Of city and suburbs

Milwaukee's city-suburban wars have been going on for longer than I can remember. The one constant has been a failure of each side to understand the legitimate concerns of the other and to dismiss either the "'burbs" or the "city" with unwarranted caricatures.

A case in point: the recent contretemps between my Purple Wisconsin colleague Alex Runner and Waukesha blogger Nate Sass. Both seem to be decent enough blokes but something about this particular fault line seems to generate more heat than light.

Sass goes first, suggesting that a new arena ought to be built in Waukesha or at least not downtown. These, it seems to me, are at least tenable suggestions; certainly nothing that should earn the author contempt.  If you want regional funding for a new building, you need to take into account regional perspectives. Putting aside whether there ought to be public funding, I tend to think that downtown or Menomonee Valley are the best locations. But if you want to ask the suburbs for money, you ought not dismiss the suggestion that the playground be built in the suburbs as beyond the pale.

Sass points out that the BMO Harris Center did not lead to the economic development that was once hoped for. This too strikes me as a legitimate point. The sluggish performance of the Bradley Center neighborhood does not mean that a new arena in that area can't do better, but it would be foolish not to ask why things didn't turn out better.

In my mind, Sass goes off the rails in suggesting that downtown Milwaukee is a wasteland that no one wants to visit. That is demonstrably false. Crime is not a problem in downtown Milwaukee and parking is quite manageable. If he doesn't think so, he should leave Waukesha and head down there this summer.

I agree that Milwaukee is not Manhattan or Chicago. Only a handful of cities in the world are. I also agree that it is not Madison. It makes Madison look like Fargo.

In response to this, Alex loses his last nerve, calling Sass' piece a "hack job." But Sass makes a couple of points that urban advocates should not lose sight of.

The first is that the suburbs are no longer dependent on - and do not live off - the city. To be sure, Brookfield and Mequon came to be because Milwaukee was there first. But so were Grosse Pointe and Southfield a product of Detroit. That they don't need Detroit anymore is evident from a drive the length of Woodward Avenue.

This is more true today than ever. Three years ago, when I founded the Wisconsin Institute for Law & Liberty, I put it in downtown Milwaukee for no reason other than my subjective preference to be there. There was absolutely no business reason to do so.

The implication of that point is that the city is not in a position to demand that the suburbs pay for whatever it wants however it wants it. One cannot build a great city by expecting outsiders to fund things that John Lindsay thought were good ideas in 1966. Milwaukee will not rise on the power of government. If you want prosperity, you need to earn it. It won't come by politics.

I appreciate that many people believe this is unfair. It is no less true for that.

The second is that, when public money from the outside is properly spent, it must come with political participation. Sass is correct to point out that the MMSD is a prime example of a "regional" approach that one side has attempted to dominate at the expense of the other. That's one reason it hasn't worked very well.

It is risible for Milwaukee to say that is just wants to be "left alone." That's the last thing it wants. Being left alone - to truly exercise "local control" - would mean ceasing to be a supplicant. The city would have to announce that it no longer wants to receive tax dollars generated outside its borders.

Indeed, conservative that I am, I don't believe that Milwaukee should be "left alone" in this way, although I believe that many of the preferred nostrums of Milwaukee politicians are ill conceived and counterproductive. I am not anti-urban. I am anti-urban "progressivism."

But Milwaukee can't expect to be inveterately hostile to the interests of the larger region - yes, I'm talking freeways, streetcars and taxes - and not expect to reap hostility in turn.

Cross posted at Purple Wisconsin.

Nullification on the left and right

I wrote an earlier post about secession. Now I should address nullification.

It's not constitutional. The United States Constitution makes clear that federal law has supremacy over conflicting state law. Resolutions calling for acts of nullification are, at best, wastes of time and, at worst, bad politics. They give fodder to your enemies.

But I do think that three observations are in order.

First, I don't mind that Dan Bice keeps writing about this, but I would think - if he is looking for crackpots to box around - that he might point out to his readers that Shorewood and a number of other communities around the state recently voted to repeal the First Amendment rights of the newspaper works for - as well as every other newspaper and broadcast station in the country.

Second, while we ought to respect the Supremacy Clause in our constitution, we should also respect constitutional limitations on the power of the federal government. Over the past eighty years, those limitation, with the acquiescence of the Supreme Court, have been largely ignored through a combination of lawyerly sophistry and indifference. Legal sophisticates try to avoid a debate about this by presenting this a a fait accompli - something that it makes no sense to question and is, in any event, an inevitable outcome of the centralizing tendencies of the twentieth century. That's not so and a resolution addressing that would be appropriate.

Third, I sure hope that we are going to see as much emphasis on the crackpottery of the Democratic Party resolutions committee. It is not clear to me, for example, that support for nullification or secession in "extreme" circumstances is any worse than support for abortion until, literally, the moment of delivery or, as noted above, repealing the First Amendment rights of newspapers and other legal associations of persons.

A few thoughts on the cranky old racist

Donald Sterling has long been, for good  reason, a pariah among owners of professional sports teams. Not only were his Clippers among the worst run franchises in sports, he seemed to mix his incompetence with multiple layers of distastefulness such as that recently on display.

So there's really no point in commenting on his philosophy of race and the single girl. It's too weird. Here's a guy carrying on with a woman who is young enough to be his granddaughter. (He has obviously forgotten the controversial - but time honored and scientifically validated - rule for these things.)

