Tuesday, July 29, 2008

Play within yourselves

A nut job walks into a Unitarian church and starts shooting people. He says that it is because he hates liberals and gays. The demented often justify their insanity in terms that they think the rest of us will understand.

It disappoints me that two left bloggers who I think are smart enough to know better want to imply that this his was a pathology flowing from what they think is conservative ideology.

Jim Rowen notes, but is "not surprised" that the shooter had a copy of one of Michael Savage's books and that we need to "hope interrogators find out what his motivations were and who influenced him."

Why is that? If a crazy man thinks that the voices in his head come from Michael Savage, does that mean we censor Savage? The idiots who blew up Sterling Hall were influenced by the claims of the New Left (including, I suspect, Jim Rowen who, from what I know of him, would not have wanted that), should we have shut them down? In the leading case on hate crime penalty enhancers, the defendant was apparently motivated to attack whites because he had just seen Mississippi Burning. Was that an objectionable film?

This is not to defend Savage. From what I know of him, he confuses conservatism with opposition to organized interest groups that oppose conservative policies. He may be a bright guy, but he's decided to live (as has Michael Moore and whatever is left of Air America) on catering to the worst of his side of the aisle. As I have blogged here before, Charlie Sykes is on the public record saying that he wishes TMJ would not carry Savage's show. Still, I don't think that even Savage carries the weight for nuts that shoot people.

Tom Foley goes on to say that he does not want to be on the team that includes the Tennessee shooter. What team exactly is that? Homicidal maniacs? From what I know of Tom, I would not expect to find him or anyone else I know on that team. Does Tom not want to be on the team that "includes" Lee Harvey Oswald, Bill Ayers and a host of Weather others, the Symbionese Liberation Army, Che Guevara(they still sell his t-shirts), those who indulge in Bush assassination chic and so on and so on.

Too much, guys. Too much.

Thinking harder about spending on colleges and prisons

Michael Rosen claims that spending on prisons has crowded out spending on higher education, implying that the latter is now (or perhaps always was) inadequate.

There is no doubt that we spend a lot more on prisons these days and I agree that we ought to take a good hard look at sentencing and parole practices. Rosen argues that the "multiplier" effect is less for spending on prisons than it is for higher education. While I am skeptical about claims of "multiplier effects," I'll concede that point. It sounds right.

But the value of spending on prison is not the invigoration of the local economy in Waupun. It is preventing crime. People in jail don't commit them. To truly assess the economic value of prison spending, you would have to compare it to the economic losses that it prevents. I've seen studies that suggest that, on this basis, increased prison spending has been justified but I am not an expert and don't claim to know. As a limited-government type, I think that all public expenditures should be rigorously scrutinized and prisons are no different.

What about higher education? Let's begin with a statement of self interest. I work for a university. Granted it's private, but I am still rather fond of spending on higher education.

Rosen claims that we have reduced state subsidies to higher education by 6% over the past twenty years. (This is in inflation adjusted dollars; nominal spending is higher.) Is that a problem? It's not self evidently one. There was a time when our state university system was larger than any other outside New York or California. While I don't know if this is still the case, we continue to have one of the largest systems in the country, so this decline was from an already high level of spending. That doesn't prove it was a good idea, but it provides perspective.

What is problematic, Rosen says, is that we have shifted the burden to students and their families, noting that, over the past ten years, tuition for the WTCS has increased by 54.6% and UW-Madison by over 80%, (While these are apparently increases in nominal dollars (Rosen doesn't say), we know that inflation over that period would only account for about a 30% increase.)

We can argue about whether shifting the cost of higher education to those who receive it is a bad thing. There is an increasing earnings premium for higher education (much higher than it was when I went to college - one of the reasons for increasing income disparity) and it may not be unreasonable to ask those who will enjoy that premium to bear more of the cost. This is the rationale for student loans. One borrows against expected future income. While I don't believe that monetary benefits are the sole measure of a college - or even law school - education (there are circumstances in which I think that substantial subsidy, although not necessarily from the government, is a good thing), we should pause a bit over why and under what circumstances the public at large ought to subsidize education that may be very lucrative to the educated.

But these increases, for good or bad, can't be explained by a 6% real reduction in state subsidies. What has happened is that the universities and colleges have substantially increased their spending in real terms and the cost has been, increasingly, recouped by higher tuition.

Rosen suggests that this is the reason that the number of students whose family income is in the bottom quintile has dropped from 14.5% to 11%. That could be, but I can think of a lot of other reasons for that and, given the widespread availability of financial aid and loans, the inference that he wants to draw is not obvious.

Sunday, July 27, 2008

Late night Sunday classics

A reader tells me to lay off the Packers and go back to the Sunday music videos. I am in article finishing mode right now so this is way late. But I do it anyway.

In response to the great cultural questions posed to my generation, my answers have been "great taste," "Mary Ann," "the Stones." But ... one of my favorite Beatles songs is the underappreciated "Hey Bulldog." If I pushed the politics (Bulldog as a reference to England, purpose drowned in cynicism), I could be critical, but I like the sound and paradox of it.

And, since we are on the Beatles, here they are in the Hollywood Bowl almost 44 years ago.

The Concordia Rams

On Friday afternoon, the Reddess and I went over to Concordia (we live about a mile and a half down the road) to watch the Rams practice. It was the first of training camp and mostly boring. The offense and defense walked through very basic plays. There was a drill, however, that pitted receivers against DBs in some quick patterns. You could tell there were some jobs on the line. That was fun to watch.

Our local watering hole - the Highland House - has gone all in on the Rams presence and, when we stopped in for a quick margarita and quesadilla before taking in The Dark Knight, there were some Rams fans there - notwithstanding that practice had not quite ended.

I suspect that we'll go back a few times - certainly for the scrimmage. We all ought to pay attention to Concordia. It may grow into a tremendous community asset.

More on The Dark Knight later.

Sick pay referendum is not about "mean" v. "nice."

The Milwaukee sick pay referendum, as I understand, it would require all businesses within the city to offer one hour of paid sick leave for every thirty hours worked - or, and I'm relying on someone else's calculation, 9 days each year for a full time employee.

Who could be against such a proposal? I have never worked for an employer that did not provide more paid leave than that. Dan Cody says, that if you can't provide that much paid leave, your business has big problems. (Precisely, better to die.) My former community columnist colleague Janice Eisen apparently believes that opponents of the measure believe that workers without such leave "deserve" their fate.

But these comments reflect a certain economic ignorance. "Deserve" has nothing to with it. Proponents of the measure want to argue that businesses that do not provide such leave are greedy or mean and I am sure that there are businesses who could afford to, and probably profit by, the provision of such leave and yet fail to provide it. Humans are fallible.

But I doubt that they are the majority of such businesses for a variety of reasons, the most important of which is that paid sick leave is a fairly standard benefit in both the private and public sectors. There is a reason for that. In most circumstances, it makes sense. Failing to offer it is going to significantly impair a business' ability to attract good employees. (I refuse to even keep track of my corporate assistant's sick leave and vacation - although she does. I care only that she gets the job done and she does.)

But that doesn't mean that it always makes sense. It seems most likely that those who do not offer it are mostly marginal businesses employing marginal employees. For employers who do not offer paid leave, the measure increases labor costs by 3.3%Believe it or not, there are some labor intensive businesses for which that can spell the difference between profit or loss. And there are some employees for whom that amount spells the difference between a job and unemployment.

Supporters of the law will argue that this is not always the case and I can't dispute that. Some people would benefit from such a referendum. But some businesses will fail and some people will go without jobs.

The net impact is an empirical question. The measure is most likely to be a net benefit when there is a glut of low income workers for which there are not technological substitutes (e.g., self checkout stations) such that employers are earning huge profit on low income labor. I don't think that describes the Milwaukee economy - at least it doesn't describe it in the absence of large numbers of, pick your word, illegal or undocumented workers - most of whom won't benefit from the referendum.

The unbearable lightness of Favre

So much of the local media is supporting Ted Thompson's treatment of Brett Favre. I think it's profoundly mistaken. I begin with the proposition that whether Favre has treated the Packers "fairly" or has acted in a rational manner is wholly irrelevant. His job was never guaranteed by - nor is it entirely dependent upon - some judgment as to whether his behavior or that of Packers' management was more reasonable.

The question - the only one - is whether the Packers are better today with Favre at quarterback. The team - at least with Favre - is a Super Bowl contender and you don't throw that away for the "future."

So there are three possible justifications for Thompson's position. The first - and most easily disposed of - would be a belief that Rodgers is a better quarterback today. He may be, but no rational person could think so. He hasn't played an entire game in the NFL. While he moved the team against the Cowboys after Favre was hurt, he showed an inability to finish drives. He hasn't, if I recall correctly, played more than three consecutive quarters in the NFL without being hurt - has, in fact, never had any significant playing time without being hurt. None of this means that he can't be a very good quarterback, but the notion that the Packers are better in 2008 with Rodgers than they are with Favre is just nuts.

