Monday, August 30, 2010

Ron Johnson: A Good Kind of Scary

With the start of classes, I took an extended blogging break. But the main theme of the local political blogs on the left has continued to be saturation bombing of Ron Johnson. Ron is not a politician, lawyer or academic and has not yet mastered the art of phrasing his views in a way that will minimize the ability of his opponents to twist them with uncharitable interpretations.

His statement on global warming is an example. It is an overstatement to say that claims of anthropogenic global warming are crazy, but it is perfectly "respectable," i.e., there is lots of scientific support, for the proposition that the claim - or at least its more alarmist manifestation - is unproved. (In fact, I think you can argue that Al Gore's views on global warming are just as scientifically flawed as the weakest of the "deniers.") One might express that, off the cuff, by saying that the claim for AGW is confounded by other impacts on the climate such as solar activity or the very long term climate changes that we know occur but for which we have very little data. While it is unlikely that Greenland was "green" when Lief Erickson tried to sell beachfront realty in Baffin Bay, it was significantly warmer.

Much the same silliness has accompanied the irrelevant accusations regarding Johnson's company benefiting from industrial revenue bonds and his statement that they are not a "subsidy." There is, of course, a subsidy in the sense that, because the state will not tax the interest earned by bondholders, they are willing to accept a lower interest rate. But not everyone would regard the advantages that flow from an absence of taxation as a subsidy. My house undoubtedly has a higher value than it would if potential buyers could not deduct their mortgage interest.

One can argue that IRBs are a bad idea, but wrangling over the use of the word "subsidy" doesn't get us anywhere.

Yet another example is the uproar over Johnson's use of the term "creative destruction" - a phenomenon that all economists recognize - as if it were some radical and evil right wing plot. There is a reason that we don't have many blacksmith shops or typewriter manufacturers and it is a good thing.

Imprecise and hyperbolic statements are something that all politicians - heck all people - engage in. There is, for example, no reasonable reading of anything that Ron Johnson ever said that supports Feingold's claim that he would "turn the Great Lakes over to oil companies." Even if Johnson would support extraction of whatever fossil fuels are located in the lakes, that is a far cry from "turning them over" to "oil companies."

The point of this is to make Johnson seem stupid or scary. So far, it's not working and I doubt it will. Ron Johnson is scary in one sense, though. He's got Democrats petrified.

Thursday, August 19, 2010

McCabe's "Dark Comedy" is Neither.

It's always dicey to comment on a case in which one serves as co-counsel, but I ought to at least correct the numerous errors in Mike McCabe's description of the state Supreme Court's actions in Wisconsin Prosperity Network v. Myse. These errors are quite apart from the merits of the claim.

First, it is not quite right to say that a federal court had taken the case and "started hearing it." It might have done so, but the status at the time of the Supreme Court's action is that the federal judge had declined to proceed, i.e., had refused to enter a stipulated order settling the case, until the parties had addressed certain concerns about his ability to proceed. I described those concerns here and, as someone who teaches Civil Procedure, I can tell you that they are not "mere" technicalities and are not readily dismissed.

Second, it is flat out false to say that the Supreme Court "overlooked a proposed settlement of a federal lawsuit ...." It did not. It expressly asked the parties to address how the pendency of two federal lawsuits affected the petition for original jurisdiction and both parties addressed the significance of those cases and the proposed settlement. We also addressed the fact that Judge Conley has declined to enter the stipulated order.

Third, it is flat out false to say that the Court's majority ignored "principles of comity" (although it is absolutely true that McCabe has little understanding of what those principles mean in this context). As noted above, it asked the Court to address the pendency of other cases. Beyond that, state courts do not defer to federal courts on matters of state law. It is, in fact, the other way around and one of the reasons that Judge Conley declined to enter the stipulated order was his concern that principles of comity required that the federal court stand down. (Without getting into the inside legal stuff, there is a doctrine called abstention that may well require the federal courts to step aside.)

Fourth, it is flat out false that the petitioners did not request a preliminary injunction. We did. Read our petition. The controversy was whether the Court might enter an injunction before deciding to exercise its original jurisdiction. Judge Prosser's concurrence explains why it may do so.