Although she is apparently of black parentage, he doesn't want her to be seen with black people (who he, nevertheless, says are "wonderful") because ... well, I don't know. Apparently because he "has to live in" some kind of "culture" that doesn't  .... what ... want black people at NBA games? Or maybe "the culture"  just doesn't want black people at NBA games with a woman that Donald Sterling is trying to pretend isn't black - one who, he says,  is supposed to be a "delicate white or Latina"?

You figure it out. I can't. This is serious psycho-scrapple. But panic over African American men being around white women is an historic and ugly manifestation of racism. I suspect that had somehing to do with it.

But it's also a no-brainer to condemn, so let's consider four additional points.

First, Christian Schneider thinks we should quit excusing old people from being racists. I hadn't noticed that we did. But let me endorse the sentiment and add an observation or two.

The March on Washington took place over 50 years ago. Donald Sterling, according to the authorities at Wikipedia, was 30 years old then. The civil rights movement was not something that happened after he was a crusty old fart set in his ways. Maybe we could excuse those people - say Strom Thurmond or George Wallace - who were "too old" to adjust (and, actually, Thurmond and Wallace did change; at least a little), but those old people are mostly dead now.

More fundamentally, you don't get to be a crusty old fart set in your ways. You can think that older ways of thinking were better - often they were (albeit not on this issue) - but you have to keep making the case for the good old days.  Getting older doesn't mean you get to stop thinking. In fact, doing that will make it harder for you to keep getting older.

So, just as I wouldn't excuse Henry Aaron for not understanding the modern world, Sterling gets no pass. (And, no, the fact that I won't allow either to use the "stuck in the past" excuse does not "equate" their remarks.)

Besides, if he wants to run with a 21st century hottie, he needs to act his pretend age. Suck in your gut and let Lolita bring Magic Johnson into the luxury box.

Second, what should the NBA do? As I write this, he has been fined and banned for life. Adam Silver, Commissioner of the NBA, intends to try to force him to sell the team. This seems about right to me -although I'm a little unclear as to how you ban him from the league and still collect the fine.

I am not suggesting that everyone with views we disapprove of or that are unpopular should be driven from public life. I am very critical of Mozilla for firing its CEO because he differs with Silicon Valley's regnant view on the purpose and meaning of marriage. Civility requires that we learn to live, do business and sometimes even play with people we disagree with.

But all disagreements aren't the same. Saying that you don't want black people at your games - or don't want them there with certain kinds of people - is a delusion too far.

I detest our contemporary habit of condemning people based on an isolated remark. But this was an entire and rather belabored conversation. More fundamentally, it is consistent with some of Sterling's behavior in the past.

It is certainly true that publicizing private conversations is icky. In some states and under some circumstances, it is even illegal. But that's a different issue for another day.

Third, we shouldn't try to make this into a proxy for something that it isn't. In the wake of Sterling's comments, some conservatives inappropriately tried to make hay of his donations to Democratic candidates. Liberals tried to spike the football over the fact that he is a registered Republicans. In a truly silly column, Jeffrey Toobin seems to think that the remarks of this addle-brained and long standing creep (along with those of the crank Cliven Bundy) mean that we can't really ban discrimination on the basis of race. (More on that later.)

Donald Sterling's racism and his odd panic over his black and Hispanic girlfriend are about Donald Sterling.

Finally, what does this mean for us? Before a whole slew of new baseball palaces were built in the late nineties and oughts, MLB used Florida as a threat to get cities with existing franchises to come over with public money. Don't want to build a stadium? Tampa would love to have your team. (Ironically, when Florida did get baseball, it turned out that it wasn't a great location.)

The NFL uses Los Angeles in he same way. The NBA uses Seattle. If, as I suspect, the Clippers get sold, it's not clear to me that someone paying a market price would want to keep it as a second LA team. It may well be that the Clippers go to Seattle. I don't think that means the Bucks can stay in the Bradley Center, but it might change the dynamic.

Cross posted at Purple Wisconsin.

Let's succeed and not secede

Both political parties have to deal with purists whose enthusiasm overcomes their common sense. Political activists have more passion than most and passion is not always well informed.

So let me say it. The resolution passed by one of the state Republican Congressional District conventions asserting Wisconsin's right to secede from the Union was dumb. It was dumb from a political perspective and on the merits. We fought a civil war to resolve that question. While I suppose, given the breadth of human evil, that you can imagine circumstances in which a state would justifiably wish to secede - say Nazi or Communist totalitarians established a police state in Washington - that remote and theoretical possibility does not warrant revisiting the nature of the United States.

On the other hand, my friends on the left - and on the editorial board of this paper - might want to be careful about treating this as a Republican or "right wing" issue. After George Bush was re-elected, it was fringe Democrats who discussed the secession of the blue states

There has been a left wing secessionist movement in Vermont that has attracted the support of as much as 13% of the population there. Back in the sixties, radicals, including the widow of Malcolm X, proposed creating a black majority Republic of New Afrika in the deep South.

There has even been prior movements for secession involving Wisconsin. Some proposals to create a new state called Superior have included the northern counties of Wisconsin. Less seriously, Winneconne seceded from Wisconsin for one day in 1967 and still celebrates the event.

Nor is it right - and this is why the Sixth Congressional District action really frosts me - to use the support of a few extremists to tar legitimate concerns about federalism. The Tenth Amendment does matter. Our framers did envision a limited role for the federal government and the states do have rights - although secession is not, under almost all circumstances, one of them.