I understand that Favre got very cold in the NFC championship game. (I was there.) But the real problem in that game was the complete absence of a running game and Plaxico Burress' domination of Al Harris. Change either one of those and the game wouldn't have come down to an interception in overtime.

But maybe it's not so crazy if Favre isn't really ready to play. Maybe his Hamlet act has convinced Thompson that he doesn't want it anymore. But it seems to me that he has - after starting so many games in a row and playing so well at such an advanced age - earned a presumption that he will be ready to play. Not as a reward, but as a recognition that past practice supports this particular projection of future performance. If he can't answer the bell, Rodgers is ready - or at least Thompson thinks so.

Maybe Thompson thinks that Favre's grandstanding will hurt team morale. There are reports that Favre became bigger than the team during the (not unsuccessful) Sherman era - but, if he did, it seems that the larger problem in the Packers failure to make it to an NFC title game or the Super Bowl - was the absence of a supporting cast. Favre didn't fail to stop the Eagles on 4th & 26. It was the entire team that got dominated by the Falcons and Vikings.

Thompson obviously has great ability in identifying good football players - particularly among the less celebrated. (His first round choices - with the exception of A.J. Hawk - have been uninspired.) That's a great talent but you also have to know how to deal with stars. His bullheadedness about what Favre should and should not have done has backed him in a corner. If Favre plays poorly elsewhere, he'll be ok. If Favre plays well elsewhere or, and this is the cruel part, doesn't play at all, then Rodgers needs to have a Pro Bowl season and the Packers have to, at least, win the division. There is no way that his handling of this situation doesn't place Rodgers under tremendous pressure.

Maybe Aaron is up to that. I'm a Packers fan and I hope so. But it's a bizarre - and unnecessary gamble - on Thompson's part.

Friday, July 25, 2008

The First Letter of Barack to the Germans

Barack, being called to redeem the world by the will of God and our brother Chris Matthews, to the ones that have awaited me in the Tiergarten that is in the city of Berlin, called by me to be more than they have been and to arise from their indifferent lives, together with all those in every place yearning to be My Ones and to learn of what change they should believe in,

My peace and that of your mother Michelle be upon you, this is the moment and Ja, k├Ânnen wir.

Obama gave a pretty - although not an extraordinary speech - in Berlin and it wasn't entirely devoid of content. Certainly engagement with our European allies is a good thing, but that is hardly a controversial or novel point.

But the comparisons with speeches at the Brandenburg Gate by John Kennedy and Ronald Reagan are overwrought. Kennedy and Reagan went to Berlin to demonstrate resolve against an existential threat. They spoke difficult words that, particularly in the case of Reagan, were novel and unpopular.

Where is that in Obama's speech. Perhaps it is in his over the top invocation of global warming. Is that to be Obama's crusade? If so, I hope that, should he win, he adopts a more realistic view of both the nature of the threat and what should be done about it.

Is it, as he put it, "to dismantle the networks that have struck in Madrid and Amman; in London and Bali; in Washington and New York." Maybe - but Barack Obama - and, for that matter, most of Europe - have spent more energy on what they will not do than what they will.

JFK and Reagan spoke hard words of truth to power. Obama gave a campaign speech with the typical laundry list of talking points immersed in pettifoggery. It appears that reviews are mixed. They should be.

Thursday, July 24, 2008

Trains as a matter of faith

I don't regard rail as a matter of theology. Truth be told, I like trains. If I am going to Chicago and can take the Hiawatha, I do. There are tracks about a half mile from my house. It would be great if I could catch a train and take it downtown (those tracks don't go there). But I understand that it's not going to happen if it's not economically viable. New York and DC and London and Boston have wonderful subway systems, but it'd be hard to make the numbers work for such a system here.

In some sense, rail is an antiquated technology. New and successful technologies tend to facilitate choice and accommodate what users want to do. Rail moves people along fixed points. If, as with the New York subway, large numbers of people want to move between these points, it works. If they don't, it works less well.

There are folks, like my former Backstory colleague Jim Rowen, who understand that and think it's a good thing. We need, in their view, to concentrate people. Making it harder to move where they will (the road to Sprawlsville) helps accomplish that.

This op-ed in the Wisconsin State Journal argues for a high speed Midwestern rail network. Such a system, it argues, would be great for every one. "It is a win-win-win: good for business, good for jobs and good for the environment." The absence of such a system "constrains our regional economy."

If that were so, then we could afford to build that system. If we - all of us - would be better off with some other rail system than what we have, then it would make sense for us to build it. But the op-ed acknowledges that this is not so:

Wisconsin is leading the charge as nine state transportation departments have committed to build a Midwest high-speed rail network. But the states can 't do it alone. A strong federal-state funding partnership is needed to develop high-speed passenger rail.

This says that we would like such a system but it won't pay for itself, so we need a federal subsidy. If that's so, then how is it a win-win-win? How much can the lack of more trains actually be holding back the regional economy. One would think that, if it was, it would be worth it for the region to pay for them.

In fact, the subsidy may not be to the Midwest, but to Madison. You can take the train from Milwaukee to Chicago. You can take the train from Milwaukee to the Cities. You can go to St. Louis and Indianapolis and Cleveland and Detroit and Cinncinati and all sorts of other places. Certainly the train could be faster (travel times seem to be about what it would take to drive there without traffic), but it will never be as fast as travel by air.

Colorado can't exclude pervasively sectarian schools from generally available scholarships

The Tenth Circuit decided an interesting religious liberty case yesterday. Colorado has a statute that allows students to use state scholarships at any accredited university in the state - private or public, religious or secular - as long as the school is not "pervasively sectarian." In Colorado Christian University v. Weaver, a Christian university challenged the exclusion and the a unanimous panel of the Tenth Circuit found it was in violation of the First Amendment.

At the time that Colorado's law was passed, it was thought that the use of public scholarship money at pervasively sectarian institutions would violate the Establishment Clause. The Supreme Court has since made clear that this is not the case. Everyone in the case agreed that Colorado could, if it wanted to, permit the use of public scholarship money at a pervasively sectarian school.

But Colorado has not eliminated - and continues to enforce - the pervasively sectarian exclusion. We know that it could permit scholarships for students at pervasively sectarian. Is it required to?

Colorado argued that it was not, relying on a recent Supreme Court decision, Locke v. Davey, that held that, while the state of Washington could provide scholarships for the study of devotional theology, it is not required to and this could carve out an exception for that course of study and exclude it from a general scholarship program.

The Tenth Circuit disagreed. Colorado's exclusion violates the First Amendment because it discriminates among religions and that the basis upon which it does so (determining what is pervasively sectarian) unconstitutionally entangles government with religion.

I think that the Court got it right. What's interesting about the case is its suggestion of potential limitations on Locke which was a bit of an outlier from a trend that saw the Court increasingly requiring that comparable religious and secular activities be treated in the same way. Colorado Christian's limitation allowed the use of public money at pervasively sectarian schools but its reasoning may encourage states to adopt broad prohibitions of all funding of religious uses.

For those of us - like me - who believe that Locke was wrongly decided, we are still searching for a limiting reading of the case.

The decision in Colorado Christian was written by Michael McConnell who was a very prominent religious clause scholar prior to his appointment to the bench. He was on the short list for the Supreme Court at the time of the O'Conner and Rehnquist vacancies and should be again in a McCain administration.

Wednesday, July 23, 2008

Corporate dollars for Obama

One of the reasons that campaign finance restrictions tend to create more problems than they solve is that there is always an exemption for the activities of media corporations and they are rarely neutral reporters of events. In the old days, there were Democrat and Republican and Whig and whatever newspapers. At least they were honest.

No rational person can deny that the mainstream media is in the tank for Barack Obama. It has always seemed indisputable to me that the major news outlets, with the exception of Fox, have a liberal Democratic bias. (Note: this is not the same as a far left bias. They are Democrats and not Greens.)It's Obamamania stems from that, but also from the atmospherics. Particularly for people informed by left-liberal orthodoxies, the Obama story is more interesting than McCain's (race trumps military heroism) and, in our celebrity and youth obsessed culture, Obama is Brad Pitt and McCain is Hugh Beaumont.

That bias can, of course, be overcome by other concerns, such as the search for ratings or even sensitivity to accusations of bias. So the Obama lovefest may not continue. But everyone sending anchors overseas with Obama? Time talking about Berlin awaiting the new JFK? Newsweek's progressively hagiographic Obama covers? The New York Times publishing an Obama op-ed and refusing to give McCain a response? (For all you conservative Ricardo Pimentel critics, there is no way - none - that he'd let something like that happen.)

In the political world, there is a term for getting your message in news outlets and op-ed pages. It's called "earned media." While "free media" might be a better term, the idea is that you generate news or interesting commentary that compels the media to cover it. That's an accurate description if media folks are acting like journalists and not participants in the narrative.

