On prejudice, politics and prosecution

Here we go again.

In the wake of the tragic death of Corey Stingley and the need to determine whether the men who restrained him are criminally culpable, folks are sorting themselves out on the question of whether charges should have been brought - often based on pre-existing beliefs about things like crime and race.

I don't know if a crime should have been charged. And I am pretty sure that a good number of those who are protesting, marching, declaiming and dismissing don't either.

I understand the concern. This was an awful event that shouldn't have happened. I appreciate that there is a history that causes people to be concerned about disproportionate responses to young black males. While I think, in 2014, that much of that concern is overstated, it is understandable.

But to recognize that is not the same as saying that a crime was committed.

In order to have an intelligent opinion on whether the patrons who restrained Corey should have been charged, you would have had to have done the work that the District Attorney's office did. You would have to have reviewed all the evidence - not some version of it provided to you by people with a position to defend. You would not merely ask yourself "what do I think happened here?" You would also need to decide whether you could prove to someone else that the men to be charged acted with criminal intent beyond a reasonable doubt.

Whatever views you hold about the nature of society or race in America or the nature of the crime problem in Milwaukee won't help you answer those questions.

On the one hand, criminal charges should not be brought to assuage offended communities or send messages of inclusivity. They should not be brought because they fit some narrative we believe about "injustice" or a system that does not work for people "of color."

I understand that some folks believe that no one has a right to restrain a lawbreaker. This is not an accurate statement of the law and strikes me as a sadly empty view of what it means to be a community. It suggests that we are all feckless supplicants who must wait for the authorities to do for us what we might need to do for ourselves.

On the other hand, your belief that crime is out of control and that citizens have a right to defend themselves doesn't get you very far either. The fact that the men in question were restraining a lawbreaker was not a license to do whatever they wanted.

I have heard a few people say that Corey Stingley wouldn't be dead if he hadn't stolen something or fought with the men who tried to restrain him. That's true, but not very helpful. It wasn't wrong for other patrons to restrain Stingley. It would be wrong for them to choke him to death. It would, under the law, be wrong for them to act with intent to harm him or to create an unreasonable and substantial risk of death or great bodily harm of which they were aware.

Being "tough on crime" or in favor of "self defense" won't help you decide whether that happened.

But, being human, our preexisting beliefs will affect how we view the evidence. If you believe that it is "open season" on young African-Americans, you're going to be more likely to view the facts here in a way that supports criminal charges. If you don't believe that - and think that certain communities are plagued by criminal behavior - you will be more sympathetic to the men who retrained Stingley.

The only way that you can counteract your confirmation bias is to be aware that you have it. Rushing to the barricades with cries of "injustice" or "thuggery" won't help.


Cross posted at Purple Wisconsin

A word from a killjoy

Purple Wisconsin blogger Jim Rowen is unhappy with "killjoys" who were put off by Richard Sherman's rant at the end of Sunday's NFL title game. Sherman, according to Jim, was just "whooping it up." What's the problem?

Well, allow me to retort.

I'll give Sherman a bit of leeway for three reasons. First, the game was just over and football does require a certain amount of spleen. Second, the 49ers - a team every bit as chippy as Sherman's Seahawks - do bring this type of thing on themselves. Finally, I imagine that Sherman is no fool. He's creating a brand.

But only a little leeway. Maybe Jim has forgotten a world where people were expected to conduct themselves with a bit of decorum and class, but I haven't. One of things that you were supposed to do is be gracious in victory and show your opponent a modicum of respect. This wasn't just antiquated etiquette. It was a way of keeping sports in perspective and reminding ourselves that our games are not war. If you don't respect your opponent; you can't respect the game. We call it sportsmanship.

Now maybe this is out of fashion in a world where "keeping it real" - without regard to whether all that authenticity is worth a fig - is supposedly a higher value.

But it shouldn't be. If that's the real Richard Sherman, he's a bore.

Cross posted at Purple Wisconsin.