I spend a lot time fighting for federalism and I don't appreciate it when people who are supposed to be on my side run down the brand.

Cross posted at Purple Wisconsin

What if McDonald's slashed its CEO's pay?

My fellow Purple Wisconsin blogger Jennifer Epps-Addison, in advocating for an increase in the minimum wage, suggests the following:

Here's an idea. McDonald's shareholders could pay their CEO $1,000 or $2,000 an hour instead of the $9,200 an hour he currently makes, and use that money to increase the middle class and boost our economy.

How would that work? Would it really "increase the middle class?" Would it even noticeably impact the salaries of McDonald's workers?

Let's find out.

McDonald's CEO Donald Thompson made $13,751,919 in total compensation for 2012. Not all of that was cash compensation available to be "re-directed" to other employees - his salary and bonus was $ 9,560,311. The rest were stock options but let's put that aside and assume that one could either grant options to the employees or sell stock and redistribute the money. Both are dubious assumptions but let's grab as much of Mr. Thompson's pay as we can.

Ms. Epps-Addison seems to want to take around 80-90% of his compensation. To do so, we would have to suspend reality. If McDonald's reduced CEO compensation by that amount, it'd be looking for a new CEO and, like it or not, the candidate pool would be seriously affected. You can't hire Aaron Rodgers for what you pay Matt Flynn. We understand that for sports and entertainment, but the same rules apply to the market for rare executive talent.

But let's wish that problem away and redistribute most of Mr. Thompson's pay to line workers. Here the analysis gets a little tricky.

Most people who work at McDonald's don't work for McDonald's. They work for franchisees who own and operate over 80% of the chain's stores. But McDonald's exercises a great deal of control over those stores and promoting the brand and business practices that make them successful is part of Mr. Thompson's responsibilities. In any event, I am sure that Ms. Epps-Addison does not want to limit this building of the middle class and improving of the economy to less than 20% of McDonalds' employees. (People who own franchises don't make Thompson money so there would be no honey pot for them.) Let's include all folks who work at franchisees.

But McDonald's is a global company and Thompson runs the whole thing. If we are going to scoop up his pay and dole it out to others, it seems a bit chauvinistic to limit the largess to American employees. But let's indulge our inner Ugly American and ignore that problem. Let's look at only US employees.

The National Employment Law Project estimated that McDonald's and its franchisees employed 859,978 people in 2011. That's the best number I can find quickly. If we reduce the CEO's salary by 90 % and give it to each of these employees, their average annual salary increase would be ... $ 14.40.

For a full time worker, the increase in these folk's hourly wage would be about three quarters of a penny.

A few caveats.

Not all 859,978 are low wage workers; much less employed at the minimum wage. But given the nature of McDonald's business, it is fair to assume that the overwhelming majority are. And even if they aren't - even if only half have sufficiently low incomes to be entitled to a chunk of Mr. Thompson's pay - the average hourly increase would be less than two cents per hour.

Nor do all McDonald's employees work full time. There is no way to figure out the average work week, but taking into account the part time nature of the work force would increase value of the hourly increase even if it wouldn't vault these part time workers into the middle class. For example, if the average worker works half time, the hourly increase - if allocated among half of McDonald's and franchisees' total employment, might reach about three cents per hour.

I'm sure there are some other tweaks and ways in which the data can be refined. But I think you get the idea.

Cross posted at Purple Wisconsin.

Some random thoughts on a new arena

First, it is extremely difficult to make a strong arguments that taxpayers should subsidize an arena. While studies go all over the place, my sense is that it is very difficult to show that subsidized arenas generate enough measurable economic activity to yield a positive ROI. Mostly, they shift entertainment dollars that would be spend on other things.

Second, it is possible to argue that there is a net gain to the locale where a facility is located. A downtown arena may shift entertainment dollars downtown and that leaves the downtown commercially stronger than it otherwise would be. If that's so, then the reluctance of suburban counties to contribute to the cost of an arena makes sense. While people throughout the region may use the arena (and pay the price of admission when they do), the economic benefits aren't felt throughout the region. If one of the purposes of a new arena is to attract suburban dollars to downtown Milwaukee, it's hard to make a case that suburban communities should be compelled to pay for the privilege.

Third, the analysis is complicated by the fact that an arena - and the professional sports team it attracts - can result in benefits that are difficult to measure. If the primary benefits of an arena are the jobs that a facility and the events that it hosts directly benefit, then the case for compelling people to pay for it (because, after all, that's what taxation is - a compulsory taking of people's money) is weak.

But it could be that there are intangible benefits to being a "major league" city and having a vibrant downtown that go beyond the direct benefits associated with sporting events and concerts. Maybe these things make a city a more attractive location for businesses and talented people. If that's true, then the argument that this is a regional responsibility becomes more compelling.

Fourth, if an arena is indeed a powerful generator of economic benefits, we should ask ourselves why any tax money should be needed in order to make it happen. At the very least, one might want to ask why the benefited businesses should not be expected to repay the cost of public contributions to private profit.

Finally, Common Ground's announcement that it "will not support" the new arena is, at best, irrelevant and, at worst, tone deaf. It may be irrelevant because, really, who cares what Common Ground is a fairly standard left wing organization and its constituency may not be critical to the arena decision. It's not apparent to me that they have the political clout to be a player in this.

