Tuesday, August 30, 2011

What Started the Argument - A Correction

One of the talking points on left-leaning blogs is to cluck about the fact that the disagreement that lead to the confrontation on the state Supreme Court was about when the Court's decision would be issued. It is, they say, somehow indicative of a lack of judicial independence that the majority wanted the decision out quickly because the state wanted it out quickly as revealed by, in addition to submissions to the Court (which the critics ignore), public statements by certain legislators. They cite statements by the dissenting Justices that the Court operates on "court time" and not "legislative time."

The critics are wrong.

It is not at all unusual - in fact it is admirable - for a Court to recognize that a matter before it is time sensitive, i.e., that asserted rights will be lost if a decision is not issued by a certain date or before a certain event. That was the case in Ozanne. If it was not decided by sometime in mid-June, the claim that the circuit court had interfered with the constitutional prerogatives of the legislature would have been mooted. Because of the looming deadline for passage of a new budget, the legislature would have had to take up the collective bargaining reforms for a second time. But the claim in Ozanne was that the reforms had been properly passed and that it was a violation of separation of powers for the circuit court to declare them to be invalid and enjoin their enforcement. In other words, the case had a shelf life.

There is nothing wrong with a court recognizing this and attempting to act promptly so that the rights of the parties will not be lost by the mere passage of time.

Monday, August 29, 2011

Shark on Public TV

Last Friday, I did a segment on Wisconsin Public Television's "Here and Now" regarding the law suit filed by the Madison teachers union and others raising state constitutional challenges to the collective bargaining bill. You can see it here.

The exchange gets a bit interesting at the end when I upped the ante a bit by referring to the argument that Act 10 interferes with public employees and rights of association as "Orwellian." I chose the word carefully. Mandatory dues or even fair share agreements force dissenters to support activities and political expression with which they disagree. ("Fair share" allocations generally turn out to support a lot of expressive conduct and many dissenters have an objection to collective bargaining per se.) Even forcing dissenters to "opt out" gives unions an enormous advantage over other expressive association.

Under Act 10, public employees remain free to associate for purposes of political expression. But the unions - as a potential vehicle for such association - are going to have to convince those employees that they ought to contribute to such expression and arrange to collect their voluntary contributions just as every other expressive association must.

Experience in other states tell us that vast numbers of public employees will decline to do so. That's not good for the unions but it seems like a vindication of associational and expressive rights which, of course, include the rights not to associate and not to speak.

Public charges and conferences

Having reviewed the transcripts of interviews with the Chief Justice and Justices Bradley, Prosser and Gableman, it is not surprising that no charges were issued. While the perceptions of the various witnesses differ, they tend to depart on very subjective points in which the witness characterizes the volume of someone's voice or the rapidity with which an action was taken - although there does seem to be disagreement as to whether Justice Bradley's fist was raised. Somewhat differing versions are not unusual in a case like this. What seems clear is that the Justice Bradley got in his face and he placed his hands on the sides of her neck to either push her away or halt her advance. There was no "chokehold."

Neither one of them behaved at his or her best. We all have our moments but it still would be nice if they would a issue a joint public apology. I don't think that's likely.

It is unfortunate that this became public and sad that it has and will continue to be used for political purposes. I hope that the justices can come to see that leadership entails backing away from this type of confrontation and getting to a point at which some measure of collegiality is possible is more important than scoring debating points or gaining strategic advantage.

What I don't see leading to that is making decision conferences public. Judicial decisionmaking requires deliberation aided by frank and open discussion. Althouigh decision conferences end in a vote, it entails an iterative process in which the judge reconsiders his or her preliminary or earlier expressed views. In the end, the rationale for a decision is expressed in a fully considered opinion. Forcing the justices to make their intial thoughts public will tend to short circuit the deliberative process and to inhibit frank discussion. The inability of members of the Court to get along is deep and pervasive problem that can't be solved by the simple expedient of open conferences. Sanitizing those conferences - and that's what making them public will do - wont' make it go away.

Wednesday, August 24, 2011

Rick Perry channels Thomas Paine

First, I don't think Rick Perry should have said that printing more money would be treasonous. We need less of that kind of talk. But look at this. Ralph Benko , writing at Forbes, reminds us of Thomas Paine opposition to fiat money. Acccording to Benko, Paine wrote:

“As to the assumed authority of any assembly in making paper money, or paper of any kind, a legal tender, or in other language, a compulsive payment, it is a most presumptuous attempt at arbitrary power. There can be no such power in a republican government: the people have no freedom — and property no security — where this practice can be acted: and the committee who shall bring in a report for this purpose, or the member who moves for it, and he who seconds it merits impeachment, and sooner or later may expect it.” “… and the punishment of a member who should move for such a law ought to be death.”
(emphasis added).