Fifth, it flat out false that the Court went "above and beyond the relief sought by the petitioners." Our supplemental memorandum made clear to the Court that we did not believe that the proposed settlement resolved our claims.

Sixth, it is flat out wrong to suggest that any member of the Court has a conflict of interest. There is absolutely no authority for the proposition that a justice must recuse herself from a free speech case because she might, in a subsequent election, might expect to benefit from the challenged speech. Beyond that, the type of expenditures that McCabe does not like were made on both sides of the last three campaigns and there is no reason to expect that any particular Justice would, on balance, benefit or be harmed by such speech. (In fact, one could as readily argue that all seven Justices enjoy the advantages of incumbency and would be personally served by as little campaign speech as possible.)

Seventh, it is misleading to suggest that, in not deferring to a proposed settlement that may or may not be entered, the Justices are siding with "big interest groups." The settlement was agreed to by two of the biggest advocacy organizations around (who, in my view, were clearly entitled to the relief they requested. While such groups might certainly have problems with those portions of the rule that the settlement did not touch, it could be argued that the remaining regulations really hurt small grass roots speakers who will be engaged in forms of communication other than mass media adverts.

Eigth, it is shabby and classless to impugn the motives of any member of the Court. Each of these Justices (and I include those who dissented from the order enjoining enforcement of the rule) are just doing their jobs. Some of them may get it wrong (even spectacularly so)but there is no evidence that any of them are acting for their personal benefit.

Of Mosques in Lower Manhattan

I posted on the "Ground Zero Mosque" controversy over at the Marquette University Law School Blog. Essentially, I think that the illegality of the state blocking an Islamic Center because it is Islamic is absolutely clear. I do believe that there are legitimate reasons to question the wisdom of placing the project so close to Ground Zero, but I worry about the "precedent" (cultural not legal) that would be set by withdrawal of the project in the face of public pressure. I am not comfortable with people being forced to back down from the exercise of their rights of free speech or religion as a result of public pressure and that applies to the Cordoba project as well as systematic efforts to, for example, ostracize supporters of California's Proposition 8 or boycott persons or organizations who contribute to the wrong candidate.

Perhaps the controversy could have been avoided had Mayor Bloomberg and other NYC officials recognized the potential problem earlier and engaged the sponsors on the issue or if the project's sponsors were more attuned to the legitimate concerns that the project raises and more willing to take steps to defuse them. But, as things stand now, whatever the resolution of this controversy turns out to be, it will be less than ideal.

My own sense is that, rather than call for the relocation of the project, the project's sponsors ought to be called upon to acknowledge its symbolic dangers and to take steps to diffuse them such as incorporating into the project a prominent condemnation of the concept of violent jihad (explicitly linked to 9-11) and a call for those who engage in it to repent.

Wednesday, August 18, 2010

Who Played the Race Card Here?

I was wondering - really wondering - what got Mike Tate so upset. What did Scott Walker do that amounted to a "calculated defiance of our state's deep tradition of tolerance ...."

It turns out that someone in his campaign tweeted a music called "C'mon, Ride the Train" and the dancers in the video were African American. There's a postracial response for you. I get it. If there are black dancers, the video is supposed to reduce the President to his race, but that's an interpretive choice and not a very compelling one.

Given our sensitivity on racial measures, I wouldn't have done it but I hardly think that the fact that some one chose otherwise is racist or "in defiance" of our tradition of tolerance.

But to help things along, I suggest that the Walker campaign use the following video.

Tuesday, August 17, 2010

The Future's So Bright, I Gotta Wear Shades

Cue the derision for Ron Johnson has challenged orthodoxy. In a head posted last night, the Journal Sentinel claims that, in a meeting with the editorial board, Johnson supposedly claimed that "sunspots are to blame for global warming."

It's not clear that's quite what he said. He is quoted as stating that he does not believe that there is anthropogenic global warming and that "[i]t's far more likely that it's just sunspot activity or just something in the geologic eons of time ...."

But he threw the sunspots out there and, rather predictably, some local bloggers have started to chortle.