It may be tone deaf - and a mistake - because many of the people inclined to support more funding for youth athletic facilities will resent Common Ground trying to hold an arena hostage by insisting on a "poison pill" of $ 150-250 million in additional taxation to benefit part of the region. If an arena can't happen without spending on youth facilities in that amount, there will probably be no arena.

I don't know if a case can be made for that level of spending on youth athletic facilities in Milwaukee County or not. My guess is that there are more compelling uses for that money.

I understand that Common Ground believes that better youth athletic facilities are a more compelling need than an arena, although comparing the cost of an arena to a demand for a particular amount for youth facilities seems to be comparing apples to oranges. I also appreciate why it may believe that they may be more able to block funding for an arena than they would be able to obtain funding for youth athletic facilities. They are trying to leverage what they may be able to do into something that they otherwise could not.

But I suspect that they are overreaching.

Cross posted at Purple Wisconsin

Shorewood hates freedom of the press

Here’s a story that you’d think the mainstream media would take more interest in.

A number of Wisconsin communities just voted to pull your freedom of speech.

I have often heard that, if the Bill of Rights was ever put to a vote, it would never pass. We’ve just seen an example of that.

Last week, the enlightened citizens of Shorewood, Whitefish Bay and several other communities voted to repeal the freedom of the press and of the free speech rights of organizations ranging from the NAACP to the National Rifle Association,

They passed an resolution calling for the Constitution to be amended to make clear that only “natural persons” have constitutional rights.

But associations of natural persons who have incorporated to form entities such as the Milwaukee Journal Sentinel, Planned Parenthood are ACLU are not themselves natural persons. The amendment would , as a practical matter, repeal the First Amendment right of all of these groups. It would repeal the free exercise rights of organized churches.

Quite frankly, the resolution was as deep bone silly as any resolution regarding creationism or human sexuality passed by the most fundamentalist county in the deepest corner of the benighted south.

You may object that they did not mean to do this. But wouldn’t it be better not to vote for what you did not understand?

Cross posted at Purple Wisconsin.

Johnson respects victim’s desire for confidentiality

So here’s a non-story. 

“Johnson did not tell police of assault allegations three years ago.” 

While I have a great deal of respect for the reporters who worked on the story – I think they are professional and ethical – this story was not handled well. By choosing that headline (I understand that the reporters do not write the headlines) and putting this at the top of the website, the newspaper seems to have intentionally implied that Johnson did something wrong – that he knew about something that he was obligated to disclose and did not. 

That implication is flat out false. Before I explain why, let me disclose that Sen. Johnson is a client of mine in the case of Johnson v. OPM. I have nothing to do with this matter.

The facts are as follows. Ron Johnson employed a woman, who claims that she was touched indecently - sexually assaulted - by Rep. Bill Kramer. At the time, she was working in Johnson’s office and shared her experience with Johnson’s chief of staff – who subsequently shared what she had told him with the Senator. 

Having hired a lawyer, the victim decided that she did not want to press charges. She decided that she preferred to have her lawyer send a warning letter to Kramer making clear that she would come forward if he did not reform his behavior. When recent allegations against Kramer – apparently witnessed by a roomful of people – came to light, she made good on that warning. 

Johnson and his office respected this woman’s decision about how to handle the matter. They did not go to the authorities and repeat what she had told them. For those of you who aren’t lawyers, doing so could not result in charges against Kramer. What the victim told Johnson’s staffers was hearsay. It would be inadmissible in court. 

So the implication of the headline is that Johnson and his staff should have betrayed this young woman’s confidence and done what she did not want to do. 

To be sure, some might criticize her for not coming forward earlier, but I wouldn’t and no one who wasn’t there should do so either.  I am sure that she made the best judgment that she could – taking into account what happened, the likely effect of her testimony and concern for other women. 

She is an individual who was entitled to decide how she wanted to handle what happened to her without need to have the men in whom she confided try to correct her judgment and “make” her do what she did not want to do. She had to take into account a number of things that no one else could fully appreciate. Respecting her as an individual means respecting her decision. 

The article  quotes a Madison lawyer(and Democratic donor) named Fred Gants stating that employers “have a duty to  follow up” on such situations. Again, the way in which Gants’ comments were reported implies that Johnson may have some legal litigation to report this as an assault even if the victim did not want to. 

I hope that Mr. Gants did not intend to imply that. 

I spent over ten years as general counsel to an employer and had to understand what our obligations were in situations like this. I would be interested to see how any lawyer might argue that an employer has a legal duty to go to police and allege that an adult has been sexually assaulted outside of that employer’s work place by someone who does not work for the employer – particularly where the employer has no information about the assault other than the testimony of the victim and the victim won’t testify. 

In the comments to a post by Purple Wisconsin blogger Jay Miller who argues that the headline on the story is misleading, someone asked what headline would be more accurate. 

Here’s one. 

“Johnson respects victim’s desire for confidentiality.”

Cross posted at Purple Wisconsin

Blurring the lines between the unusual and the routine

Yesterday morning I woke up around 4 am - or, more accurately, my dogs woke up which basically means I'm out of bed. Two hundred pounds of golden retriever is both an immovable object and an irresistible force.

So while they were, let's say occupied, I padded down to the kitchen and surfed to the local paper.

There I saw a banner headline which reminded me, as if I needed reminding, that the most pervasive bias in journalism is in favor of the story. This is not an accusation; lawyers have their own professional biases.

"Walker blurred campaign, county government lines"

A few paragraphs down, we come to the money line - the one that is supposed to dramatically reveal some unsuspected truth. We are told that "Milwaukee County government became a virtual arm of Walker's 2010 campaign for governor."