No, extending unemployment benefits does have a cost

Every once in a while, I read something on the Purple Wisconsin site that brings me up short; that begs for a response. Recently, it was the following statement made by Kristin Hansen in a column making a "you can have your cake and eat it too" argument for extending unemployment benefits. She wrote:

Republicans love to complain that we can’t “afford” to pay unemployment benefits. But anyone who’s taken Econ 101 can tell you that cash paid out to the unemployed stimulates the economy by more than one and a half times its cost.

I am not an economist, but I went well past Economics 101.  I don't "know" that.

I'll concede, however, if someone took only Economics 101 and had a bad instructor, he or she might be "told" that.  While I understand Ms. Hansen has as little space in a blog post as I do, hers is a statement of a crude form of Keynesianism. But not all economists are Keynesians and even those who are have come to see the proposition as requiring a great deal more nuance. The reality is that what she says "everyone knows" is a highly controverted assertion based on cherry picking certain econometric models that are contradicted by other models.

The theory is this.  At least under certain economic conditions (a qualification that is often overlooked), moving money from one hand to another may result in greater aggregate demand and higher levels of economic activity. In this case, the hypothesis is that, if you give money to lower income people (the unemployed), they'll spend it, while the wealthier folks who you take it from would just put it in the bank. Because this activity reverberates through the economy, a dollar of goverment spending might be subject to a "multiplier" effect and generate more than a dollar in economic activity.

An immediate problem is that money in the bank is presumably used for investment that itself creates economic activity - although the Keynesian story is that, in times of recession, there will be no demand for invested funds. Another level of complexity arises if one one abandons the assumptions that people will react as if they are unaware that whatever is being done to "stimulate" the economy is only temporary and that those who are supposed to spend their newfound wealth or invest in response to such spending will not take into account that, at some point, taxes must be raised to pay for the stimulus. (The latter results in an odd argument about "animal spirits" that I have never been able to take seriously.)

The Keynesian view must establish that there is something wrong with the price system. It must explain why the goverment will know how to allocate resources more efficiently than the market.

Of course, this is a simplified version of the debate and there are others more qualified to elaborate on it than I am.  But what does the evidence show?

Ms. Hansen's observation is based on certain econometric studies (here's one oft-cited example) that claim to have "found" that the Keynesian story is true, The value of econometric models is itself vigorously disputed. Because we can't run really run controlled experiments in economics and the competing explanations for any particular economic state of affairs are multiple and intertwined, you have to make a great many assumptions about the relationship between the policy that you are evaluating and the result that you are "finding."

As a result, these studies tend to go every which way.  Some find that government spending, like extending unemployment benefits have a positive multiplier, while others find that they do not - even concluding that the "multiplier" is less than one. One of the real challenges for the Keynesian view is that there are no clear examples of it ever having worked as advertised in the real world. (The oft-cited example is World War II, but that really goes against the Keynesians.)

The Obama administration has engaged in an extended period of deficit spending - often by fiat - with little to show for it, although Keynesian proponents can always argue that whatever was done was not "enough" or, without it, the economy would have been "worse."

My own view is that, if one wants to make an argument for extending unemployment benefits (and I am not necessarily against it), it ought to be a humanitarian argument. That argument will have to acknowledge the risk that extending benefits may increase unemployment (by reducing the incentive to look for work), but argue that the benefit of helping those who simply can't find work is worth the cost.

But to argue that a positive multiplier effect is as certain as the Second Law of Thermodynamics is to confuse wishful thinking for proof.

Cross posted at Purple Wisconsin

Tips for the truce

Over at Purple Wisconsin, Alex Runner invokes the famous Christmas Truce of 1914 as a way to think - just a little - about our political wars. If combatants in one of the most brutal and perplexing wars in human history could manage to treat each other as human beings, why can't we?