Interesting little factoid.

Tuesday, August 23, 2011

On chanting in Greenfield

I am a graduate of Greenfield High School and so I took special notice of the fact that police were called to a school board meeting. I haven't lived in Greenfield for over 30 years but it's always been a rather colorful community.

Apparently the problem was that the number of teachers who wanted to attend a meeting in which the board would consider work rules exceeded the capacity of the room. The board felt it could not change the location because of requirements of the open meetings law which, of course, requires notice of a meeting's location. In response, the teachers started to chant and shout but order was ultimately restored.

This prompts me to ask a question that I have asked before: What's with public chanting?Do we really think that, if we repeat the same silly doggerel over and over again we will finally persuade someone? Or is this just the adult (and political) equivalent of a child's temper tantrum?

Global warming, facts and disagreement

Megan McCardle channels Jonathan Adler on the politics of global warming. I agree with McCardle and New Jersy Governor Chris Christie in taking a more nuanced approach. Human activity has probably contributed to global warming but the extent of the effect and prognosis for the future is unclear, but unlikely to be anywhere near the Gorean nightmare. Many of the proposals to combat warming cannot be justified on the basis of their costs and benefits.

Of course, that's hard to translate into partisan politics and sometimes I think the obstinence of the right is caused by the fascism of the left in which no discussion of the facts or the desirability of remedy is regarded as legitimate. But the real problem, as McCardle points out, is choosing facts to fit a predetermined position.

Being honest about the facts doesn't mean that we'll all agree or that the "middle" view is always correct. Reasonable people disagree about the facts and is that disagreement - and not someone's moral character or self interest - that makes for political disagreement.

Sunday, August 21, 2011

Irish Fest Sunday

My column in the Milwaukee Journal Sentinel is here. But enough of The Troubles, it's Irish Fest.

Wednesday, August 17, 2011

Walker: Winning!

I'll have a column in Sunday's Journal Sentinel on the recalls. Both sides are claiming victory but there are two telling facts. The first is that Republicans are happy with the outcome and Democrats are not. That shouldn't surprise anyone. You don't spend millions and millions of dollars to pick up two Senate seats.

Second, when Obama overreached he lost a house. The supposedly "historic" Wisconsin recalls were outperformed by the ... Tea Party!

To be sure, the Dems drew some blood. The Walker reforms are controversial and step on the toes of some very powerful constituencies. When you can cherry pick Republicans in the most vulnerable districts and then bring national money to the table, you ought to be able to draw some blood. But the bottom line remains.

Governor Walker stuck to his guns and has, so far, surivived everything the left can throw at him. That is, in the words of Charles Sheen, winning.

Tuesday, August 16, 2011

London Calling

I missed the riots in London. All I got to see was a heavier posting of the Metropolitan Police and a lot of thumbsucking on the BBC and Sky News. Cable news is the same all over.

If you've followed the story, you know the debate. Labour wants to blame cuts and inadequacies in social programs. The Tories point to an initially inadequate police response (that it was inadequate seems indisputable although who is to blame for that is another question) and cultural breakdown. We've got the same debate over unrest here although the social welfare state in the UK is far more extensive than ours. There may be a lesson in that. The value of handouts evaporates.

One thing that surprised me, however, is how much of the rioting was videotaped. There are apparently 60,000 cameras around London - 7000 operated by the government - and these CCTV cameras caught a lot of the action. Broadcast of the faces caught on camera has led to some arrests but it's too little too late. The "yobs," as they are often called in the local press, often wear hoodies and bandannas. The riots in London ended when Scotland Yard annnounced that they were going to put 16000 cops on the street.

Thursday, August 11, 2011

Celebrating across the pond

I enjoyed the election returns from England. Beyond the pros and cons of the Walker reforms and budgets, I think it's a good thing that control of the legislature did not flip based on a policy choice by a newly elected majority, Had the thing gone the other way, I think it'd be a long time before any administation in this state would have made any tough decisions.

But enough with the common good, who won? Upon my return, I was astonished at the lengths to which the local left has gone to claim victory. They do have something to talk about. They did pick off two Senators. Pending the outcome of today's recalls, the new Senate is not as reliably conservative but we shouldn't make too much of that. While it may preclude significant movement on the Walker agenda, that was unlikely in any event. The legislature tends not to do all that much once the biennial budget has been passed.

On the other hand, the August recalls were almost custom made for the public employee unions. A special election in the middle of the summer maximizes the advantage of those who are highly committed to a particular outcome and who can run a great ground game. This is where the unions are supposed to excel and they went all in. The point of that was not to make Dale Schultz the swing vote on a handful of potential issues, it was to obtain a repudiation of the Walker agenda that only flipping the Senate could deliver. Notwithstanding the help they got - Randy Hopper's personal immolation and the failure to field a credible candidate against Dave Hansen - millions and millions of dollars devoted to class warfare did not even return us to the pre-Walker Senate.