Right now, the major networks and media outlets should be embarrassed. I almost guarantee that, if Obama wins, there will be some oh so sweet handwringing of "how we strayed from neutrality (and kicked a**!) sometime next year.

Obama was for the surge so he opposed it?

The other day, as I walked through our family room, Barack Obama came on the 52 inch flat screen in high def clarity. After I rose from my genuflection, I tried to understand what His Nibs is saying about the now universally acclaimed surge strategy in Iraq.

I think he said that it was obvious that it would work (a no brainer; no credit due McCain on that)but that he opposed it - and still would have opposed it - because he disagreed with the Bush administration.

When His disciples heard this, many of them said, This is a hard and difficult and strange saying. Who can stand to hear it?

What does it mean? I knew it would work but I didn't want it to? I knew it would work but I don't think that success in Iraq is important? I knew it would work but we still can't win in Iraq so we should leave without regard to the situation on the ground?

The lefty blogs are all a twitter about a statement by John McCain that seems to suggest that the Anbar Awakening (which they want to define as a tribal accord) happened after the surge. It didn't. But what McCain seems to be saying is that the surge created the space for the Sunni turn against al-Qaeda to be successful.

McCain supported the surge. Obama opposed it. If, in fact, it is now possible to withdraw most American troops from Iraq without the disastrous consequences that the Irag Study Group thought were inevitable and that Obama was prepared to accept (and maybe even with sixteen months of the inauguration of the next President), it is because of a policy that McCain supported and Obama opposed. Obama would have let Iraq go to hell in a hand basket, arguing that there was no alternative. No, we can't, he would have said.

But we did.

Jonah Goldberg argues that this doesn't matter. The surge has been so successful that it takes Iraq off the table as an issue and this hurts McCain because his natural advantage is on foreign policy and national security. The American people, he argues, already believe that McCain is better suited to be commander-in-chief. McCain's challenge, according to Jonah, is to convince Americans that is what they need.

But history tells us that, when it comes to the Presidency, that is precisely what we need.

Tuesday, July 22, 2008

Blessed are the cheesemakers

The indispensable Religion Clause Blog reports that a Welsh town called Aberystwyth has elected Sue Jones-Davis, the actress who played Judith Iscariot in the Life of Brian as its mayor. The town, like a number of others in Wales, banned the movie as blasphempous shortly after its release.

Who knew? Once, when guest preaching at St. Paul's, I referred to the movie - positively - in a sermon. It was the bit about the People's Front of Judea and the Judean People's Front. During the early service (a small group in our Morning Chapel), I noticed that one of the folks laughing most heartily was a rather conservative and very devout Catholic professor of theology. After the service, his wife told me that he really loves that movie.

As God wants him to.

What's the matter with Obama?

There is irony in the fact that one of Obama's problems has been - and will continue to be - the notion that he is an elitist. How can this be? He is black; a member of a racial group historically subject to pervasive discrimination. William Deresiewicz, in an American Scholar piece entitled The Disadvantages of An Elite Education is concerned with other things, but says something that is instructive on this:

The first disadvantage of an elite education . . . is that it makes you incapable of talking to people who aren’t like you. Elite schools pride themselves on their diversity, but that diversity is almost entirely a matter of ethnicity and race. With respect to class, these schools are largely—indeed increasingly—homogeneous. Visit any elite campus in our great nation and you can thrill to the heartwarming spectacle of the children of white businesspeople and professionals studying and playing alongside the children of black, Asian, and Latino businesspeople and professionals. At the same time, because these schools tend to cultivate liberal attitudes, they leave their students in the paradoxical position of wanting to advocate on behalf of the working class while being unable to hold a simple conversation with anyone in it . . . .

So you misunderstand why people "cling to" God and guns. You wonder what's the matter with Kansas because you can't see why working class people might not believe that their politics must center around voting themselves more of someone else's money. You define wedge issues as things that people care about even though you believe that they should not.

H/T: Paul Horwitz at Prawfs

Monday, July 21, 2008

I had a Miles Standish!

For those of a certain age, this may be of interest. Last week I had a meeting down at Marquette. It was about a topic that may be of great interest to some of you, so watch this space for details. I finished a meeting at St. Paul's Church a bit early and decided to have lunch before heading to campus. I decided to do something that I have been wanting to do, but had not yet managed.

I went to Suburpia at Prospect & North.

In the 70s, Suburpia was the place where you got a few sandwiches to smuggle into a concert or to quell a late night hunger of whatever etiology. We told ourselves that it was reputedly financed by money obtained through the sale of illicit substances, although these were just unproven rumours. The original chain was, I can tell you from some later professional experience, run by a visionary who had some issues. Eventually they went bankrupt and away from us.

In the past few years, new owners have opened a few stores with,as I understand it, the original owner as a consultant.

A Suburpia store was a special place. You'd walk into what looked like a closet plastered with concert posters. You'd get waited on by a head who grabbed your sandwich from a chute. You'd eat it out of the plastic bag it came in and down it with one of those old cartons of Coke that resembled the old cardboard milk containers. It was oh so good.

And, you know what, it still is! There I was. Middle aged, conservative law professor sitting in my Mini Cooper with the top down and scarfing a Miles Standish.

As someone once said, it was as if I had been dipped in magic waters and the memories were so thick that I had to brush them away from my face.

I'm definitely going back.


I'm trying to get together a post on public discourse about race in Milwaukee, but I am all caught up in getting a law review article written.

In the mean time, there has been recent discussion around Milwaukee about whether use of the word "thug" to describe a black man is racist. Jim Rowen argues that the term has acquired racial significance and Mike Plaisted (who ought to think long and hard before he accuses anyone else of name-calling)suggests that it is the new "n-word."

As a general proposition about the word, this does not, as we say, bear scrutiny. "Thug" has a longstanding and contemporary meaning that has nothing to do with race. It is commonly used to refer to people who are not black and is even used by some Democrats to refer to "Rethuglicans." The notion that it has acquired some generally understood secondary racial meaning is, notwithstanding an exceptionally foolish article in the Atlanta Journal Constitution, a proposition lacking in evidence.

The AJC piece simultaneously argues that Tupac Shakur popularized the term "thug" in connection with inner city violence while suggesting that the Tupac opus "Shorty Wanna Be A Thug" is an example of amelioration - minorities turning a bad word unfairly imposed upon them into something positive. As if, in the words of the song, young men "blazin" with their "fingers on the trigga" who are "getting buzzed" and "getting with hoes" are anything but that. One can certainly hear the Tupac song as a tragedy. Maybe it was even so intended, although lyrics about "carrying weight like a Mack truck" and standing "six feet ten" may mix the message a bit. In any event, I doubt that those most at risk of becoming "thugs" have heard it that way. This so called "ameliorative" use of the word is hardly positive. If "thug" has come to be used to refer to inner city gangsters, that is certainly not a creation of racist right wingers.

Indeed, one could argue that returning the pejorative sense to the term "thug" - as many black leaders have tried to do - is a public service rather than, as Plaisted would have it, an exercise in "self-hating license."

There are, however, two other senses in which Jim and Mike may intend their arguments. One is the idea that racial sensitivity or some other idea about the supposedly irresistible prompting of the dispossessed to violent crime requires that we stay away from such judgmental language. Thus, Plaisted says that it is "unfortunate," "divisive" and "name call[ing]" that Mayor Barrett has chosen to call "out-of-control kids on the street "thugs" – as if there were some other word for young gentleman who open fire into a crowd of people.

This is, of course, an overwrought charity that is intended to flatter the "open-mindedness" of those who propound it. See how good we are, turning the other cheek whenever someone other than us gets beaten, stabbed or shot. It can be an indifferent - and murderous - benevolence.

The other idea is that it is silly to call Lee Holloway - a "strong African-American elected official" - a "thug." No one would call a strong white elected official a "thug."

Except they do - George Bush and Dick Cheney, strong leaders both, are often called "thugs." James Widgerson demonstrates that's true for Bush and it's true for Cheney as well. I suspect that there are few politicians that someone somewhere has not called a thug. (Indeed, in about five minutes, I found examples of Jim Sensenbrenner being called "a portly beer house thug" (the writer sort of blew the intended Nazi allusion - the right term is "beer hall"), and WMC's Jim Pugh being accused of "thug-like" behavior.)

In fact - and this is a beautiful thing - none other than Mike Plaisted earlier this year referred to "right-wing thugs like Bill Kristol, Pat Buchanan and Bill Bennett ...." Kristol (or,as the Reddess calls him, "my boyfriend!") is Jewish. Is the term "thug" also anti-Semitic? Or was Mike confused about Bill's race?

Do conservatives ever use the term to refer to people who are not black? Well, in that same few minutes, I found moi using the word to refer to the white Jude cops, Charlie Sykes using it to refer to antiwar protesters who are, at least by stereotype, not black and Patrick McIlheran using it to refer to Vladimir Putin. Brian Fraley gave more examples in a comment to Plaisted's post.