I've endorsed the sentiment on a number of occasions, what strikes me as more difficult is describing how we might go about a kinder and gentler debate.  While our political differences are not as stark as they might seem to be, they do matter.  And I understand that, while 30 years as a lawyer have taught me how to go out for a drink with someone I've fought with all day (it's in the game), others are not as acclimated to staying between the white lines as lawyers are trained to be.

But here are a few ideas.

If you think that your political opponent is evil, you are probably wrong. Most liberals are not fanatical communists or amoral libertines. Most conservatives are not heartless and greedy or censorious  prudes. People differ in the priority that they place on often competing, but commonly shared, values - say liberty v. equality - and in their judgments on the way that the world works and what must be done to serve those values. Beware of responding to a cartoon that you have created, as opposed to real people and the arguments that they make.

If you think that your political opponent is corrupt, you are probably wrong. Here's how I know. Most on the left believe that wealthy conservative donors are out for the main chance; motivated solely by the desire to keep what they have and get more. In fact, most of these people are well beyond personal concern about what American politics can do to them.  What motivates them is a sincere belief that certain policies will harm, while others will help, their country. I'll assume - until I'm shown otherwise - that the other side is similarly sincere.

Resist the desire to destroy your political opponent.  One of the most treacherous developments in our politics is the irresponsibility with which certain people have attempted to criminalize political differences. (Yes, I am talking about the John Doe, but conservatives are not without sin here.)  Another is to place the most uncharitable - and often unreasonable - interpretation on something that a person is said in order to label them as "racist," "homophobic," "un-American" or "pro-criminal."  Most of us are none of these things. Cut it out.

Acknowledge when the other side has a point.  The left, in my view, overstates income inequality and does not have a strong set of ideas to address the inequality that does exist. But concern for middle class progress and for the poor is not "anti-conservative" or even incompatible with free markets and economic liberty. But addressing how this can be so requires acknowledging the problem to be addressed.  Liberals who assume away the difficulty in presuming that government actors are somehow more virtuous or prescient than private persons acting in markets have essentially skipped the debate.

Understand why these things are hard. Two reasons. We are all subject to confirmation bias. I am far more likely to see the flaws in the other side's arguments and assume the worse about my opponent's motivation. I can't prevent that but I can minimize.  More fundamentally, political enmity and aggressiveness are phenomena that feed on themselves. If my opponent treats our fight as no holds barred, I can hardly abide by the Marquis of Queensbury rules.  If you do unto others, others will have no choice but to do unto you.

Take things in stride.  Even a kinder and gentler argument is an argument. People will take positions and say things that may make you want to take offense. Try not to. If you want to add a little zest now and then, accept it from the other side. As I say, it's in the game.

Be realistic.  I don't expect to dislike lawyers on the other side or carry our battles outside the litigation. But I do expect to have a battle. Just as clients really have opposing interests, our political battles reflect real differences of opinion about things that matter and cannot be dismissed as mere "partisanship." Respect does not imply agreement. It is simply not the case that, if we put "politics" aside, we'll magically agree on things.

Cross posted at Purple Wisconsin.

One Wisconsin Now: Nelson Mandela's South Africa Assaults Voter Rights

Brian Fraley points out that One Wisconsin Now has been caught in an embarassing bout of cluelessness.

OWN used the occasion of Nelson Mandela's death to make a cheap political point, praising Mandela as a champion of democracy and contrasting him with Governor Walker and his supposed "assault" on the right to vote; presumably a reference to the requirement that voters present a photo ID and proposals for stricter registration rules.

Mandela was a champion of democracy but South Africa requires voters to have an identification card to vote and has far more stringent registration rules than Republicans in Wisconsin have ever proposed. 

To get an identification card in South Africa, you must submit two identical color photographs and "[a] certified copy of your Birth certificate or reference book or a copy of the old Transkei, Bophutatswana, Venda or Ciskei homelands identity or travel documents." Having to obtain a birth certificate to get a photo identification card is, of course, regarded by OWN and other opponents of voter ID as tantamount to fascism. Who knew that Mandela's South Africa was so Republican?

