laws. That editorial writers and others ostensibly dedicated to the "rule of law" are not up in arms about this is amazing.

While it doesn't matter why the administration is doing this, I think that there are two reasons. First, it has finally figured out that implementation of the plan is going to be a train wreck. They don't that to occur during an election year.

Second, we have always been told that ObamaCare was a complex mechanism that required all of its various elements to work. For example, in defending the individual mandate, the administration argued that it was necessary because of the requirements for community rating (sick people cannot be charged more) and guaranteed issue (pre-existing conditions must be covered.) Once you enact the latter two, people must be compelled to buy coverage or the cost of insurance will go through the roof. Once you set up exchanges and subsidies, you need the employer mandate to prevent - or at least limit - the dumping of employer coverage.

So ObamaCare cannot work without the employer mandate or, for that matter, verification of a person's eligibility for coverage (which has also been scuttled by Obaman decree). It doesn't take a cynic to think that the President is delaying the necessary pain to get the public wedded to the benefits that cannot exist for long without them. The hope is that the political landscape will change so that a law which Republicans have always said cannot work can be modified in a way that the Democrats prefer.

However you feel about health care policy, this should not be made to happen by ignoring mandated provisions of the law.

The Journal Sentinel editorial raises the City of Milwaukee's defiance of state repeal of residency requirements and the Mukwonago School Board's commitment to hang on to its "Indians" nickname as examples of "ignoring the law." Perhaps, but neither holds a candle to what Obama has done.

There are occasions when the only way - or at least the only practical way - to challenge an unconstitutional law is to violate it and then raise its unconstitutionality in ensuing enforcement proceedings. To be sure, there are other ways to do it but there can be difficulties that can make those routes impractical or even unavailable. I'm not saying this is so for the City of Milwaukee or Mukwonago schools, but the point is that both bodies will quickly have to defend their position in court.

Because of restrictive rules regarding standing (i.e.., the ability of a person to even bring a suit) in federal court, that may not happen with the President's defiance of the law. All the more reason that those who value the rule of law should be speaking loudly.

Yes, the handful of legislators who seemed to advocate arresting federal officials were off the rails. Perhaps the City of Milwaukee and Mukwonago schools should take a different route. But to get the vapors over these examples in the face of an extraordinary piece of national lawlessness is like the cop who writes a parking ticket in front of a bank that is being robbed.

Cross posted at Purple Wisconsin.

Bobo's false narrative on Zimmerman

One of the least thoughtful columns written in the wake of the Zimmerman verdict was written by Larry Bobo, a professor of African-American Studies at Harvard. (By way of full disclosure, I took Bobo's deposition many years ago but I remember little about it and I'm sure he remembers even less. He was a minor witness in a desegregation case.) He uses the verdict to argue that America is irretrievably racist because ... well ... "because" is where the trouble starts.

He writes:

The most elemental facts of this case will never change. A teenager went out to buy Skittles and iced tea. At some point, he was confronted by a man with a gun who killed him. There is no universe I understand where this can be declared a noncriminal act. Not in a sane, just and racism-free universe.

Professor Bobo's understanding needs formation. A person might be found "not guilty" (not the same as a determination that his actions were "noncriminal") in a universe where we don't decide criminal cases based on a selective recital of the "most elemental facts." That universe - our universe - would insist on considering all of the relevant facts. In a sane, just and racism-free universe, we would understand that such a scenario could comprise a "noncriminal act" if the teenager attacked the man who reasonably used the gun in self defense. In our sane, just and racism-free universe, we would assess the evidence without trying to fit it into the prefabricated narrative of left wing academic.

In that universe, someone who is smart enough to have earned a Ph.D. could - even without a law degree - understand that we require guilt be proven beyond a reasonable doubt. If a jury does not have sufficient evidence to conclude who was the aggressor - if there is no way to choose between alternative hypotheses (i.e., did Zimmerman attack Martin or did Martin attack Zimmerman), then it must acquit.

I don't know exactly what happened that horrible evening. I am also pretty certain that Larry Bobo doesn't either. I do know that the jury's conclusion that the state did not prove it's case beyond a reasonable doubt can be explained on grounds other than racism.

Bobo's recitation of the "most elemental facts," by the way, is a typical trick of the post-modern academic. One raises a fact pattern or case (law professors are among the worst offenders) to a level of abstraction that allows one to assert connections and conclusions that would be unwarranted on a more "granular" (i.e., complete) view of the matter.

Cross posted at Purple Wisconsin

George Zimmerman and the mob

This morning I appeared on Mid-Day with Charlie Sykes (except it was Brian Fraley) to discuss the Zimmerman verdict. From a legal perspective, the verdict was almost a forgone conclusion and manslaughter was not an appropriate alternative. If the United States Department of Justice abjures political considerations and follows it's guidelines - indeed if it wants to avoid the disaster that befell Florida's politicized prosecution - it will stand down. A civil trial, on the other hand, while unlikely to succeed, is a very different proposition. The burden of proof is lower and Zimmerman will either have to testify or, if he can still invoke his privilege against self-incrimination(due to potential federal charges) risk have his silence used against him.