My goodness, what did they finally find in those e-mails? I have been writing that the story is, at least from a legal perspective,  not new and not interesting. Could I have been wrong?

Of course, I could be wrong. But not this time. While, to be fair, there are some interesting tidbits in the e-mails - there always will be when one has the chance to eavesdrop on what the correspondents (wrongly) regarded as private conversations.

But there was nothing that you would not expect to see in the e-mails of political appointees working for a public official running for office.

They most decidedly do not show that County government became a virtual arm of Walker's campaign. Only a political naif could believe that and the army of reporters who contributed to the story are anything but naive. Indeed, they have written an article that's stance - its foundational assumption-  is so naive as to reveal a profound type of cynicism. If they really expect us to believe that any of this was unusual, they don't think much of us.

From a legal perspective, using the government as an "arm" of the campaign would be to use government workers and taxpayer funds to do campaign work, i.e., raising funds, buying media, organizing lit drops, etc. Other than her fundraising for a candidate other than Scott Walker, the Rindfleisch e-mails don't show that.

What it cannot mean is that political appointees of the government worried about the impact of what they were doing on the campaign and, at times, reached out to the campaign or received advice about how to  respond to political attacks or frame messages. It cannot mean that decisions were influenced by political considerations.

And yet that's all these e-mails show - with one important caveat that I'll get to later.

The group that contributed to the story is experienced and savvy. They don't believe - for one moment - that elected officials and their staff make decisions about messages and budgets and responses to daily events without regard to politics. I am sure that they are aware that politicians running for office talk to their campaign consultants about how what they are doing is affecting the campaign.

They also know - or they should - that it could be no other way. To make policy, you have to address the politics of that policy. To be an elected official - a representative of the people - you had better take into account what the people are thinking and how they'll react. That won't always look pretty, but most of us continue to believe that democracy is a lousy form of government that beats all the alternatives.

We normally don't see the details of this messiness because no one conducts a John Doe investigation into everything they do and gathers tens of thousands of e-mails that remind us - again - that politics ain't bean bag.

But what about the fact that these e-mails were "secret?" That could be significant and that's one of two reasons why I say that the story is only close to a nothing burger.

Once again, the reporters who worked on the story know that it is not unusual for public officials and their staffs to use private e-mails. They know it because I suspect they get e-mails from sources on a regular basis.

That is not, in and of itself, illegal.  Nothing in the law precludes government employees from using private e-mails to conduct official business. There are good reasons for doing so (not everything they may do during the day is official business) and not so good reasons.

Here's the not so good part. If government employees use private e-mails for official business, they may nevertheless be creating a record that, if it is retained (and there is no obligation to keep it)  is subject to production in response to an open records request. So ... if  records were not produced in response to an open records request, then we've got something to write about.

It might not be a crime, but it would be wrong.

As someone who runs an organization that makes numerous open records requests and litigates open records cases, I do not believe that Democrats or Republicans always (ever?) turn over "private' e-mails used for official business.

But they should.

I chuckled when I read e-mails suggesting that the county executive's office "slow down" responses to open records request to match the tardiness with which Mayor Barrett's office was complying with such requests. I can tell you that some of these agencies - yes, we're looking at you, MPS - are almost blackholes when it comes to record requests.

Of course - and here is where I take back some of my snarky "the Journal Sentinel is channeling Inspector Clemenceau" fun. The e-mails - well, actually only the small fraction that are good enough to write about it - are entertaining.

As any litigator can tell you, the advent of e-mail has revolutionized organizational communications and given us all big fat opportunities to embarrass ourselves.

First, they reduce to writing communications that used to be oral and were never memorialized in anyway. In 1989, if I wanted a quick word with the person in the next office, I picked up the phone or stuck my head in the door. Today, even though I can literally talk to my colleague, CJ Szafir through the wall (we office in a very old house; voices carry), I send e-mails.

Second, e-mail is not like the old interoffice memo. It is quick and it seems personal and private. This leads to candid communication which, our common assumption notwithstanding, does not always reflect what we really think or what we would say if we took thirty seconds to thinks about it. Thus, it create s treasure trove for lawyers taking discovery in litigation or political operatives making open records requests.

So it's a bit of fun, but, so far, not much else.

Cross posted at Purple Wisconsin.

Sanctimony, Part I

I suppose that there is no percentage in this for me but I can't help myself. Here are two bits of silliness in the news.

John Schultze, a lawyer with the Department of Transportation has, essentially, been fired because a few years ago he sent around a joke press release touting legalized prostitution as an economic development idea for Wisconsin. Among the benefits of the plan would be job opportunities for W-2 recipients. The release included the undoubtedly offensive suggestion that men who frequent prostitutes probably prefer transsexuals to transvestites.

Now, I certainly understand that prostitution is frequently exploitation of poor women and that's not funny. I suppose one might say that the the bit about transsexuals was "hetero-normative" and we certainly can't have that.

On the other hand, humor often works by being transgressive in the sense that it flips our normal assumptions about things and treats its subject differently than we normally would. Doing so doesn't mean that the humorist endorses what he jokes about.  In this case, the joke was on the idea that someone would think prostitution in the Dells was a good idea.

I have never met John Schultze and wouldn't know him if he came into my office and started telling me the one about the farmer's daughter and the traveling salesman. The joke was executed in a tacky way and not very funny. It was, as we say these days, "NSFW" and, I assume, a violation of the terms of use of the state e-mail policy.