But OWN isn't the only one to suffer from foot in mouth disease on this.  Jesse Jackson made the same blunder. 

It would have been a tad more classy to mark the passing of a great man without trying to turn it into a sophmoric talking point. Maybe next time.

Cross posted at Purple Wisconsin

Recusal and Investigations

My column on recusal and the reported John Doe proceeding can be found here. (Subscription required.)

Let me revise and extend my remarks.  The question is presented is whether justices on the state supreme court would have to recuse themselves in a case involving their supporters - in this case, conservative justices whose campaigns may have benefited from issue advocacy by conservative advocacy groups who may now be under investigation for activities undertaken in other elections. 

it is black letter law that recusal is not required simply because a litigant has contributed to or engaged in independent expenditures that may have benefited the campaign of a justice.  My view is while recusal in such circumstances may be required in extreme cases - say when there has been extraordinary and pivotal support fromm a non-ideological organization with a significant matter pending before the court at the time that the support is given - an aggressive approach to recusal on a collegial law developing court of last resort is inconsistent with the idea of judicial elections.  Because we are committed to electing judges in Wisconsin (almost everyone agrees that any proposal to abolish such elections would be dead on arrival), we can't take an expansive approach to recusal.

Lest you think I am adopting this position because the immediate question involves the recusal of conservative judges in a John Doe investigation rumored to be targetting conservative advocay organizations, I first developed this position in a law review published several years ago.  Insomniacs can find it here.

There are two problems with the argument for recusal. The first is that it has no stopping point. If justices who have benefitted from the activities of, say, conervative advocacy groups must recuse, then why wouldn't those who may be harmed by those activities also be required to recuse themselves.  If judges supported by a group like WMC must step down in a case involving WMC, then why wouldn't judges opposed by the group also be required to step aside.

What is good for the goose is good for the gander. Why should those justices who have traditionally benn supported by public employee unions, for example, sit on cases involving challenges to Act 10.

Second, it is no good to say that you want everyone to recuse as long as we have judicial elections and a First Amendment that protects the right of persons to be heard on the issues and candidates involved in those elections.  Judicial elections are predicated on the notion that our desire for judicial independence must be balanced agains the need for judicial accountability and that we trust both the public and judges to, on the one hand, choose wisely on the basis of legitimate issues and, on the other, to cease campaign mode when it is time to assume the bench.

You may disagree with those notions but, if you do, the answer is not to advocate for aggressive recusal standards, but to seek a different method of judicial selection.

Cross posted at Purple Wisconsin.
 

JFK Remembered, Part II

Recollections of the Kennedy assassination often reveal more about 2013 and the psychic needs of those who write them than they do of the late President or the events in Dealey Plaza. 

As I’ve mentioned before, there have been repeated invocations – in major and supposedly reputable media outlets – of the silly meme that “Dallas” or “America” (expressly or implicitly meaning “the right”) was responsible for the assassination.  These accounts reflexively refer to supposed “Tea Party” anger as a reflection of the same phenomenon. 

This is ominous nonsense. It requires a studied avoidance of the facts and a dislocated logic to turn reality upside down. There was no right wing violence in Dallas on November 22, 1963.  There was only a deranged communist with a rifle.   

This twisting of the truth is not new. As James Pierson recounts in his excellent book Camelot & the Cultural Revolution: How the Assassination of John F. Kennedy Shattered American Liberalism, this distortion began almost immediately.  It reflected, in part, Jackie Kennedy’s horror that her husband had not even had the “satisfaction of dying for civil rights”, but was killed by a “silly communist.” While one would think that opposition to communism was a human rights issue of the first order, otherwise intelligent people insisted – over all available facts – that what they wanted to be true was true. 

But to avoid blaming the Marxist, liberals had to blame everyone.  Because they couldn’t concede that Oswald was motivated by what he actually believed, he had to become the product of a “sick society.”  Pierson argues that this contributed to the left’s embrace of transgression and an oppositional stance toward America and conventional values. 