That's failure.

Friday, August 05, 2011

Much ado about nothing

Another point on the "fraud" stuff. As I blogged earlier this week, I don't know who AFP sent its supposedly "fraudulent" absentee ballot application requests tom but I do know that at least some of the the breathless indignation over the matter is largely borne of a failure to understand how political organizations work.

There is apparently consternation over the fact that AFP's request listed the "wrong address" for voters to which voters should return their applications. The address turns out ot be a post office address held by Wisconsin Family Action.

It was not the "wrong address." These organizations send ballot applications to persons who they have identified as likely to be sympathetic voters. They ask that the applications be returned to a "processing center" which is something that they set up to then send the applications to the various municipal clerks. As I understand it, the reason that they do this is so they can provide voters with something that is almost effortless to fill out and return. In addition, it tells them who has requested the ballots and they can then use that information in their ground game and in future elections.

In all cases, the goal is to have these requests made by people who they believe will support their candidates. I have gotten numerous ballot application requests that are to be returned to "Box 1327" in Madison and these requests are generally accompanied by some content likely to appeal to conservative voters. Dane101, for example, in its "expose" notes that Wisconsin Right to Life sent out requests to be returned to Box 1327.

So it did. It is just to my right as I type this. It urges me to return the request in order to retain a pro-life majority. I am pretty sure that it is not an attempt to keep Democrats from voting.

But, Dane101 notes, didn't the mailing go to at least two card carrying Democrats?

Sure. Almost all mailings by almost all advocacy groups go to people who disagree with them. I know that AFP mailings, for example, go to people who are not "AFP members" because I get them all the time and I have never joined AFP. People routinely sign up for the other side's stuff or do something that gets them on the opposition lists. I get e-mails and mailings asking me to "fight for a Democratic majority." I don't know why and, if some of the people whose names are attached to those mailings knew they were being sent to me, they'd be mortified. I didn't request any of them but I guess I did something that causes them to come to me.

Apparently even Steve Colbert fell for this. I have always found Colbert to be predictable and sophomoric- anything but the smart and edgy guy that he's supposed to be. Thre are comedians who are funny even when they say something you disagree with. Jon Stewart is one. Colbert,a at least what I've seen of him, is not. Here's a little example of why tha may be.

There is reason to be upset about the AFP mailing because they still screwed up the dates. But the reason is not fraud. It is error in a very tight election cycle. And the people who ought to be upset are not liberals but conservatives.

Thursday, August 04, 2011

One of these things is not like the other

So what about allegations of Wisconsin Right to Life providing gift cards to people who obtain absentee ballot applications. Isn't that just the same as "ribs for votes?" Am I going to condemn that? Hypocrisy! Hypocrisy!

Well, no, I'm not condemn it because it's not the same thing. The statute prohibits providing a thing of value "to, or for, any elector, or to or for any other person, in order to induce any elector to ... [g]o to or refrain from going to the polls." "Let's work through it.

Let's get pass the easiest part first. WRTL, unlike Wisconsin Jobs Now, did not provide anything of value to an elector. It is offering something to a volunteer for getting out the vote of others. But couldn't we argue that they have provided something of value to "any other person" in order to induce an elector to vote.

I don't think so. First, it requires us to ignore an intermediate step that breaks the connection between the offer and the decision to vote. The offer is being made to someone other than the voter to induce her to do something other than vote. Additionally, such an interpretation would, as we say, prove too much. It would preclude providing anything of value to anyone in return for getting out the vote, including paid canvassers.

I would have advised WRTL not to allow volunteers to count their own absentee applications or those of their immediate family members in the number required to get a gift card. I don't know that they did that and I'm not suggesting that, if they did, the scheme is illegal. An absentee ballot application is still removed from voting in the way that a ride to the polls is not. But I think that would have been an appropriately conservative thing to do.

Shark on Dead Tree

My Milwaukee Journal Sentinel column on the recall elections is here.

I note from the comments that one local blogger seems to think that its incongruous that I would criticize campaign ads for being inaccurate since I supported (actually I voted for) Mike Gableman. The fact is that I criticized Gableman's Reuben Mitchell ad at the time it was run. In fact, my criticism - and that of Charlie Sykes - were cited by Rob Henak in support of his motion to recuse Justice Gableman in the Allen case.

Tuesday, August 02, 2011

Swilling the Voters with Bumbo

You've got to give 'em credit. The "Ribs for Votes" scheme has a long pedigree. According to Tracy Campbell's book Deliver the Vote: A Historuy of Election Fraud, An American Political Tradition - 1742-2004, both Washington and Jefferson tried this type of thing. Back then, swag was provided at the polls. According to Campbell, Washington, in running for the Virginia House of Burgesses in 1758, spent nearly 40 pounds (real money back then) for gallons of wine, rum, brandy and beer. Washington's only concern was that his campaign manager had "spent with too sparing a hand." I turst that WisconsinJobsNow - whoever that may be - will not make the same mistake.