It was all of that and an offense and against good comedic discernment to boot. But was it a firing offense? Have we really become so incapable of exercising judgment about the multiplying third rails of public conversation that we have to destroy everyone who blunders on to something that makes someone - or at least officially protected someones - uncomfortable ? Have our politicians become so focus grouped that they can't stand up for the decent thing to do? No need to answer the last one.

I don't think the joke he forwarded was very funny and I understand that sending it around at work was not the best thing to do. He deserved a reprimand.

But fire the guy? Give me a break.

Cross posted at Purple Wisconsin

"I see guilty people."

I have written columns on the legal issues presented - or more accurately not presented - by the closed Doe investigation of former County Executive Scott Walker's office and the recent release of certain documents gathered as part of that investigation.

Of course, I don't expect Democratic partisans to stop. The latest trope is to hammer Walker for not wanting to answer an endless string of questions. He should, they think, be willing to linger over material that was insufficient for even a District Attorney who embarked on a three year proctological examination of Walker's office to issue charges.

Walker's desire to move on is supposed to be a Jedi mind trick - perhaps learned from President Obama ("this is not the resurgent al-Qaeda you were looking for").

I won't comment on the Governor's media strategy. But I think what's happening here is more akin to people who see the Virgin Mary in an oil stain. Walker's opponents see what they want to see.

What none of these folks ever do is point to anything that might conceivably be a crime or even, for that matter, wrong. Although the authors acknowledged it was not a crime, Sunday's Journal Sentinel tried this one: A publication criticized a Walker plan to privatize the airport. Walker asked his staffers to get out a response to the criticism. Within thirty minutes, they did.

Oh the horror! Oh the humanity!

To repeat. It is not a crime for public officials and their employees to put out messages that promote the official and her policies. It is not a crime even if how they do it is informed by a campaign consultant. It is not even a crime for such people to sometimes attend to campaign matters during the day although they may never raise funds during established working hours or from a public building and it may be a violation of workplace policy to use government resources (like a computer or e-mail system to do so). 

It is also not illegal to have a "secret e-mail" system or private e-mail account. Elected official and their staff often have them. They are usually called smart phones and g-mail. The real question is how they are used.  If someone sits in a government office taking in a government salary while raising money, setting up campaign rallies (as opposed to scheduling the boss), doing media buys and conducting opposition research unrelated to some policy objective, then we have a problem (although even then, the applicability of felony misconduct statutes may be questionable as it was in the caucus scandal.)

So if there were evidence of Walker instructing his people to do that, then maybe there's something to talk about it. But, near as I can tell, all we have - after one of the most thorough investigations of any politician in the history of Wisconsin - is two people engaged in fundraising from a county building without any connection of their activities to Walker.

Here's a thought experiment. Human beings as they are, if we took three years and scoured the laundry of Tom Barrett, Jim Doyle or Tammy Baldwin, do you really think we wouldn't find as much?

If you don't think so, I want you to meet my uncle. He just stole sixteen million dollars from the Kenyan government and would like to park it in your bank account.

Cross posted at Purple Wisconsin

The real partisan abuse of the e-mail dump

I am writing a series of columns on the recent release of certain e-mails acquired as part of the John Doe investigation. But I feel compelled to respond to a post by Alex Runner here at Purple Wisconsin. I like Alex. He's a smart guy and a good writer. But, in this instance,  he's got it exactly backward. It's folks who are exploiting the Doe to kick dirt at the Governor that are putting partisanship over the rule of law.

Alex argues that, while he hasn't reviewed the e-mails, he's sure that they showed Scott Walker reckless disregarded - or was ignorant of - the law against "campaign work" on the taxpayer's dime. In this, he has plenty of Democratic company. The release of this e-mails - the most significant of which have been public for years - has raised renewed - and irresponsible - accusations.

But all of those "outraged" might well pause and considered the following.

All of the information in these e-mails was available to prosecutors who, for three years, appear to have been moving the earth itself to find wrongdoing in Walker's office.

Yet, although these prosecutors had access to all the information that Alex hasn't read but which he is certain shows Walker is a crook, they didn't charge him.

Why might that be?

The reason, of course, is that no crime was committed. Let me explain why.

First, we must be precise. There is no law that explicitly says something called "campaign work" cannot be done by government workers in the course of their duties. There is a statute explicitly prohibiting raising campaign funds in government buildings and prohibiting a person from soliciting or receiving a contribution or service for political purposes from any officer or employee of a political subdivision during established working hours or while that person is engaged in his or her official duties. Violating this law is a misdemeanor.

But before you get carried away, this statute cannot be applied to any activity that might influence an election because political appointees are always - and should be - doing things to sell their bosses and their policies. More on that later.

There is also a statute that says that it is unlawful for a public officer or employee to exercise a discretionary power in a manner inconsistent with the duties of his or her office in order to obtain a dishonest advantage for the officer or employee or another person. A violation of this one is a felony and this statute is what was used in the caucus scandals and to bump Kelly Rindfleisch's misdemeanor fundraising to a felony.

The theory for applying this statute to at least certain kinds of campaign activity is that it is "inconsistent" with the duties of a public employee to be working on a campaign while on the job and that doing so confers a "dishonest" advantage on the candidate.