It’s an interesting observation, but a bit overstated. In that sense it’s like the claim that Kennedy was really a conservative, most recently expressed by Ira Stoll in his book, JFK, Conservative.  Kennedy was certainly well to the right of today’s Democratic Party, but he wasn’t a twenty-first century conservative either. 

The reluctance to face the truth is a prime factor behind the continued vitality of conspiracy theories – which generally turn out to be based on a curious mix of credulity, half-truths and an adamant refusal to ask the next question.  If Oswald is an inconvenient assassin, it becomes necessary to find another. 

At its extreme, this desire to evade uncomfortable facts can amount to an assault on the very idea of truth.  Last Friday, this paper reprinted an op-ed by Syracuse Professor Douglas Brodie who suggested that, since we cannot deny that Oswald was shooting at someone from the sixth floor of the Texas School Book Depository, perhaps he was shooting at the real assassins in the grassy knoll and, alas, missed. 

My first reaction was to think he ripping off a Family Guy vignette that made the same point as a joke.  (But Oswald could not have voted for Kennedy in 1960 since he was living in the Soviet Union.) 

But Brode is apparently serious – not in the sense that he thinks he can prove it – but as the presentation of “a truth” that comports with what Douglas Brode thinks and is therefore “enlightening.” 

Brode is a novelist and film critic, so perhaps he can be excused.   

Others, not so much.

Cross posted at Purple Wisconsin.

JFK Remembered, Part I

At the time of the assassination of President Kennedy, I was sitting in Sister Mary Mel’s class at Holy Family School.  We were told that the President had been shot and led in prayer.  My initial reaction was as follows. 

The President lives in Washington.   Washington was kind of up there near Alaska and Russia (I had Sarah Palin beat) and the President must have been on a reconnaissance mission across the border.  He was probably winged in the shoulder. He’ll be fine. 

After what seemed like a very short period of time, we were told that the President had died, prayed again and were sent home.  I remember stopping to cry next to a birch tree that was then at the intersection of Cumberland and Hampton. 

When I got home, I saw that the assassination was all so adult. Everyone was in suits.  Of course I was old enough to know that it had to be that way and chagrined that I had thought otherwise.  While I don’t buy much of the notion that American “lost its innocence” on November 22, 1963, the world did become a bit less enchanted for little Ricky Esenberg. 

Although I did not yet know it, my parents were beginning the process of a divorce and a few weeks later, we moved to a small apartment in Cudahy. Life certainly changed for me. But what was the larger significance of the event? 

Many of the narratives about that have always seemed overstated to me.  To be sure, as a piece of personal and national tragedy played out in what was then the still new medium of television, it was unprecedented.  It was sudden, brutal and public in a way that nothing like it had ever been.  It was the first time we all huddled around our TVs to share in something horrible.  Sadly, it was not the last. 

But in terms of the course of the country, the impact of the assassination seems less clear. JFK was, at best, a middling President; a deeply flawed but extremely attractive personality who can be – somewhat anachronistically – either claimed or eschewed by both sides of 2013’s political spectrum.  He was certainly a New Deal Liberal but not of the transgressive Left that has become mainstream today.  He was a committed Cold Warrior, but often clumsy in its execution.  Initially a reluctant advocate for civil rights, he did the right thing when he had to and, like Truman and Eisenhower before him and Johnson after him, deserves credit for helping to move America forward on race.   

Kennedy was, essentially, the author of our involvement in Vietnam but had not yet escalated it, so historians are able to argue about what he would have done there had he lived.  Committed to a larger government, he was the author of a supply side tax cut. He was hated by the extreme right (what became modern conservatism was only nascent in 1963) but murdered by a Marxist. 

Kennedy was charming and, there really is no other word for it, glamorous.  At the same time, he was the product of corruption and a reckless cheater.  He portrayed a public image of vigor, but was in extremely poor health. 