But here's the thing. That solar activity, as measured by sunspot activity, may have an impact on climate is not a new claim and not at all crazy. The claim is that sun activity is positively correlated with temperature increases. Some argue that this undercuts claims for AGW. Others say it does not, noting that sun spot activity cycles over the short term while temperature increases have been long term. (Although still others claim that the sun has had an unusually active century.) As seems so common in this field, they argue that the "solar advocates" (for lack of a better word)have been sloppy with data. Still others seem to say that solar activity is a confounding factor or may ameliorate the impact of AGW. Some (even the IPCC) think solar activity plays a role, but argue that it cannot explain more recent warming trends.

The fact that scientists differ does not, of course, mean that each side has a point. Sorting through all of this would take time and expertise and I will guarantee you that no local blogger has done the work necessary to definitively pronounce on this.

I take Johnson to be making a more general point. Questions around AGW are complex and multi-faceted. Data is limited. There is reason to doubt that we can be as certain about AGW as an existential crisis as some would claim. There is reason to doubt that we can control climate through policy choices.

Ironically, the Journal Sentinel, in providing Russ Feingold's take, catches him committing a cardinal sin according to the environmentalist canon. His take? ""Do you notice the heat lately, my friend?"

Please, Russ, WEATHER is not CLIMATE !!!!

Monday, August 16, 2010

MMSD As A Rohrschach Test

The recent debate over the deep tunnel is largely being waged between people who are committed to a particular view, not because of an assessment of the merits of the system, but because they want to use it as an example of either government competence or fecklessness.

Thus Milwaukee Magazine's Bruce Murphy calls the debate over the tunnel "phony" and he and other commentators on the left claim that the tunnel has "worked as planned."
Commentators on the right suggest that it has been a complete failure.

I used to know a lot about the deep tunnel. I represented MMSD in its battle with the FLOW communities over how the deep tunnel was to be paid for. We wound up trying the matter before the Public Service Commission in winter of 1996 (I think I spent the better part of January in Madison) and won.

Trying the case required paying a lot of attention to the process by which the deep tunnel was approved. The FLOW communities (suburbs who receive service from the district but who are not part of it - generally the closest suburbs outside Milwaukee County) argued that they had been promised that the cost of the tunnel would be paid on the basis of volume generated rather than the value of the property served. The difference cost them approximately $ 140 million. At a celebratory dinner, one of our clients asked the waitress if she could cash (a facsimile) of the check. (Adult beverages had been consumed.)

That was the right outcome. In legal terms, one cannot assert estoppel against the government and the FLOW communities, in any event, had little recourse. State and federal regulators would never have let them make other service arrangements.

But it has created an atmosphere of hostility and suspicion. The FLOW communities argued that the deep tunnel was an bad alternative to separating the combined sewers which, and this is important, would have been the responsibility of the cities of Milwaukee and Shorewood who "own" those sewers. The suburbs believed that Milwaukee had shifted the cost of its problem to the them.

I haven't gone back to those records (they are voluminous and anyone who hasn't spent days with them hasn't really studied them) but, suffice it to say, that the public was told a number of things and one of the things they were not told is that there could still be billions of gallons of untreated sewage released into the lake on an annual basis. Although Murphy and others emphasize that certain documents projected 1.4 annual overflows and there has actually been 2.6 - down from 50 or 60 before the tunnel's construction.

That is indeed a significant reduction. While MMSD's own figures show that the reduction is less dramatic in terms of volume released into the lake, it is still very substantial. The tunnel is not a complete failure.

On the other hand, no one really thinks that it works "as planned" either. 2.6 overflow events is almost twice as high as projected and the actual volume of sewage released into the lake may be even higher versus projections.

What people disagree about is why the tunnel hasn't been as effective as planned. MMSD wants to blame something called "infiltration" and "inflow" (there is actually a difference between these two that I used to understand far better than I do today), - the fact that sanitary sewers develop leaks and take on ground and storm water.

The problem is that these concepts were not invented in 2010. The deep tunnel's planners were well aware of infiltration and inflow (I spent hours reading about it) and purported to take into account in planning the project.