A combination of these two arguments might claim that we should never call a black politician a "thug" because that associates him with actual or caricatured inner city violence. With a few exceptions like Michael McGee,Jr., that is an unfair connotation.

That's a better try, but, in my view, it slices the rhetorical loaf too thin and devolves into a presumption against saying anything negative about such politicians. It's unfair to their critics and unfair to the politicians themselves. Individuals who are treated with kid gloves are never taken seriously.

Can Holloway fairly be called a "thug?" He is, from public reports, something of a slumlord and the "un-sale" of a building he owned to OIC was rather curious. He did apparently get into an altercation with another supervisor, but thug (as opposed to certain other things) is not the first thing to come to mind. But, for better or worse, people use harsh language in politics. While he is clearly part of the problem and not the solution, I wouldn't call Holloway a "thug." But then I wouldn't call Bush or Cheney thugs either and I am not about to accuse people of being racists when I have no evidence of it.

No, I "get" judicial integrity

Paul Soglin says that "I don't get" his complaints about the Wisconsin Supreme Court's decision in Wisconsin Department of Revenue v. Menasha. It's not the Court's decision, he says, it is that WMC who filed an amicus brief in the case spent all that money in support of her election.

I do understand. Part of my objection was that a good deal of the commentary (Paul less so than others)claimed that Justice Ziegler's vote must have been payback to WMC. As I pointed out, the question before the Court is one on which many have disagreed. Someone can support Menasha's position without having been paid to do so.

But, Paul now says, it's not the decision, it's the way that the campaign was influenced - all that money creates the appearance of impropriety.

I understand that too, although I also think that the concept of an appearance of impropriety serves as a cover for a great deal of mischief.

But here's the thing. It's not so easy to address this problem without scrapping judicial elections. The idea that Justice Ziegler ought to have recused herself is unrealistic. Let's assume that Justice Butler had won reelection. Would Paul Soglin, Jim Rowen and One Wisconsin Now demand that he recuse himself in matters of interest to the plaintiff's bar, WEAC and other public employee unions. They all spent massively on his behalf although it is hard to know precisely who spent what since it is all bundled under the auspices of the black hole known as the Greater Wisconsin Committee.

I wouldn't. In fact, I would argue that the strong presumption ought to be that he sit since he was elected by the voters to be part of a multi-member court deciding cases by a vote of the members. When a justice stands down, the popular will with respect to who is supposed to be participating in these cases has been frustrated. Sometimes it can't be avoided, but recusal should be rare.

Public financing won't solve the problem either. As I suggested here, there is no way - and probably should be no way - to stop interested parties from being heard on issues affecting an election. Nor may it be possible to increase public financing on behalf of candidates who face oppositional independent spending.

We could, of course, appoint judges but that does not eliminate the politics, although it may make it a bit more opaque.

I am, as I have said, something of an agnostic on judicial elections. If we are to elect judges, it has to be predicated on an assumption that we trust voters to make the right decisions. And we trust those that they elect to approach cases, not without existing views on the role of courts and judicial hermeneutics, but with an open mind and intellectual integrity.

I have no reason to question that any member of the Wisconsin Supreme Court does otherwise.

Sunday, July 20, 2008

Sunday classics

Some one who is roughly my age recently said that women of his (our)age are "too old." I disagree. While I could point to so many women around me (including the lovely Reddess of R) to make my point, this is Sunday and that means videos of live music here on the old blogspot. So, in keeping with my "quirky chick" singers, theme, I offer three female performers who are older than me, but definitely not too old.

First, Emmy Lou Harris (61 this year)

My own special favorite, Chrissy Hynde (57 this year)

And for Illusory Tenant, Lucinda Williams (55)

Saturday, July 19, 2008

Bias and public scholarship

Interesting piece by David Dodenhoff on what it means to do scholarship within the auspices of a think tank devoted to a particular perspective, in his case, the Wisconsin Policy Research Institute. (By way of disclosure, I have written for WPRI in the past and am doing so as we speak and, yes, I have gotten paid for my work. No one ever tells me what to say.)

Dave criticizes the notion that you can dismiss scholarship on the basis of its provenance and I think he's right. We all have our reputations and respect for professional integrity. Lots of times people who do work for think tanks have, like me, other institutional affiliations that tend to provide whatever required additional discipline that can't be summoned from our own sense of integrity and struggles to be objective.

Of course, "conservative" think tanks look for conservatives in the same way that liberal ones seek scholars with a liberal bent. But the fact that you have an ideological predisposition does not mean that your work is slanted. We all have ideological predispositions (including predispositions to split the baby). My own view is that it is better to acknowledge them than to pretend they don't exist.

Dave admits quite candidly that a conservative scholar at a conservative think tank (and I suspect it works that way on the other side as well) often pick fat targets and low hanging fruit. I have done it myself. I was fairly certain, for example, that I would conclude that Healthy Wisconsin's residency requirements were constitutionally problematic before I wrote this piece. I wasn't writing on a blank slate.

But I think (and I'd suspect he'd agree)that conservatives and liberals need to challenge their ideological predispositions. A small example. I am struggling with a piece that addresses the asymmetrical manner in which the Supreme Court treats government speech bearing on religion. The rule - with a few exceptions largely based in history or pragmatism - is that the government as speaker ought not to endorse religion or irreligion.

The problem - noted by many - is that the government actually says quite a bit that amounts to a repudiation of people's religious perspectives and is quite free to do so as long as its statements are not expressly theological. The government can't, for example, say the Bible is wrong but it can promote things - like the normative status of homosexuality or, for you liberation theologists, the supremacy of markets - that, in the view of some, contradict the Bible.

This asymmetry violates most - if not all - of the rationales offered for nonendorsement, i.e., the avoidance of division, the promotion of political equality and the idea that no one should feel like a second class citizen based upon religion, and the protection of religion from the heavy hand of government.

What it does do is foster - or at least privilege - a certain type of religiosity associated with the Protestant mainline, i.e., faith is private and whatever implications it has for public life ought to be left out of discussion in the larger society.

One way to resolve this would be to get government out of the business of pronouncing upon matters with which religion is concerned. Part of me likes the idea because I am all about limited government, subsidiarity and the promotion of vibrant voluntary institutions.

But I have to acknowledge that this won't work. Its impractical to think that government will get out of the business of promoting values and religious diversity precludes limiting it to values that all of us can agree on.

So, I think, to remedy the asymmetry, we have to abandon nonendorsement. If government is to involve itself with things on which religion wishes to speak, then it has to allow religion into the conversation even if that means acknowledging the religious perspective of its citizens in a way that someone might construe as endorsing them. Its not the limited government solution but I suspect that it may the best one.

Friday, July 18, 2008

Supreme Court rules that the death penalty is totally bad***

See the report here. Warning: Profanity abounds:

Supreme Court Rules Death Penalty Is 'Totally Badass'

H/T; Terry Beres.

A worker's paradise?

A second theme around the MillerCoors decision were claims that higher taxes might help create a good business environment because they pay for things that businesses like. Paul Soglin, without reference to authority, suggests that a good business environment is defined by the Green Party platform. The blogger known as capper suggests that the decision must have had something to do with Chicago's "high quality mass transit system, that includes a rail component .... "

The latter is wishful thinking. MillerCoors is locating in downtown Chicago and, although they said nothing about it, might be concerned about how easy it is to get in and out of downtown Chicago - no matter how one does it. Rail or not, Milwaukee would have won on that factor. As for O'Hare (which it did mention), Chicago has better air service than Milwaukee because it is the third largest city in American and located smack dab on the middle of the country.

Soglin has less than a third of a point. It is certainly possible that a skilled workforce - which may well be related to public education - is important for business. It may also be the case that infrastructure matters. This is distinct, however, from satisfaction of the demands of WEAC and public employee unions. I rather doubt that greater progressivity of the tax code, a high minimum wage, tougher than national environmental regulations(Wisconsin's DNR is not so popular with business people), government spending on childcare, etc., are likely to be positive factors. While quality of life is important, I don't know what many people equate that with the general level of state spending.

Taxes may not be decisive, but are never irrelevant

This week's decision of MillerCoors to headquarter their join venture in Chicago prompted folks to assume the ideological battlements. The JV said taxes weren't a factor although they are pocketing millions in tax abatements. Some bloggers argure that this supports the notion that taxes are not such a big deal when it comes to business decision-making. I was struck by this quotation attributed to former Treasury Secretary Paul O'Neill:

‘As a businessman I never made an investment decision based on the tax code. If you give money away I will take it, but good business people don’t do things because of inducements.”

The blogger (Michael Rosen) doesn't provide a link but the statement is taken out of context or is flatly wrong. Obviously so.