There is a sense in which JFK was, as National Review, recently put it, a “beautiful mediocrity.”  While it is a bit unfair to call anyone who becomes President of the United States mediocre, Kennedy was largely a figure of style and sensibility rather than substance.  His Presidency began as a metaphor for a post war confidence and ended in a tragedy that was achingly poignant.  He was a vessel into which we could pour whatever we wish.  Fifty years on, we continue to do precisely that.

Cross posted at Purple Wisconsin

Killing Kennedy Tells the Story

As we enter into the final run-up to the 50th anniversary of the assassination of John F. Kennedy, I have a declaration to make. I am a buff.  I can hold forth on the single bullet theory and tell you why it is certainly true. I can tell you why the Zapruder film confirms, rather than contradicts, the theory of a single shooter in the rear of the motorcade. I can engage you in a conversation about the identities of Door Man, Umbrella Man and the Hoboes. I can go on for longer than anyone should be able about the odd life of Lee Harvey Oswald.

So I was taken aback by Duane Dudek's review of Killing Kennedy, a film version of Bill O'Reilly's book that aired last night on the National Geographic Channel.  The film, he writes, "doesn't tell us Jack."

Cute line but wrong.  The film is derivative but it tells a story that most of us have not heard.

One of the things that has always struck me is that there is a public narrative about the assassination that is spectacularly false. Kennedy is often claimed - or implied - to be a martyr to some generalized notion of "American" or even right wing violence.  Recently, there have recently been a few cringeworthy examples of that narrative in the liberal press (Salon, Slate and the New York Times) and the idea is advanced in a new book called Dallas 1963.

But the facts are these, Kennedy was shot by a Marxist who had defected to the Soviet Union and tried to defect to Cuba in the month before the assassination.  In March of 1963, he had tried to kill former General Edwin Walker, an extreme right wing figure living in Dallas. In the months before the assassination, he had been trying to engage the Communist Party USA, Fair Play for Cuba Committee and the Daily Worker (all of whom held him at arm's length) in support of his political activities.

I'll bet most of you didn't know that.

This isn't to say that the "left" killed Kennedy who was an enthusiastic Cold Warrior.  Oswald was an angry man with delusions of grandeur whose pathologies expressed themselves in left wing terms. He
was actually as ignorant of Marxist philosophy as he was of capitalism.

But it does undercut the Kennedy as a martyr of some American or right wing "sickness" and, for that reason, is useful to know. "Killing Kennedy" is a (mostly) accurate portrayal of those facts (there is a bit of dramatice license and compression) and, contrary to Dudek's claim, will tell most viewers quite a bit that they did not know.

Cross posted at Purple Wisconsin.

Does the Milwaukee Common Council Hate the First Amendment?

The First Amendment to the United States Constitution guarantees the freedom of speech and of the press as well as the right to assemble and petition the government for redress of grievances.  The Supreme Court has recognized that these right  establish a right of association,  reasoning that “"implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” 

This afternoon, the Milwaukee Common Council will be asked to oppose these constitutional protections.   

On the agenda is a meaningless resolution asking the Council to endorse an amendment to the Constitution establishing that “only human beings--not corporations, unions, nonprofit organizations, or similar associations--are endowed with constitutional rights, and that limiting political contributions and spending is not equivalent to restricting political speech .” 

Now, the Milwaukee Common Council has about as much influence on whether the Constitution will be amended as I do. This is a classic political stunt by which elected officials seek to genuflect to some grand cause that they have no ability to further rather than attend to their jobs. It’s not surprising. Empty gestures are easy. Governing is hard.

But we should be clear about what this empty gesture endorses. It is not liberty. It is not equality.  It is fascism. 

Yes, I chose that word deliberately and with great care.

 

Should the Constitution be amended in the silly way that the Common Council is being asked to endorse, organizations like the ACLU and NAACP would have no right to advocate for their members. This newspaper would have no constitutionally protected freedom to publish.  The Bush administration would have been free to shut down MoveOn.org.  All of these entities are “corporations.” 