The debate today over who is at fault for overflows matches the earlier controversy between the city and suburbs. Both sides are pointing the finger at the other when, actually, water is fungible. The district manages the system to try and ensure that whatever overflows occur are from the combined sewer area (you can't blame it for doing so; it's what their permit requires)but the truth is that the capacity of the tunnel is taxed by both sources of "excess" water.

So partisans of government tend to blame the suburbs and absolve MMSD. As Patrick McIlheran points out, they adopt a forgiving attitude toward the "inevitable" overflows that they generally don't show in other contexts. Imagine, for example, an argument that - given the enormous volume of oil extracted from the Gulf of Mexico - an occasional spill such as we saw with BP really reflects an admirable environmental record.

But those disposed to distrust the government overemphasize the tunnel's shortcomings. I think it's a step too far to say that it has worked as planned, but it's also wrong to suggest that it is a complete failure.

Friday, August 13, 2010

Perry And the Definition of Marriage

In response to my earlier post on Perry, Sean Samis suggests that the question is not "what marriage is for" but whether we can justify excluding same sex couples from its scope. My view is that you can't answer the latter without addressing the former. Writing in Commonweal, Rob Vischer puts it well:

More broadly, if courts are to be tasked with charting the course of society’s foundational institutions by tallying “harms,” it’s important to ask what have we lost in the process. The question “What is marriage?” may not lend itself to easy answers or evidentiary proofs, but it is an essential question, one that societies have been addressing for centuries. Citizens today disagree with the views of earlier eras, just as citizens even ten years from now will likely disagree with ours. The cultural and ultimately political processes by which the history of civil marriage continues to unfold is messy, halting, and frequently infuriating to participants of all ideological stripes. But replacing those processes with one judge’s evaluation of a few expert witnesses carries a cost. Courts have played a role in shaping civil marriage in past eras, particularly regarding interracial marriage, but not in redefining an element of marriage deemed non-negotiable by a broad swath of society spanning many otherwise disparate historical eras.

Of course, Judge Walker adopted a defintion of what marriage is for based, as Rob puts it, on the testimony of a singular historian. I have read her testimony. It describes certain changes in marriage law. It hardly resolves the question of what marriage is for. In fact, it would seem that the more current actions of the political brances - and of the voters of California acting by referendum - would be more significant on that question.

Perry Prognostications

In response to a post on the decision in Perry v. Schwarzenegger, a mini debate on same sex marriage has broken out in the comments. I really haven't had time to follow on them although I have started to read through the trial transcript in Perry. Since I developed a specialty in the cross examination and refutation of social science experts at Foley, I have been interested in the uses and misuses of social science in trials.

I haven't completed the transcript but the record hardly matches Judge Walker's bold pronouncements that social science has resolved a number of highly controverted issues "beyond a doubt." In fact, the transcript seems to reflect the fact that social science has resolved very few of the questions pertinent to same sex marriage.

Now the Judge has announced that he doesn't think that the defendant-intervenors can appeal. He might have been better served by declining to comment. He doesn't get to decide whether they can appeal and his pronouncement, while arguably relevant to the defendant-intervenors' request for a stay, just contributes to the general impression that he had this case decided before it started.

All of this suggests that the case is a mess. Those parties who one would have expected to defend the law of California - the Governor and Attorney General - declined to do so. The defendant-intervenors put on a curiously truncated case and the district judge relied on a very thin record to find some truly startling facts (e.g., gender is not central to the definition of marriage and has nothing to do with parenting)which, it will now be claimed, are entitled to deference on appeal. This flawed vehicle is supposed to be the basis on which the Supreme Court resolves - for all Americans everywhere - the question of same sex marriage.

The case actually reminds me a bit of Bush v. Gore. Quite apart from whatever legal doctrine required, it was an abomination with Florida proposing to conduct a partial recount calculated to favor the Democrats (even though, as it turned out, it would not have been enough to put Gore over the top). I just don't see Perry resulting in a SCOTUS determination that same sex marriage is constitutionally compelled. In fact, it wouldn't shock me if that position gets only two votes.