In my corporate life, I was involved in lots of decisions about whether to buy a company or open a facility. You always take the tax code into account. Failure to do so would be negligent. Business people always project expected financial results through pro forma financial statements and, when doing so, you would be an idiot to ignore any nontrivial costs, of which taxes are one. Incentives affect these pro formas and can turn an unprofitable project into a profitable one or make one option more profitable than another. I have seen deals structured to minimize tax liability. I have seen deals go away because of taxes. I have seen deals turn on the availability of incentives. I never - ever - saw a deal in which taxes were not tsken into account.

Of course, they are not the only factor but, all else equal, people do prefer to pay less, rather than more, tax.

No importation of blasphemy judgments

Rep. Steve Cohen (D-Tenn.) has introduced a bill that would prohibit federal courts from enforcing foreign judgments for defamation unless they are consistent with the First Amendment of the Constitution. The bill is aimed at UN supported law in other nations that permit actions against individuals for published remarks deemed to be hostile or offensive to or defamatory of a religion or religious group, i.e., for "offensive" or "hostile" remarks about a religion.

For example, Mark Steyn has been charged with, essentially, blasphemy in Canada. He beat the rap before the Canadian Human Rights Commission, but a decision is still pending before the British Columbia Human Rights Commission. Imagine he loses and the judgment involves some type of monetary award to the complainant.

Under the proposed statute, the successful would not be able to petition the United States District Court for New Hampshire (where Steyn lives) and seek to garnish his earnings or attach his property.

The Beckett Fund has called upon John McCain and Barack Obama to support the bill. It's scope is somewhat broader than religious defamation, but I have no problem with that.

I don't recognize the names of all the sponsors of the bill, but those I do are all Democrats. Republicans ought to support this as well.

H/T: Religion Clause Blog

Wednesday, July 16, 2008

Blogging Hornback

I don't have a lot to say about the Wisconsin Supreme Court's decision today in Hornback v. Archdiocese of Milwaukee. The Court affirmed the dismissal of claims against the Diocese of Madison and, by an even split, the Archdiocese of Milwaukee. The Diocese and Archdiocese were alleged to have known that one of its former employers had sexually abused children while working in their schools. The plaintiffs in this case, however, were not students at those schools but alleged they were abused by the former employee while he was working at a school they attended in Louisville Kentucky. The claim was that the Diocese and Archdiocese breached a duty to warn future employers of their former employee's past misconduct.

The Court unanimously (Justice Prosser did not participate)held that there is no such duty under Wisconsin law. That seems reasonable. A duty on the part of employers to seek out and warn unknown future employees of someone's misconduct seems unmanageable.

Marci Hamiliton, a law prof who argued the case for the plaintiffs and whose work focuses on what she regards as the law's excessive deference to religious institutions, says that it is a narrow decision in a rare case with limited future applicability.

Well, yes and no. The case has nothing to do with claims against the employer of someone who commits this type of abuse. (The plaintiffs here had already settled with the Diocese of Louisville.) But had the Court gone the other way, it would have resulted in a geometric increase in liability for Catholic dioceses and other employers.

There were additional allegations made against the Archdiocese of Milwaukee. The plaintiffs said that it had promised parents of the children abused in Milwaukee that it would refer the abusing employee for treatment and begged them not to call involve the police, but then failed to refer him to treatment. That apparently would have been enough to reinstate the claims against the Archdiocese for Chief Justice Abrahamson, Justice Butler and Justice Bradley, presumably on a theory of affirmative misrepresentation. Justices Ziegler, Crooks and Roggensack disagreed and, when there is a tie, the decision appealed from (which went in the Archdiocese' favor)stands.

The case is also significant for something else that it did not do. The Court did not address Wisconsin doctrine regarding the reltionship between cases like this and the dioceses' free exercise rights.

Bill of Rights for Bonzo

Sunday's New York Times contained a piece on the "rights" and "humanity" of apes. On Monday, Adam Cohen wrote an op-ed favorably disposed to the notion that all apes are, if not equal, at least roughly comparable. Writing in Slate, Will Saletan addresses the notion that apes are not entitled to human rights because they have no souls:

Secular humanists reject this dogma. We understand that there's something wonderful and uniquely worthy of respect in the power, richness, and subtlety of the human mind. But to us, the soul doesn't explain these wonders. It describes them. That's one reason why the destruction of human embryos doesn't torment us the way it torments pro-lifers. We don't believe in ensoulment at conception. We believe in the gradual development of mental capacities.

This puts us in an awkward position. We call ourselves egalitarians, yet we deny the equality of conceived humans. We believe that a woman deserves more respect than a fetus. A 26-week fetus deserves more respect than a 12-week fetus. A 12-week fetus deserves more consideration than a zygote. We discriminate according to ability.

This is also why ape rights appeals to us. It's not a claim of equality among all animals. It's a claim that apes resemble us in ways that insects don't. It's a kind of discrimination. Cohen observes that Peter Singer, the philosopher behind the ape rights movement, believes that "species should be evaluated on a case-by-case basis."

Saletan gets at the crux of a much larger problem. Once you reject "the dogma," you need some other foundation for human rights and equality. You need some other way to decide who is in and who is out. This applies not only to animal rights and abortion, but to questions of euthanasia and, increasing, biomedical research. People who were able to dismiss embryos created for research as clumps of cells may have greater difficulties if the science leads to things like fetal farming or even the creation of insentient humans for organ harvesting.

Saletan is willing to face the implications of his anthropology:

We've already established that you accept this principle if, like me, you discriminate among preborn humans based on degree of development. And if you accept that humans and apes gradually evolved from common ancestors, then you'd also probably discriminate among born humans based on degree of evolution.

Why should this be troubling? I suspect that it is the lingering pull of the dogma.

H/T: Rob Vischer.

Hallways as religion free zones

If fascism still exists, I suspect that it is most often found in condominium associations.

Last week the Seventh Circuit decided a case called Block v. Frischholz. The case involved a Chicago condo association rule that prohibited "mats, boots, shoes, carts or objects of any sort” from being placed in the hallways. The rules also apparently prohibited signs or other objects on doorways.

The association applied the rule to prohibit mezuzot - small cases containing a parchment called a klaf on which is written the words of the “Shema Israel” (”Hear Israel”) — a scriptural passage that admonishes the faithful to love and to serve God and to keep His words upon their hearts and souls. Observant Jews place a mezuzah at entrances to their homes.

The condo association eventually created a religious exception to the rule and are now, in fact, required by Chicago's municipal code to do so. But the plaintiffs pressed ahead anyway, arguing that the rule violated the federal Fair Housing Act and seeking damages.

In a split decision, the Court found that the rule did not violate the Act because it was neutral with respect to religion. It applies generally to all signs and objects on doorways. Because, in the view of the majority, it was not targeted at religious observances, it did not constitute religious discrimination.

Although it was not a constitutional case, the Court interpreted the Fair Housing Act in the same way as the Supreme Court has interpreted the Free Exercise Clause. Accommodations and exceptions for religious practice are generally not required. (Some federal anti-discrimination laws expressly require accommodation for religion but not the Fair Housing Act.) A common justification for this approach is that, given the diversity of religious practices, the courts would be overcome with claims for exceptions from all sorts of laws. (NB: The Wisconsin Supreme Court has interpreted our state constitutional free exercise guarantee to require more substantial justification for the refusal to grant exemptions for laws burdening religious practices.)

Of course, upholding neutral rules of general applicability permits substantial burdens on religious practices and those burdens are likely to fall on religous minorities. In her dissent, Judge Wood argued that the original rule would constructively evict observant Jews. Accommodating them would involve little burden. A mezuzah is a very small thing. Years ago, when I bought my first house in Whitefish Bay, I noticed - sometime after we moved in - a mezuzah on the entrance to the kitchen. It probably wasn't placed there by the previous owners - they weren't Jewish - so I suspect it had been their for years, largely or completely unnoticed.

When I learned what it was I left it there. It seemed like a good thing to have. I sold the house in 1989. I wonder if its still there. I hope so.

Judge Wood chided, unfairly I think, the lawyers for the condo association for criticizing the plaintiffs for seeking damages after the rule had been changed to permit mezuzot by accusing them of wanting their "pound of flesh." The origin of that term is Shakespeare's Merchant of Venice and its anti-Semitic portrayal of Shylock. I doubt that the lawyers knew that.

Tuesday, July 15, 2008

Who's "swiftboating" the state Supreme Court?

I have not had time to thoroughly review the Supreme Court's decision in Wisconsin Department of Revenue v. Menasha Corporation. The case involved the interpretation of statutory language that subjects computer programs to sales tax unless they are custom programs. Menasha bought a program which apparently could be used without customization, but not by it. The DOR had decided that it was not a custom program and Menasha appealed to the Tax Appeals Commission. The Commission ruled in favor of Menasha, concluding that the program was custom. The DOR appealed to the Circuit Court which reversed. The Court of Appeals reversed the Circuit Court (finding for Menasha) and the Supreme Court affirmed that ruling. Menasha wins and does not have to pay sales tax on the program (which cost a bit north of $5 million).