Both prongs of the proposed amendment would eviscerate the freedom of association (persons who gather together to speak typically incorporate or form “organizations”) and the freedom of speech. To say that limiting “political spending” is not restricting political speech is to say that the government can deprive advocacy organizations of the means to speak.  In the brave new world that the proposed amendment would establish, the government could silence unwanted voices by denying them the ability to effectively communicate their views. Want to publish a book or magazine? Put up a website or make a movie? Hire canvassers to distribute literature? It all costs money. 

Yes, I understand the motivation. Sponsors believe that people who are able to spend a greater amount of money on politics have an unfair advantage and government is sold to the highest bidder. But there is virtually no evidence that this actually happens (money tends to be on both sides of most elections and there are countervailing advantages) or that the blunderbuss proposed is necessary to address it.

McCutcheon v. FEC

Yesterday, the United States Supreme Court heard argument in McCutcheon v. FEC, a case challenging the constitutionality on limits on the amount of lawful campaign contributions a person can make. My take on the issue is here at US News' Debate Club.  The other side's view is a bit more popular.

The lights are not out

I arose this morning to a headline in today's Journal Sentinel  telling me that it is "lights out" today as the federal government shuts down and Obamacare proceeds.

Give me a break. The lights aren't out and calling what is happening today a government "shutdown" is a tad hyperbolic and, to the paper’s credit, the text of its report makes clear that the “shutdown” is “partial.”

Very partial. 

Now that the "lights" are "out," just what is the federal government not doing?  Are the military and national security apparatus on hiatus? No, they are not.  If you go Mitchell International today, there will be air traffic controllers in the tower and TSA personnel to run you through the airport Macarena. The food and drug safety agencies remain in operation and, if there is a disaster, FEMA will roll - at least as much as it ever does. The Fed and banking regulators are operational. The FBI is working. The courts are open.  In fact, the majority of federal workers are still going in. Benefits checks are still going out and taxes are still being collected.

This is all because Congress has provided that, in the event of a funding gap, "essential services" will continue and "essential" is defined rather broadly. In fact, one is tempted to argue that, if a federal job is not considered essential and immune from "shutdown," it probably shouldn't exist.

I won’t go that far – an extended furlough of some of these workers would be undesirable – but the sky is not falling.  Congress has provided that “essential” are to continue because "shutdowns" like this are not uncommon. Prior to today, we have had 17 since 1977 most of them prompted by issues far less compelling than the President's stubborn commitment to roll out parts of a health care plan which is clearly not ready for prime time even as he lawlessly refuses to implement other parts and grants exemptions to political cronies.

Lights out? It would be more accurate to say they’ve been dimmed. A little.

Cross posted at Purple Wisconsin.

Must we exclude the people to save the people?

Purple Wisconsin blogger Jim Rowen directs us to state Rep. Chris Taylor's diary of her attendance at the Chicago meeting of the American Legislative Exchange Conference. The left's obsession with ALEC as some kind of dark and secret conspiracy is, at best, silly and, at worst, a calculated bit of cynicism. Jim Rowen and Rep. Taylor know that there are many exchanges, forums and organizations that provide the type of networking and expertise for liberals that ALEC provides for conservatives. IF ALEC was operating in the "dark," it would have hardly have allowed Rep. Taylor into its bowels.

What struck me about Rep. Taylor's diary was her description of an exchange with someone promoting a constitutional amendment to require Congressional approval of federal regulations. She doesn't identify the man, but I am passingly familiar with the idea and pretty sure that I know who she spoke to.  She's either missing the point or deliberately burying it.

Rep. Taylor seems to think that "regulatory reform" would be an odd thing to put in the Constitution and is something that "the people" would not - and should not - care about. She should pay a bit more attention to constitutional theory and history.

Over the past fifty years or so, there has been a judicial erosion of the so-called "non-delegation" doctrine. The doctrine formally states that Congress may not delegate legislative authority to administrative agencies.  It is rooted in the recognition that it is Congress, the elected representatives of the people, who are to pass the laws and embodies the principle that democratic decision-making may not be frustrated by delegating this power to unelected federal agencies.