Thursday, August 12, 2010

GAB Law Suit - What's Going On

Because I have joined as counsel in one of the cases challenging new GAB Rule 1.28, there is a limit to what I want to say on a blog. But recent developments around the attempt to settle one of the federal cases raise a set of issues not readily accessible to the general public. Here is where we are.

The plaintiffs in Wisconsin Club for Growth v. Myse entered into a stipulation agreeing that the judge could enter a permanent injunction against enforcement of part of the rule that essentially creates an irrebuttable presumption that ads containing certain types of communication are express advocacy. That part of the rule seems, as I have blogged, to be clearly at odds with Supreme Court precedent, although the stipulation did not include an admission of unconstitutionality, saying instead that the injunction would satisfy the plaintiffs claim that the rule was not authorized by the state legislature. The plaintiffs' consitutional claims would have been dismissed without prejudice (i.e., they could be filed later under proper circumstances).

For a variety of reasons, this outcome, while certainly welcome to our clients, did not go far enough to alleviate their concerns and we so informed the Supreme Court. But, at the same time, Judge Conley announced that he would not enter the injunction until the parties addressed four seperate concerns.

Two of these concerns are rather technical having to do with the subject matter jurisidiction of federal courts and the proper relationship between federal and state courts. The latter concern has to do with whether a federal court should act when there is a pending state court proceeding (our original action in the supreme court) in which important state interests are at stake and the pertinent consitutional claims may be litigated.

The second set of concerns are more related to the merits although Judge Conley's concerns suggest no particular view of the merits. The court expressed concern over whether it could enter an injunction against an administrative rule without a finding on its legality and whether he ought to do absent an opportunity for other parties to be heard.

Briefs on these questions are due next week. More to come.

Monday, August 09, 2010

State Court Challenge to GAB Rule

This afternoon, Jim Troupis (with his brother Christ), Michael Dean and I filed a petition for original action in the Wisconsin Supreme Court challenging the constitutionality of new GAB Rule 1.28. A copy of the filing is here.

The Problem With Perry

Last week, over at Point of Law, I posted on the limitations of social science evidence in the context of Perry v. Schwarzenegger. Judge Walker's decision strikes me as an obstinate refusal to understand what the advocates of Proposition 8 were trying to tell him. Yes, the decision is 138 pages but it is full of question begging and high spotting. A column over the week end by lawprawf Nelson Lund puts it well:

The judge in this case thinks it was proved at trial that same-sex marriage will not amount to a sweeping social change. He thinks it is "beyond debate" that same-sex marriages will have no detrimental effects on the institution of marriage. Can anyone really believe that such things can be proved by witnesses in a courtroom?

Lund notes, that in Walker's view, a majority of Americans, including our President and Vice President, are in the grip of an irrationality that is tantamount to bigotry.

In today's New York Times, Ross Douthat summarizes what the debate is really about:

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.

But based on Judge Walker’s logic — which suggests that any such distinction is bigoted and un-American — I don’t think a society that declares gay marriage to be a fundamental right will be capable of even entertaining this idea.

This makes same sex marriage a subject on which reasonable people can differ. The reductionism exhibited by Judge Walker obfuscates and coarsens our discourse.

Friday, August 06, 2010

Shark on Public TV

I recorded a brief segment on Wisconsin Public Television's Here and Now this afternoon. The topic was the new Governmental Accountability Board rule on issue advocacy. Mike McCabe of the Wisconsin Democracy Campaign took a differing view. By way of errata, I may have referred to the 2006 and 2008 elections, when I meant the 2006 and 2004 elections.

Tuesday, August 03, 2010

Suit Against GAB Is Serious

In a heartwarming union of the lion and the lamb, the Club For Growth and One Wisconsin Now have come together to sue the Government Accountability Board over a new rule requiring organizations and individuals to register and disclose the source of their funds if they spend more than $ 25 on communications for "political purposes" during a certain period prior to an election.

Mike McCabe of the Wisconsin Democracy Campaign pronounces the suit to be "baseless and frivolous." He's wrong and here's why.