My old Backstory colleague Jim Rowen is upset because the decision potentially blows a "$265 million dollar hole" in the state budget because there are a lot of software programs sold which, while they might stand alone, actually require substantial modification.

My good friends at One Wisconsin Now weigh in and Paul Soglin does too. But here's the thing: None of them criticize the Court's reasoning or, for that matter, say much about what the issue. OWN does accuse the author of the majority opinion, Justice Annette Kingsland Ziegler, of giving WMC and the business community (who supported her campaign) "what it paid for" and Jim calls her WMC's
servant" and the Court "its subsidiary." He asks us to imagine the "WMC-serving" justices as sycophantic flight attendants in first class waiting on someone (presumably rich people) while the rest of us swelter in steerage. Soglin limits himself to juxtaposing the ruling with WMC support of Justice Ziegler.

Here's an irony. All of our interlocutors have roundly criticized WMC and others who opposed their preferred candidates for the Court of "oversimplifying" complex legal questions and, in railing against decisions that favor criminal defendants, appealing to popular prejudice. At the time, I sometimes agreed with those criticisms and sometimes disagreed, generally believing that they were not evenly applied.

And so they are still not. If the decision is wrong, it is certainly not because WMC supported it or because it will prevent the DOR from imposing $ 265 million in sales tax. If the law does not call for a sales tax, then a sales tax ought not to be collected. Contrary to what Paul Soglin says, that decision would be in the interest of taxpayers.

All of our critics argue that Justice Ziegler should have recused herself but that is an astonishing claim. WMC was not a party to the Menasha case. It filed an amicus
brief in support of Menasha's position. In the last election cycle, a variety of interests - WEAC, other public employee unions, the plaintiff's bar, the criminal defense bar, the casinos - undoubtedly spent in support of the incumbent and, if there is a contested race next year, will do so again. With the exception of the casinos, all of these are logical sources of amici briefs in pertinent cases - all of which will, we hope, provide a useful perspective to the issues before the Court. If justices are to recuse themselves because the interests associated with amici supported their candidacies, then judicial elections will be rendered completely unworkable in cases in which there is broad public interest.

Was the decision in Menasha Corporation correct? I'm not prepared to say. The majority was concerned not only with construction of the statutes and rules in the first instance, but also with the extent of deference to the Tax Appeals Commission. That the court was split on the matter and two of the three entities that had reviewed the matter concluded that there should be no sales tax suggests that it is an issue on which reasonable jurists may differ. I have been asked to write on the case for State Court Docket Watch this fall. That won't involved editorializing on the outcome, but I may have more to say later.

Nevertheless, questioning the integrity - as opposed to the the merits of the matter - of the Court is unwarranted.

Poor Barack

So what's the concern over the "offensive" New Yorker cover depicting Michelle Obama as a revolutionary and Barack as a Muslim terrorist? Are we afraid that somewhere down in Bugtussle, Cooter, having been nudged awake by cousin Ellie, is going to stumble out of the trailer and up the holler to get the mail and find his worst fears confirmed in his monthly New Yorker?

Is it that right wingers are going to circulate the picture because they could never have done one on their own and, in any event, potential McCain voters will certainly be swayed by the New Yorker masthead?

Mark Hemingway makes a pretty good case that the people who ought to be offended are mainstream conservatives whose criticisms of Obama are being unfairly caricatured. But such is politics.

The most significant effect of the cover, I think, is that it gives Obama yet another opportunity to be "wronged" and "offended."

Monday, July 14, 2008

As the Favre Turns

I can't avoid it. I have a great deal of sympathy for Ted Thompson. Favre is acting like a real head case. He's made Thompson's job difficult and placed even more pressure on Aaron Rogers should the Packers not take him back. (Keep that last bit in mind.)

But I am also willing to cut Brett a little slack. Not because he is a superstar, but because anyone who has watched the guy play must know that the prospect of stopping must be tearing him apart. He knows he has to do it. He wants to do it at the right time, But he just cain't.

So he's changed his mind and it must be driving Thompson crazy. But here's the thing. Put aside the possibility that Thompson believes that Aaron Rogers is a better quarterback today. Such a belief would be facially irrational. Even if it turns out to be true, there is no reason to believe it to be so. In any event, it appears that Thompson himself does not believe it. By his version of events, he was willing to start Favre over Rogers three months ago.

Clearly Rogers (or some other quarterback) is the future. But when you come within one drive of going to the Super Bowl - when you have a team that has won seventeen of its last twenty-two games - the future is now. If a team that is already very good will be better with Favre, then it is in the best interests of the team to play him.

And it also may be in the best interest of Aaron Rogers. Following Favre's act is difficult enough, doing it when the fans know that they could have had another year of Brett makes it even more difficult. If he struggles, it was always going to be ugly. Now it's going to be even uglier.

We've "made our plans" is meaningless. Favre is certainly able to step in and run the offense that he ran last year. And if Aaron Rogers is big enough to succeed Favre, he's big enough to wait another year.

As frustrated as they may be, Thompson and McCarthy are doing the wrong thing. They should take him back.

Apparently that won't happen. I don't think it will be Tampa Bay. I don't see them sending him to anyone who is on this year's schedule. Washington makes more sense. If they play, it'll be in the postseason and, if that happens, Rogers will probably have turned out to be pretty good. Baltimore seems like the other possibility. They may not get it, but I'd insist on a first round draft choice.

OWN struggles mightily to bring forth ...

One Wisconsin Now has filed a grievance against Supreme Court Justice-elect Michael Gableman with the Office of Lawyer Regulation. Having failed to interest anyone in filing criminal charges against Gableman, it now wants OLR to investigate disciplinary charges.

Gableman's alleged offense is making phone calls from his office at the Ashland County District Attorney's office (or on a state cell phone) that may have been connected to a fundraiser that he hosted for Governor Scott McCallum.

Thus, the permanent campaign becomes the permanent election. OWN has absolutely no interest in ensuring that no state property is ever used for political or personal business. There is no chance that it would ever scour the phone records of politicians and public officials that it favors. If I dropped records showing that a liberal politician had done the same thing on Scot Ross' desk, nothing would happen.

But a partisan motivation doesn't mean the complaint does not have merit. OWN wants to say that this is just like the legislative caucus scandal in which staffers were hired with legislative funds and then directed to work on campaigns.

The statute that this is supposed to violate is sec. 946.12 which makes it a felony for a public officer "[w]hether by act of commission or omission, in the officer’s … capacity as such officer … exercises a discretionary power in a manner inconsistent with the duties of the officer’s … office … or the rights of others and with intent to obtain a dishonest advantage for the officer … or another ...."
OWN might also argue that, if the calls were made from his office and included political solicitations, then they would violate sec. 11.36(4), a clumsily worded statue that states that "[n]o person may enter or remain in any building, office or room occupied for any purpose by the state, by any political subdivision thereof or by the University of Wisconsin Hospitals and Clinics Authority or send or direct a letter or other notice thereto for the purpose of requesting or collecting a contribution."

The complaint is, I suspect, going nowhere. There is no way to determine what was said in these phone calls (Justice Gableman says that he cannot remember but is sure that he made no fundraising calls) and I doubt that OLR is going to file a complaint against a sitting Supreme Court justice based upon a presumption that they "must have" related to politics or included solicitations because they were directed to political people. However reasonable that inference might be, it's going to take more than that.

Beyond let's assume that they involved planning the fundraiser. (That seems to be the most that one could infer.) Should they be considered criminal? Does one really gain a "dishonest advantage" by making phone calls from his or her office? Doing so is rather commonplace.

OWN would like to rely on the cases against legislative leaders like Chuck Chvala and Scott Jensen. In my view, criminalizing the caucus scandal was wrong. But it is one thing to hire staffers with legislative funds and use them on a campaign. It is quite another to make a few phone calls. (Although a jury apparently need not find that even the former violates the statute.

I appreciate the OWN is funded to snap at conservative ankles, but this is a nonstarter.

Sunday, July 13, 2008

Obama misses the point on bilingualism

Barack Obama's remarks on "your kids" needing to learn Spanish (referring to people who support some form of "english-only" initiative) is of a piece with his previous gaffes. It was an off the cuff moment which, notwithstanding his hard tack to the right once the nomination was clinched. reflects his rather standard left-liberal predispositions. He doesn't like initiatives, such as english-only curriculum which might increase the english capabilities of immigrants. He waves off, as he so often does, the consequences of this form of "compassion." "They'll learn English," he says."

There is also a sense in which he has once again come across as a condescending Ivy-leaguer. He hates the fact that "we" go to France and all we can say is "Merci Beaucoup." Everyone laughs. They can remember struggling with the menu in Cannes.

Now I think learning a foreign language is a great thing. I have a little German and one of the things I'd like to do, if I had more time, is become fluent or, perhaps, to pick up some French or Italian. For me, it will have little professional applicability but would be enriching.

And that brings me to the first thing that Obama's remarks miss. The reason that we don't place more emphasis on teaching foreign languages (although most kids wind up taking a few years of it) is that, for most of us, it's not necessary.