The problem is that the courts have not done very well in enforcing this principle, permitting Congress to authorize agency rule-making through broad directives that provide little guidance and few, in any limitations. In doing so, it has gutted the "anti-delegation" doctrine and gone a great way to "remove" the people from the process of making law. The agencies effectively determine policy by adopting regulations that have the force of law and that Congress never voted for.

Now if you want a lot of meddling by the federal government and ideological "experts" in our national life, this is no problem at all. Regulatory agencies, operating, for the most part, out of the spotlight and far more responsive to special interests and advocacy organizations than "the people," will manage to do things that could never get through Congress.

But to defend that view in the name of "the people' is passingly strange.

Cross posted at Purple Wisconsin

Satan, speech and stickers

Yesterday, Dan Bice wrote about Steven Krieser,an official in the Walker administration who was fired for saying that when he thinks about illegal immigrants, he sees  "Satan" in a Facebook post. Gov. Walker promptly fired him.

Did he deserve to be fired? Yes. I dislike - really dislike - the mandatory paroxysms of disgusts that we are supposed to exhibit whenever someone makes a comment suggesting unapproved forms of bigotry (not all bigotries are unapproved). I think we are far too willing to judge a life by one ill considered statement.

Having said that, while it is preposterous to label people who believe that illegal immigration is harmful and should be stopped "racist," it seems equally wrong (if distressingly common) to turn a legitimate policy dispute into a battle between the forces of good and evil ("I see Satan") and to dehumanize illegal immigrants by likening them to the forces of darkness. It is uncivil, un-Christian and miles over the top. I might even say that there is a whiff of sulphur in the tendency of people to - in this case, literally - demonize their opponents.

So I'm sympathetic to the Governor. If one of my employees had done something like that, I'd be inclined to do the same thing.

Is it legal? I think so, but the question deserves to be asked. Firing a public employee is state action and we must consider how it squares with the First Amendment.  Under what circumstances can a public employee be fired for his or here speech?

You might think that, since no one has a right to a government job, the state can fire someone for saying something gobsmackingly stupid and, for many years, that's how the United States Supreme Court saw it as well.

But in more recent years, the Court has recognized First Amendment limits on the ability of the government to fire people based on their speech. Essentially, public employees have a right to speak on matters of public concern in their private capacity without adverse employment consequences - unless their speech substantially interferes with his or her capacity to do the jobs.

Thus, it was unconstitutional to file a lower level government employee for stating, shortly after the failed assassination attempt on Ronald Reagan, that she hoped they "get him" the next time.

This evolution of doctrine probably won't help Krieser. I don't know the particulars of Kreiser's job. But if he is a political employee or policy maker (as seems to be the case), it may well be that the expression of attitudes that are inconsistent with administration policy or which place the administration in a bad light do substantially interfering with his ability to do his job. (This suggests that lower level public employees can spew hate and, as a quick review of Wisconsin political blogs demonstrate, some do.)

Kreiser's comments were apparently prompted by an on-line discussion of the sale of a mock "hunting license" sticker or illegal immigrants at a Mobil station in Germantown. The "license" is an astonishing bit of dreck - hunting human beings is not funny. Whoever runs this particular Mobil station in Germantown is, at best, a first class idiot.

Rep. Gordon Hintz asks if we  "could not sell these stickers in 2013?" The answer is easy. The First Amendment allows us to sell them (the sticker does not amount to the type of imminent incitement of violence or offer to commit violence that might be constitutionally prescribed).

But we shouldn't. Again, I think reasonable people can differ about immigration issues. But I do not understand why it is funny to joke about shooting people because one doesn't like what they're doing. Not only does the sticker reflect poorly on station management, it insults the station's customers.

No, I don't think that the sticker is going to "cause" people to go out and commit violence but it's just one more contributor to the degradation of the public culture. It makes one long for the days before gas stations became convenience stores. 

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