Folks who are upset about the George Zimmerman verdict have been motivated by a concern about racial profiling. They are not wrong to be concerned about the issue. I don't believe that racial profiling is as frequent as it is claimed to be (there are stronger cultural sanctions against it is than is commonly supposed) and much of what is claimed to be racially motivated suspicion is not. Of course, that doesn't mean it doesn't happen or is not a problem when it does.

I don't know whether George Zimmerman followed Trayvon Martin because he was black. The evidence is not strong. The "gated community" in which he lived is a multi-ethnic, working class development with a not inconsiderable crime problem. Zimmerman appears to have been a zealous "neighborhood watch" guy who frequently called the police on "suspicious characters." He seems not to have been racially motivated as much as prompted by a (perhaps) overzealous desire to protect his community and outsized idea about himself as an instrument of law and order.

And, strictly speaking, whether or not he was racially motivated has little - not nothing, but little - to do with his guilt or innocence on the charges he faced. Even if he had singled out Martin because of his race, he was still entitled to defend himself. Why he was where he was that night matters far less than what happened while he was there.

When you examine what we know about that, it was always clear that a criminal conviction was never going to happen. It is certainly possible (if, as the evidence came in, highly unlikely) that George Zimmerman committed a crime. It is not possible to conclude that he did so beyond a reasonable doubt.

This should remind us - again - of the dangers in using a criminal trial as a form of political and social expression. Crowds chanting "no justice, no peace" are not what "democracy looks like." They are - however well intentioned -  mobs bent on something that looks uncomfortably like vigilante justice. They are what demagoguery looks like.

This is not to say that George Zimmerman is a hero or even an admirable character. In this instance, it would have been better had he stayed in his car and not tried to play Cop. His conduct may reveal him as a fool. But it doesn't make him a murderer.

Cross posted at Purple Wisconsin

What Walker should veto

Tomorrow, Governor Walker will sign the budget. He will veto some things. Here are a few I hope that he strikes.

A few weeks ago, I wrote about the "eviction" of the Wisconsin Center for Investigative Journalism from the UW campus. I suggested that this may have been the kind of thing that happens when you are as uninterested in intellectual diversity as the UW has been. I don't mind that the UW has institutions with a perspective. I do mind that they only have one kind, even if the WCIJ may not be as far to the left as many UW organizations.

Of course, as I noted, it is possible that this was just retaliation by politicians who didn't like a WCIH story and that's completely unworthy of the Governor and his administration.

But from the outset, I criticized a portion of the proposal that says that no UW employee may work with the WCIJ. This, I thought, was a violation of academic freedom.

The good people at the Foundation for Individual Rights in Education agree and have written to the Governor.

Telling academics what they can work on needs to go. What conservatives need to do is attack the censorship of the academy and not try to match it.

The budget has a provision that disqualifies from the state bidding process any company that hasn’t already performed work on a state or local project. Not a good idea. 

I don't have a strong opinion about private bondsmen. (I am tempted to say that I have no dog in that fight.) There is evidence that this type of system - which exists in the overwhelming majority of states - can lead to fewer defendants failing to make court appearances at less cost to the state (albeit at higher costs imposed on defendants who are not found guilty.) My problem is that the advantages don't seem great while the opposition within the system is strong. That adds up to "not worth it" to me.

Finally, while I have nothing against the Kringle, the state pastry ought to be the cream puff or , in light of our strong German heritage, the Pfeffernusse. But Racine is a swing county and I'm a realist. It won't happen.

Cross posted at Purple Wisconsin

Data on choice schools will be available

I appreciate the difficulty that non-lawyers have in interpreting legal language and the challenges that anyone has in reporting on Wisconsin's chaotic budget process - a chaos that seems to reign no matter who is in power.
It is being reported that the current budget will have a provision that, as the headline puts it, "would limit the release of data on individual voucher schools.' That it highly misleading. The proposal would not limit the release of data on individual schools, but would only affect the timing of its release. It requires that it all data be released at the same time.
The Journal Sentinel's report on the proposal does not link to it or quote it.  Here is the proposed language:

118.60 (11) (d) 1. Except as provided in subd. 2., when the department publicly
releases data related to, but not limited to, enrollment of, standardized test results
for, applications submitted by, waiting lists for, and other information related to
pupils participating in or seeking to participate in the program under this section,
release the data all at the same time, uniformly, and completely.

2. The department may selectively release portions of the information specified
in subd. 1. only to the following:

a. A school district or individual school.

b. An entity requesting the information for a specific participating private
school or the school district within which a pupil participating in the program under
this section resides, provided that the entity is authorized to obtain official data
releases for that school or school district.

Again, the "limitation" is only on the selective release of data. The idea is that all of the data relating to all of the individual schools should be released at the same time. But the date related to each individual choice school will be made publicly available.

Superintendent of Public Instruction Tony Evers complains that this would not be true of publice schools. Perhaps not, but choice schools aren't public schools. They are private schools at which parents can choose to use vouchers. This does not make them public anymore than the corner grocery becomes a public agency because it accepts EBT cards.

The important thing to keep in mind is that test results and other data related to choice schools will be released. The only "limitation"is that DPI must release it at the same time.

Cross posted at Purple Wisconsin

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.