The fact is that you can go to France and do quite nicely speaking only English. I have represented a client in purchasing companies in Denmark and Germany. We negotiated and wrote the agreements in English. I can call almost any law firm in Europe and talk to a receptionist, much less a lawyer, who can speak very passable English.

It is difficult - particularly later in life - to learn a foreign language. You are far more likely to do it if you have to and you are immersed in a context in which it is the only thing spoken. "They'll learn English?" Well, maybe not if they can get by without it, however much it might keep them from more significant advancement.

The second thing Obama misses is reflected in his admoniton to all of us to learn Spanish.

Why? If the point is to be able to speak to newcomers who can't speak English, then his problem with our monolinguism is that we won't accommodate newcomers who want to retain their native tongue.

That's very different than the motivation that has compelled so many Europeans to learn English. It is not to accomodate immigrants. (They'd need to learn Arabic to do that.) It is because English has increasingly become a common second language and is often used to conduct international business.

There may certainly be value to learning Spanish in a globalized world, but Chinese or Russian or even Arabic might be better choices.

Having gaffed again, Obama embarked on his customary backtrack. "All I was doing is advocating learning another language. That's a good thing."

Sure it is. But his purpose in saying it was to dismiss initiatives that might help immigrants have the same advantages as the French and Danes. His example of bilingual Europeans makes a point just the opposite of what he intended.

Friday, July 11, 2008

The epic goes on ... and on

I hope this is my last post on Epic and WMC. Paul Soglin is indefatigable on this, but he's getting paid (although still no word on who writes the checks) and I'm not.

Paul makes this "educated guess" about Cullen's departure from WMC:

My guess is that Dave Cullen, already wishing his business was not associated with the WMC attack ads, said to himself, "I am not comfortable with my role in WMC, I do not spend a lot of time on its agenda, I have too much to do here at Cullen. I do not want people to hold me responsible for these attacks which I did not author and which I do not approve. The best thing is to leave the group and move on. My WMC membership is not helping WMC or my company. How do I manage that so I do not hurt Cullen, Epic or WMC?"

The result was Cullen's resignation from WMC and followed by Rick Esenberg's conclusion as to why Cullen left. Rick looked at the multitude of explanations and motivation about the Cullen resignation from WMC and concluded, in an incredibly flawed analysis, that they were mutually exclusive.

He never imagined, what I suspect is the truth. Cullen while exiting WMC do so motivated by a distaste for the issue ad campaign but also, did not want to hurt WMC since he believed in the core mission: to help Wisconsin business.

The problem with this guess is that Paul just made it up. It could have happened that way but there is no evidence that it did and, as I have blogged, some evidence that it did not.

I continue to think that what Cullen said about WMC(he supports it), the issue ads (nothing)and the relationship between his decision and "valued clients" in combination with the proximity of all of this to Epic's statement makes it reasonable for people to assume there was a connection. My guess is that Ms. Faulkner is not unhappy with the fact that people might make that connection.

But, quite frankly, I am uncomfortable about continuing a public debate on someone else's motives under circumstances that may be sensitive to his business. Most of what I have written about on this issue has to do with the idea of refusing to do business with people for political reasons. That, as opposed to Dave Cullen's relationship with Epic, is what's interesting here.

McCain is right: It is a disgrace

The Democrats are all over John McCain for referring to the current status of social security (not, as they falsely imply, the program itself) as a disgrace. For a local manifestation, check out Michael Leon at Jay Bullock's bog, supported by Jay in the comments. McCain was referring to the fact that the program is about to go upside down with expenditures exceeding revenues. It is in that context that McCain said that younger workers paying for older workers retirement is a disgrace.

What a fool, they say. He doesn't understand the program. It has always been "pay as you go."

No, it hasn't. Not since 1983. In keeping with Mark Steyn's observation that demography is history that has already happened, we have known for a long time - over thirty years - that "pay as you go" was unsustainable. The reason, of course, was a combination of longer life spans and the pig in the python called the Baby Boom. We knew that a time was coming when there would be dramatically fewer workers than retirees because there are a lot more people who are my age than Jay's.

So we did something about it. In 1983, we effectively abandoned "pay as you go" raising social security taxes to a level that were designed to exceed what was required to pay current benefits with the excess going into a social security trust fund which could then be used to pay benefits during the time that the Boomer pig was passing through the snake. This was the "lock box" that Al Gore kept referring to before he realized that he had to save the world.

The purported existence of this trust fund is the reason that Jay and others claim that social security is solvent and can continue to pay most of the promised benefits.

And that would be true - if the trust fund really existed. But it doesn't. The lockbox is, for all practical purposes, empty.

Oh, it's there as a matter of bookkeeping but it contains no cash or marketable securities that the government can use to pay its obligations. What has happened is the government has spent the excess social security taxes - the ones that were supposed to be set aside for the rainy day that we have long known is coming - on other things.

The trust fund consists of nothing but treasury bonds. That might be a great asset if you are someone other than the government, but not so good if the entity holding the bonds (the US) is also the one liable on the bonds (the US.) It's as if I saved for my kids education or my retirement by spending what I was supposed to save but dutifully writing myself IOUs. Here's how OMB puts it:

These [Trust Fund] balances are available to finance future benefit payments and other Trust Fund expenditures – but only in a bookkeeping sense.... They do not consist of real economic assets that can be drawn down in the future to fund benefits. Instead, they are claims on the Treasury that, when redeemed, will have to be financed by raising taxes, borrowing from the public, or reducing benefits or other expenditures. The existence of large Trust Fund balances, therefore, does not, by itself, have any impact on the Government’s ability to pay benefits. (from FY 2000 Budget, Analytical Perspectives, p. 337)

So - in about 2018 - when benefits begin to exceed revenues - we are going to either have to raise taxes or borrow more money or, but this is probably fantastical, cut spending. This is because, although the trust fund can redeem those bonds and the government will presumably honor them, the government that redeems them is the same government that is paying the social security benefits. In order to redeem the bonds, it has to find the money to do so.

As time goes on, the shortfalls - particularly when combined with projected shortfalls in medicare - figure to be huge. We have known about this for years and we have done nothing about it. That is a disgrace.

Thursday, July 10, 2008

Right and wrong on Iraq

Following my posts about the Virtual Army Experience at Summerfest and "being serious about Iraq, Jay Bullock posts this. He wonders if he is being unfair to me. That's not for me to say, but he is certainly mischaracterizing my position. Perhaps I did not make myself clear. If so (but I don't think so), I will now.

I did not say that people who opposed the Iraq war are not serious or unthinking. As Jay acknowledges, I wrote that the war was a very difficult question. By definition then, I think reasonable and serious and thinking people could have opposed it. (I wasn't in the pundit game back then so I did not publicly say anything and, honestly, I am not sure what I would have said. I think I was very slightly in favor of going ahead but was mostly glad that it wasn't my call.)

My second post ("Being serious ...) was prompted by commenters who repeated the slander that "Bush lied and people died." If you believe that, I do think that you are either misinformed or hopelessly partisan; even not serious.

Jay suggests that I regard people who "oppose war" (by which, I take it, he means pacifists) as "unthinking, uncaring, unfeeling."

Actually, I don't. I have a great deal of respect for clear-eyed pacifists. I'm not saying that only Christians can be pacifists, but there is a quite honorable tradition of pacifism among Christians with a reasonable amount of support in the teachings of Jesus. What bothers me is those who don't want to acknowledge that this pacifism is very likely to lead to earthly slaughter. If you truly want to be a pacifist, you have to accept that and argue that there is a greater good to be served. There are some rather noble historical examples of leaders (Ghandi, King) who understood this. Although, having said that, this type of self effacement may not turn out so well if you aren't up against power that has bought into - call them what you want - Judeo-Christian or western liberal or enlightenment values. Had Ghandi faced Stalin or Hitler rather than the U.K and USA, both would be probably be tragic historical footnotes. It's tought to heighten the contradictions if the society doesn't think that there are any.

Jay goes on to suggest that, if you thought it was a close call, you should be opposed now. But that doesn't follow. What we should do in Iraq today is not controlled by a posthoc reasssessment of whether we should have gone in the first place. I was uncertain about the war ex ante. I am pretty sure that withdrawal now would be a disaster.

Courting political war of Epic proportions

This will probably be my last post on Epic and WMC. But there are two more things I want to say. One is ironic and the other is, I hope, instructive.

Let's see what we can learn first. Bloggers and columnists have fought over whether Epic's announcement that it would try not to use vendors who support WMC is a secondary boycott. I tried to explain why I think that's a useful description and anticipated that those who, for some reason, hate the term might want to redefine the dispute as one between Epic and WMC supporters. To his credit, Paul Soglin takes up the point here.

The problem is that this deprives the term secondary boycott of any meaning. You can define any dispute that way. You can say, for example, that your dispute is with those who enable a stingy employer or a despised country like Israel by doing business with it or with those foster the bad policies of the Republicans or Democrats by being a member and participating in their governance.