Jefferson dis it too, buying liquor for voters in his own race and anticipating the lame excuse offered by today's offenders. He saw the hootch as a reward for those who had taken the time to travel to the polls (which were often quite distant) and vote. A bit more convincing than the contemporary dodge that barbecue and prizes are a "celebration of voting" - but not much.

Still the Founders were not all in on this. Madison refused to do it in is 1777 race, calling "swilling the planters with bumbo" a "corrupting influence." He must have been right because he lost that race.

But he won the argument and, as has been pointed out, this practice, however old, is illegal. Sec. 12.11(1m)(a)1 applies to anyone who "[o]ffers, gives, lends or promises to give or lend, or endeavors to procure, anything of value, ... to, or for, any elector, or to or for any other person, in order to induce any elector to ... [g]o to or refrain from going to the polls." Do this and you've committed a Class I felony punishable by a fine of up to $ 10,000 and imprisonment of up to 3 and a half years - more if you've got record.

The organizers of these bribery parties say that they're in the clear because someone could come to the party, take the goodies and not go vote. The GAB disagrees and it does seem that the events offered and gave an "inducement" to vote.

There is no way to unring the bell and it is extremely unlikely that this type of fraud would ever justify setting aside the results of an election. That almost never happens.

Because the electoral consequence cannot be avoided, it would seem to present a rather strong case for vigorous prosecution. It is also essential, in political cases, that where there is a clear violation of the rules, officials act quickly. To do otherwise is to essentially excuse the violation and encourage more of this type of thing in the future.

But there may, moreover, be a political price to pay. I see an ad about out of state special interests bribing voters. Not pretty.

Are GAB's chickens coming home to roost?

I have no idea if Americans for Prosperity or the Democratic Party were trying to mislead people on the date of the elections. But there is a certain irony that complaints about whether they have done so will go to the Government Accountability Board. The GAB's breathtakingly bad decision to bifurcate the recalls on a partisan basis is not a necessary condition for that kind of mischief, but it certainly enables it.

It also makes it possible honest errors about when to vote.

I don't think this is the last we'll hear of confusion and accusations of trickery related to the dates of the recalls. I'm not accusing the GAB staff of partisan bias but I do think that they were guilty of very poor judgment.

Monday, August 01, 2011

Budget Deal is OK - for now

The pending debt deal is small ball. That's what makes the angst over its passage so astonishing. Cutting two trillion dollars in spending over ten years - if we really are cutting that much for in the fun house world of Washington accounting it's tough to know - is not trivial but it leaves the largest challenges untouched. That it took this much to get that little may be seen as an indictment of our political system, but I regard it as an indictment of the Democratic Party.

It's a popular Democrat trope about now to wonder "what happened" to the Republicans. In yesterday's New York Times, Tom Friedman gets misty for George H.W. Bush for being the kind of Republican who supports what liberal Democrats want to do. He believed in math and science, says Friedman. Friedman's math apparently requires that government spending not be permitted to fall below a certain percentage of GDP and that budgets may not be brought into balance without tax increases. His science admits only of the more extreme views on climate change and requires that we ignore insights from economics and political science which suggests that a cap and trade scheme on something as pervasive as carbon emissions is likely to be a disaster.

The problem with Republicans, we are told, is that they just won't raise taxes even on rich people who, being rich, don't need whatever additional money "we" may decide to take from them. The problem, of course, is that we already have a highly progressive tax system in which a large percentage of the population pays no income tax. Upper income persons already bear a substantially disproportionate share of the tax burden. While I suspect that some tax preferences will have to be looked at and that it may be inevitable that the Bush tax cuts will be permitted to expire for some upper income taxpayers (although, hopefully, not for those "millionaires and billionaires" who earn $ 250000), this is largely a spending problem and Republicans were right to take tax cuts off the table given the relatively modest spending reductions under consideration.

But, in the end, I agree with Charles Krauthammer and others who argue that this is the best that can be done for now. You cannot govern from the House of Representatives. It is amazing that Republicans were able to accomplish what they did. They have as Nicole Gelinas points out, demonstrated that "[w]e can’t spend what we plan to spend in the future without harming the character of the country." As Victor Davis Hansen observes, they have returned reality based views to the budget debate and largely rendered President Obama irrelevant.He and the Democrats became the "party of no" without a coherent vision of their own. We now that they don't like Paul Ryan's Roadmap or, presumably, any variant of that approach. We still don't know what they do like other than to continue the unsustainable.