Now whether this statute can ever be interpreted this way is not, as Alex would have it, a closed question. In the caucus scandals, legislative leaders argue that to stretch the law to apply to political work long done by staffers on both sides of the aisle would raise constitutional concerns such as due process and fair notice, i.e., it was not possible to know what activity is criminal.

The Court of Appeals rejected that argument but the state Supreme Court never resolved the issue. Three justices recused themselves so the Court sat four. Two Justices agreed with the Court of Appeals but two disagreed and would have reversed. Since the Court split, the Court of Appeals decision was left standing. It is, to be sure, precedent but, to this day, the matter has not been addressed by the Supreme Court.

But even if it is not the application of these statutes to some forms of political activity is not a "gray area," applying them to the activity revealed by these e-mails would be. Indeed, it would seem to be clearly wrong.

This, I suspect, is why charges were not brought.  The activity at issue here appears to not to have been the running of a campaign by government workers, but the coordination of messaging in a way that would promote then County Executive Walker and his policies.

But political appointees of elected officials are supposed to promote their bosses and his or her policies. That's not just a concession to an unfortunate reality (elected officials are political animals) but the only way that anything can ever get done. If it were unlawful for policy makers to take into account the political ramifications of official actions and messaging - even to seek advice from political consultants working on a campaign - or to provide information to those folks to tell the story of their boss and her work, we'd soon have to expand the prisons.

Indeed, we'd have to jail elected officials who campaign for themselves or another during the work day or who trade on their status as an elected official for "political purposes." We'd have to prosecute those who maintain elected officials' websites and churn out their press releases. If a candidate facing election ever asks her campaign consultant how to manage a crisis or craft a message about some official action, book her!

I have written before about the problems presented by an aggressive application of the criminal law to political actors behaving politically. What happened here was not clearly inconsistent with the official duty of those undertaking it.

But there is yet another problem. When it comes to political offenses, appearances matter. It is ultimately unsustainable for law enforcement to spend three years scouring the activities of one side while not even asking a question of another. To do so would be selective prosecution. While it may not be a defense to say that "every one does it" and a person accused of a crime can't generally avoid prosecution by pointing to another who did the same thing and wasn't charged, this is a different matter.

The problem here is that it is reasonable to ask whether the decision to investigate was based upon the political speech and association of those chosen for scrutiny. Treating people differently based on their political viewpoint raises concerns under the First and Fourteenth Amendments.

Alex asserts that "Democrats" are more careful about this because some of them have gone to jail for it. So, of course, have Republicans. To say otherwise would be news to Steve Foti.

But we don't know that Democrats are more careful and I would be shocked if political appointees of Democratic politicians don't provide information to campaign staff and don't receive information from campaign staff in the course of their duties. Indeed, some of the examples of Democratic activity left unexamined by prosecutors set forth in Club for Growth's recent suit against certain prosecutors suggests that Democrats are no more "careful" than their Republican counterparts. You can't say that there has not been similar activities on the part of Democrats until you spend three years sorting through their lives.

Let me be clear. I am not suggesting that there be criminal investigations of Democrats. I am suggesting that the criminal law not be used as a political weapon. Whatever one thinks of these Doe investigations, the District Attorney's office was right not to bring charges and partisans are wrong to cry "criminal" when there has been no crime.

Alex Runner doesn't think that partisanship should trump the rule of law.

Precisely.

Cross posted at Purple Wisconsin.

Living wage ordinance may be illegal

My column at Right Wisconsin questioning the legality of Milwaukee County's "living wage" ordinance - or as someone recently called it the the "Living While Unemployed wage" can be found here, albeit behind a pay wall.

The shorter version is this. The new ordinance, which is a bad idea in many ways, requires that no one working for a county supplier or contractor should be paid less than the specified wage. It's indecent, they say, and, of course, by ipse dixit, the majordomos on the Milwaukee County Board of Supervisors have decreed that each and everyone of those contractors and suppliers can afford it.

But, if one of those vendors and suppliers wants to enter into a collective bargaining agreement with a union - you know, they kind that provides political support to the supervisors who comprise the board majority - then this absolutely essential and minimally decent living wage can be "waived."

This may be illegal for a number of reasons - one of them being that it is preempted by the National Labor Relations Act. Courts have held that it does not permit local ordinances that interfere with decisions - like whether to unionize - that the Act leaves to market forces. While the county can impose certain requirements as a market participant to ensure the quality of goods and services or to obtain the best price, that's not what's happening here. This is a gift to the organizing efforts of SEIU and other friendly unions.

There, as far as I know, no cases which definitively resolve the issue, but if the County Executive's announced veto is overrriden, we may find out.

Cross posted at Purple Wisconsin

No, MTEA, they aren't "your schools."

In yesterday's Milwaukee Journal Sentinel, Alan Borsuk reflects on the new slogan of MTEA, the MPS' teacher's union.

Here's the slogan:

Our Schools! Our Solutions!

This is precisely what the union should not be saying. Part of the problem with MPS has always been that the MTEA really did regard the schools as "theirs" and only the solutions that "they" countenance could be permitted - all of which seemed to have the fortuitous side benefits of serving the organization and its controlling members. No choice and only a few non-union charters. No merit pay. Seniority. No effective way of getting rid of poor of teachers. No fiscal sanity.

"Our" schools, said the union. "Our" solutions.

Our way or no way.

Unfortunately, given the politics of the city of Milwaukee, the school board generally went along.

The result is not only an ineffective system but schools on the verge of financial collapse. It has resulted in unparalleled flight of poor minority kids to choice schools and an exodus of the middle class from what is otherwise a very pleasant city.