It is absolutely true that the United States Supreme Court upheld disclosure requirements with respect to "express advocacy," i.e., communications that expressly call for the election or defeat of a named candidate or that can reasonably be construed in no other way.

But there are at least three problems with the application of that holding to this rule.

First, the authority of the GAB is limited by statute. It may only regulate what the legislature has said it may regulate. In this case, the statute places restrictions on communications for a political purpose which include, but are not limited to "communication[s] which expressly advocates the election, defeat, recall or retention of a clearly identified candidate.” The question becomes what else might be included in the category of communication for a political purpose.

The GAB will undoubtedly point to statutory language that says that an act is done for political purposes when "done for the purpose of influencing the election or nomination for election of any individual to state or local office ...." The problem is that, in Wisconsin Right to Life v. FEC, the United States Supreme Court rejected the idea that the presence or absence of regulation might turn on an examination of the intent or the speaker or the effect upon the audience. The uncertainty of whether a form of speech is in or out might chill protected speech.

While the regulation at issue here involves disclosure and not a limitation on the source of the funds, a court might well say that the GAB is authorized to regulate only those communications that meet the meaning of express advocacy as clarified by the United States Supreme Court.

Perhaps recognizing that, the GAB tries to both adopt and expand the WRTL's definition of express advocacy. First, it says that a regulated communication is one that meets WRTL's definition. Then, perhaps in response to the concern that such a definition would cover almost no independent communications that are actually made in the real world, it says that a communication is within that definition if it references or depicts a candidate within the relevant period and"

1. Refers to the personal qualities, character, or fitness of that candidate;

2. Supports or condemns that candidate's position or stance on issues; or

3. Supports or condemns that candidate's public record.

That is arguably inconsistent with WRTL's definition of express advocacy. While it's true that the ad in WRTL did not restate and criticize a candidate's position, it seems inconsistent with the notion behind separating issue from express advocacy to say that the former may not call upon a candidate for public office to change his or her position.

Second, assuming that the GAB is within its statutory authority, the question turns to whether the disclosure requirements burden speech. Citizens United informs, but doesn't resolve the question, in that it dealt with WRTL express advocacy. The state's interest in identifying those who are expressly advocating the election or defeat of a candidate may not be as strong as the interest in identifying those engaging in issue advocacy. CU can be used to argue that it is, but it didn't resolve the question.

One might also argue that disclosure does not burden speech. That seems wrong. The law imposes administrative costs on the speaker and subjects donors to the risk of public ostracism. We know that this burden does not render disclosure requirements facially unconstitutional when we are dealing with express advocacy. But issue advocacy is another matter.

Third, the reach of the rule is extraordinary. It doesn't merely apply to persons or or organizations who buy airtime but to bloggers and writers and people who print up handbills.

Silly Issues

The 24/7 news cycle and the pressure for pundits and operatives to produce content leads to the raising of increasingly silly issues. Here are a few.

1. Scott Walker didn't finish his last year of college. For the life of me, I can't understand why anyone who has actually experienced the last year of college would find this persuasive. Would Walker be more qualified had he spent one more year of his life doing beer stands and acing "The Goldberg Canon: Making Whoopi" and "Underwater Basketweaving."

2. Ron Johnson liked Atlas Shrugged but Ayn Rand Was Creepy Yes, she was and Bill Douglas was a jerk, Margaret Sanger favored eugenics and Clarence Darrow bribed jurors. So if you believe in the penumbral right to privacy, support Planned Parenthood or liked Inherit the Wind, don't be running for office.

3. Ron Johnson invited Charles Murray to speak about education in Oshkosh. Murray was to speak about a recent book in which he argues that education of the academically gifted in the US is deficient and that many students who are encouraged to go to college might be better served by technical education. To even suggest this apparently gives some people the vapors. So much for free inquiry and discourse.

4. Ron Johnson won't sell his BP stock. Because if he would now sell low after he bought high, that would mean that the Deep Horizons accident ... didn't ... or wouldn't ... happen or won't happen again ... because ... otherwise it's been a good deal for BP. Or maybe BP stock has the cooties. Let's all lose money on BP stock. That'll show Tony Hayward.