But to think that solves the problem is formalistic and glosses over what may be problematic about a "secondary boycott" in the sense that I and other Epic critics have used it.

The point here is that Epic is saying that it won't do business with people for a reason that is extraneous to what normally would govern the relationship between them. It doesn't have a problem with J.P. Cullen as a builder. It has a problem with the politics that J.P. Cullen execs support.

Soglin argues that WMC "is" its board members, i.e., they make policy. The problem is that the same can be said of any organization with a board or large contributors. Under Soglin's view, folks who are upset with Summerfest for shutting down the Army's VAE should boycott Rite Hite and other companies with execs on the Summerfest board.

There is, as I explore below, a distinction between a corporation or partnership and its managers or partners.* But, more fundamentally,even if you want to view WMC as indistinct from it members, Epic proposes to punish Cullen and others for their political stance. People may have the right to do so, but do we really want to encourage a world in which many of our relationships are politicized?

Maybe Mayor Soglin thinks so. His contemporaries used to say that the personal is the political. Perhaps the commercial is as well. In response to an earlier post here, one thoughtful commentator (Amy, Esq.)made just that argument.

But I am not persuaded for a variety of reasons, one being that it will tend to drive people out of public life. Why be upfront about your beliefs or participate in public debate or try to promote what are, by your lights, good policies if it's going to hurt business? The other is it will tend to magnify our political differences and result in a political war of all against all.

Soglin think that for Epic to fail to act in this way would be unilateral disarmament:

Halliburton owns the vice presidency. A manufacturer threatens to leave the state if it does not get tax breaks. And WMC lobbies like hell at your and my expense.

That coercive power can be used for good or evil. Listening to Schweber, it sounds like unilateral disarmamanent is the solution. Businesses that are good should not use what power they have.

Putting aside the reference to businesses that "are good" (which I think gives away the game that this is about anything but politics), I am unaware that WMC has called on a politically based boycott of anybody. If they have, they should not have. Paul's "businesses that are good" can participate in the political process. They can set up PACs, give to the Greater Wisconsin Committee and, as he puts it, "lobby like hell." They can argue that, without light rail or higher taxes and all the good things that they supposedly bring, they may need to relocate to Vermont.

And, if they do get involved in this way, I don't propose that they ought to be shunned. Heck, I'd buy lots of Ben and Jerry's if my doc and the Reddess would let me.

And now for the irony.

Let's say that I don't want to politicize all my relationships but I think that the tone of the Supreme Court race was just beyond the pale. I don't want another race where organizations with an axe to grind bundle money from unknown sources and run ads which unfairly portray the role and actions of a judge.

Maybe - if I really believe this - I'll take the extraordinary step of boycotting those who have, in Epic's words, "supported with current management" those who ran these ads.

But one of the companies that I have to boycott may well turn out to be Epic Systems Corporation. As Lance Burri and the Cap Times point out, Epic CEO Judith Faulkner gave a large amount of money to One Wisconsin Now Action. We know that One Wisconsin Now was involved in the Supreme Court race - pushing a variety of fairly dubious attacks on Gableman that were echoed in ads run by the Greater Wisconsin Committee. GWC's ads were just as bad - if not worse - than those run by WMC. Did Faulkner give to such groups?

Of course we don't know. No one does.

So as Mayor Soglin says - let's pierce the veil. Given that Epic claims that its decision was about ethics and not politics, shouldn't it confirm that none of its current management supports - or has supported - the Greater Wisconsin Committe, One Wisconsin Now or any of the other "shadowy" groups that ran anti-Gableman ads? Will it "try" not to do business with those who have? I mean, after all, it's all about ethics and not politics.

*And now for some bonus irony. Paul Soglin says that WMC is its board members. He says, for example, that "Quarles & Brady is WMC" because one of its partners serve on the board.

But, at least at one point in its existence, on Soglin's view, Quarles & Brady was also the Greater Wisconsin Committee because my old friend David Cross was on its board and even served on its President. Dave has been with Quarles for 27 years. I don't know if he still serves on the GWC board, but you get the point. Quarles & Brady is not the political actions of its partners. If it is, then it apparently has multiple personality disorder.

Wednesday, July 09, 2008

Shining star for you to see what your life can truly be

Responding to my post on his finding political validation at an Earth, Wind & Fire concert, Mike Plaisted wants to know what I find "so funny about peace, love and understanding."

Nothing. I am strongly in favor of all three. But so is every conservative I know - even the dread Charlie Sykes who I have yet to hear, as Mike claims, give a lecture about "racism being understandable and black people getting what they deserve." To the contrary, what underlies his concern - and mine - about street violence is a strong conviction that black people - who are overwhelmingly its victims - don't "deserve it."

In the comments to his initial post on this, Mike had the following to say to me:

Actually, it would have done you all good, just as observers, to see a positive interracial event. It puts the lie to so much that you all hold dear about the "dysfunctional" black community and the impossibility of racial progress and harmony. And yet, these sentiments are scoffed at by the right as naive and worse.

Well, there goes Mike down Rodeo with a shot gun. But I hardly need him to show me "positive interracial events." I've been to quite a few. I attend one most every Sunday at St. Paul's downtown. Heck, if we want to speak strictly, my family gatherings are "positive interracial events" (well, at least most are positive) given that I have a black brother-in-law and nephew and an hispanic sister-in-law. (I used to have an asian sister-in-law too, but they got divorced. Not so positive.)Believe it or not, I've even got African American kids in my classes and I can't help but notice that are decidedly not dysfunctional. They all work hard. They all pass. Some of them even get "A"s.

Why he thinks that I in particular and conservatives in general think racial harmony and progress is impossible is beyond me. While it is certainly true that many conservatives oppose "strong" forms of affirmative action and the expansion of traditional social welfare programs, that is a disagreement about means rather than ends. While many believe that the failure to address cultural dysfunction in certain
parts of the black community is, however well intentioned, a cruel form of tolerance, so do lots of black leaders.

There is nothing funny about peace, love and understanding. But I think it includes recognizing that people who disagree with you are not morally retrograde wing-nuts "without souls."

No, actually, secondary boycott is a pretty good name for it

Paul Soglin thinks that he has embarrassed UW political science prof Howard Schweber by demonstrating that the term "secondary boycott" is "an important legal term that has a very specific meaning." Professor Schweber, who is also a lawyer and does public law at Madison, should never ever ever have used it to refer to Epic's stated intent to refuse to do business with vendors that support WMC.

I think Professor Schweber can hold his head up. The term secondary boycott is used in labor law to refer to a union that attempts to persuade others not to do business with an employer that it is, for example, striking. It is illegal (although the UFW was able to urge the boycott grapes and lettuce at grocery stores because agricultural workers aren't covered by the National Labor Relations Act.)

But that's not the only sense in which the term is used, either in the law or popular discourse. For example, this statute refers to the Arab secondary boycott of Israel, generally understood to be the refusal to do deal with companies that do business with Israel.

The point is that someone (say Epic) involved in a dispute with someone else (call them WMC) refuses - or calls on others to refuse - to patronize a third party (how about J.P.Cullen?) who does business with or has some other relationship with the target.

Professor Schweber did not claim that Epic was engaged in a secondary boycott that is prohibited by law. Although Soglin links to me and suggests I picked up the term from Schweber (I didn't), I took care to point out that Epic is, as far as I know, within its rights.

But it seems perfectly reasonable to call what Epic proposes to do a secondary boycott in the common - as opposed to technical - parlance. The direction of the boycott against a party once removed from the dispute is what distinguishes it from the Boston Tea Party (a bit of a complicated example - was the dispute with the East India Company or the Parliament that granted it special privilege?) or the Montgomery bus boycott.

I also tried to explain why I think the secondary nature of Epic's proposed blacklist is important. Refusing to do business with those who support others who do political things that we don't like threatens to politicize lots of our daily relationships. That is why I said that it stresses the social fabric. It escalates our political divisions. If widely adopted, it would imply that, before I do business with you, I need to know what you do in a variety of areas of your life that have nothing to do with the proposed transaction between us. Then I can decide if you are worthy of my patronage. This is why I said that, while people can do this type of thing, they mostly shouldn't.

Now, if Mayor Soglin really wanted to debate this as opposed to reiterating talking points (he does stay on message),he might argue that the boycott is not secondary because Epic had a dispute directly with Cullen, i.e, it did not like the fact that it supported WMC. But that strips the term of meaning. You can always recharacterize the primary dispute as being about supporting or doing business with the target entity. That leaves us right back in a world where the commercial is the political. J.P. Cullen does not become indistinguishable from WMC simply because it supports it or because a Cullen exec sits on the WMC board.

There is, in any event, no evidence that Cullen contributed to the ads that are supposed to be the basis for Epic's dissatisfaction with WMC.

Update:Professor Schweber does a pretty good job of elaborating on this here.