The union ought to recognize that the schools aren't "theirs" and the whatever solutions may exist have passed them by. It ought to understand that it needs to "rethink" not only schools, but itself.

Instead, it doubles down.

Cross posted at Purple Wisconsin.

Minimum wage advocates skirt difficult questions.

The minimum wage is in the news again.  There is a movement on the left to increase in the minimum wage to $ 15/hr.  I am aware of no serious people who believe that is possible without serious negative consequences. While it is certainly true that even $15/hr does not yield a grand income, taking salaries to that level would wipe out much of the operating profit of McDonald's or other fast food chains. While some workers would earn more money (and the price of a Big Mac for everyone would rise), it seems inevitable that there would be substantial job loss as operators cut staff and automation becomes more attractive. We could expect to see a lot fewer new stores.



But what of a smaller increase in the minimum wage ? The Journal Sentinel editorial board endorsed an increase to $ 10, saying that it was not "buying" standard economic doctrine that minimum wage can increases reduce employment.


Let's take a closer look at why a minimum wage increase might not be an unalloyed good for the persons it is intended to help.



Minimum wage increases increase the cost of an employee. In response, one - or a combination - of three things must happen.  The employer's profits must be decreased, its prices must rise or it must reduce its labor costs, by cutting staff, reducing hours or somehow making the same number of workers do more. All of these latter three strategies involve less work for low income workers. (One might speculate that it is possible that an increase will somehow transform the value of a minimum wage worker by increasing the value of such workers - by, in effect, creating a new product - but this requires assuming that minimum wage employers know less than the  government about how to maximize productivity in their own business; an unlikely proposition.)



So ... reduced employment, higher prices or lower profits. That a meaningful minimum wage increase will only cause the latter two effects is extremely unlikely. Excess profits, i.e., returns that are greater than that needed to attract the required capital to a business, tend to be eroded over time by new entrants into the business.  To be sure, barriers to entry and brand loyalty and value can impede that process. But it's unlikely that industries with a great many minimum wage workers are earning above market profits that can readily be sacrificed. While Wal-Mart and McDonalds make a lot of money in the aggregate, their margins are slim.  On a store by store basis, there isn't much profit to erode.



The notion that those who must pay higher wages can simply raise prices assumes that the demand for whatever they sell is not price sensitive (or, as we learned to say in Economics 101, that demand for the product is "inelastic.") But that will rarely be the case. Again, the ability to raise prices may be enhanced by the fact that all competitors must pay the new minimum, but there are very few circumstances in which one can simply raise the price of something and not sell less of it.  This is particularly so where work can be outsourced to regions not subject to American minimum wage laws.



And even where a business cannot substitute foreign workers, it can replace them with automation. Indeed, low skill workers are the most vulnerable to being replaced by automation.  If employing a cashier becomes more expensive, the case for substituting an automated check out station becomes more attractive.



Of course, some workers may benefit from the minimum wage increase but others will be harmed. To the extent that the cost of those benefits are not entirely borne by fellow workers who will lose their jobs, they are unlikely to be visited solely upon the richies who employ them but also by the people - often themselves low income - who buy the goods and services that the affected businesses offer.



So the real question for minimum wage advocates - putting aside the moral and liberty concerns associated with forbidding people from entering into whatever voluntary arrangements they might choose - is whether the value to those who keep their jobs outweighs the harm caused to those who lose them - or are never hired in the first place.



That's an empirical question. As is so often the case in economics, studies go every which way largely dependent on the assumptions with which they begin. It strikes me as highly implausible that a 40% increase in the minimum wage (as an increase to $10 would be) will not have significant employment impacts. Advocates for an increase often note that  minimum wages tended to be higher in the 60s and 70s.  For some of that period, unemployment was low, although the real question is what it would have been had the minimum wage been lower.


More fundamentally, the world was different then, marked by a variety of protectionist and restrictive laws and mores regarding trade, immigration and discrimination on the basis of race and sex that are no longer in place. The ability to replace low income workers with technology is dramatically different.



There are two arguments typically advanced in support of minimum wage increases that don't help us answer that question. The first is that the income generated by the current minimum wage is not "enough."



It is certainly not much. But wages are not determined by what is "enough." They are limited by what an employer can pay, i.e., the value generated by an employee and what it must pay, i.e, the wage required to attract the labor market (i.e., what must you pay to attract the employees that you need.) They are not determined by whether or not the wage paid is sufficient to support a particular standard of living.  What I want from my employer does not determine his or her ability or willingness to pay it.



Saying that you don't like what the market "says" about the value of a particular job doesn't, as we have seen, mean that you can simply change that value by passing a law. To say that someone "should" be paid more does not make his or her employer able or willing to pay it.



The second is rumination about the "1%."



It is true that, over the past thirty years or so, that the earnings of the very wealthy have increased far more quickly that those of the rest of us (although the rate of increase of the latter is often, for a variety of reasons, substantially understated). But that phenomenon - which is global and, therefore, unlikely to be a product of domestic policies -  has not been caused by minimum wage laws. The market for CEOs or baseball players is distinct from the market for baristas and cashiers.  And, even if you could compel McDonald's CEO to work for free and redistribute his salary to cooks and counter workers, the impact would be negligible.  If the income earned by the 1% is a problem, it is largely a different one than the earnings of low paid employees.


Cross posted at Purple Wisconsin.

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.