Wednesday, April 25, 2012

Carroll's Wall

I've been wondering about why the "hate wall" at Carroll college - castigated by Charlie Sykes and celebrated by Laurel Walker - seems  a little off putting.

Charlie's problem seems to be that the messages on the wall will not be seen by others in the way they are intended to be seen. That may be true, but it's not what bothers me.
I think the problem is that the whole project is just a tad too precious and self indulgent. It is supposed to be a blow against oppression but it's really a rather jejune expression of common and conventional wisdom. It is, more than anything else, boring. It does little more than celebrate the virtue of those participating in it.

It's not that the particular forms of racism or sexism or prejudices that the hate wallers want to condemn don't exist. Few forms of human evil are ever completely eradicated. It's that their condemnation is already one of our strongest social conventions.

There are, I suppose, worse things that you can do to your professional and social standing that utter one of the words on the wall in polite company (say rape or murder) but not many.

If that's so, then having a conversation about them cannot simply amount to rejecting or "tearing down" bad attitudes by condemning them. That message - and its corresponding call - is already ubiquitous. If you are in college and haven't learned that lesson, you probably never will.

This where the Sykes criticism comes in. The wall was initially visible to school children who may nopt yet have learned this lesson and are unlikely to appreciate the message of a wall intended for college students.

Putting that aside (they moved the wall), I'm not saying that it was necessarily a bad thing to do. There is nothing wrong with public affirmations of commonly held attitudes. Demonstrations of patriotism are an example.

But I guess it's the affectation of "speaking truth to power" - conveyed by the image of a wall being smashed - that is a little grating. In fact, these students have decided to go after an evil that it is safe and common to condemn. It may be the idea that, of all the evils facing this generation of college students, this one is among the worst. It once was. It now isn't. Tearing down a Wall of the ways in which our culture undermines personal (as opposed to "social") responsibility may have been a bit more daring.

A related, but different, problem may be that the "Wall" is just another example of the phony call by folks on the left to have an "uncomfortable conversation" on race. An "uncomfortable" conversation is the last thing that they want to have.

Free John Edwards

John Edwards amassed a fortune selling junk science to juries. By the grace of God, he did not succeed in selling junk economics to the country - although he's got some some more successful allies in that effort.

He is also, by all accounts, not a very good guy. Vain, dishonest and utterly self regarding.

So shouldn't we root for him to go down in for violating campaign finance laws as alleged in his current trial?

No. He's not guilty.

To be sure, there may have been any number of criminal laws violated by donors providing hush money to Rielle Hunter. There may have been taxes that should have been - but were not - paid.

But was it an improper "campaign contribution?" The government's theory seems to be that any amount paid that would help a candidate's campaign - at least if it was intended to help the campaign - is a contribution.

That's not right. Here is a great post by Rick Pildes at the Election Law Blog explaining why. The problem is that there was neither a contribution or payment of a campaign expense. We know that people can spend money in a way that helps a candidate without it being a contribution. Indeed, it is a long standing staple of campaign finance law that some one can independently spend money for communications that might help a candidate's campaign and that this expenditure cannot be regulated as a contribution.*

I could go on. Suppose that a wealthy supporter of Tom Barrett decides to donate $ 5 million dollars to the City of Milwaukee to put a glitzy new boardwalk adjacent to the Summerfest ground. He announces the gift in a joint conference with the Mayor right before the recall election and praises the Mayor for his leadership. Whether or not this is intended by the Mayor or the donor to help the Barrett campaign, it is not a contribution.

Or assume that a conservative foundation announces that it will give a cash prize to Sen. Mitch McConnell shortly before the election. McConnell intends to use the money for personal expenses and investments. It's not a contribution.

FEC regulations want to treat third party payments as contributions if they would not have been made but for the campaign. But that seems almost impossible to prove or disprove. There are all sorts of payments (I've mentioned two examples) that one might reasonably suspect would not have been made but for the campaign. But the same factors that might cause a donor to support a candidate for public office might also cause her to provide personal support.

Let's assume that Edwards was not running for President. Might Bunnie Mellon have nevertheless paid to keep Rielle Hunter so that Edwards' stature as a leader that Ms. Mellon respected would not be diminished and he could continue in public life. Might she not have done it to save the Edwards marriage?

But it's even worse than that. To get a conviction, isn't it necessary to show that Edwards knew - or at least believed - that the payments would not have been made, as the FEC puts it,
"irrespective of the candidacy."

To make this turn on an after the fact examination of subjective - and potentially murky objectives - seems fraught with vagueness problems. Even if they don't raise to constitutional stature, how could a jury find Edwards guilty beyond a reasonable doubt save for explicit admissions from the principals. 

This isn't to say that paying off Edwards' mistress wasn't wrong or that it didn't, as one witness testified, "smell wrong." It was and it did. As I mentioned at the outset, it may have even violated some other laws. But not the ones that have been charged.

That matters. I have written here in the past about the misuse of vaguely worded criminal statutes for political ends. This article by Rick Hasen reviews the issue nicely and this quotation from the Editors at the National Review, in an article criticizing the Edwards prosecution, puts the problem well:

Campaign-finance laws are a tricky business, because they put political incumbents in charge of setting the rules under which their positions and their power may be challenged. Such laws should be as transparent and straightforward as possible, and prosecutions under them should be undertaken with proper care.

Tuesday, April 24, 2012

Economics 102

I don't often comment on letters to the editor in the Journal Sentinel but this one caught my eye. A guy named Peter Flannery who says that he is a business owner doesn't think taxes have any thing to do - absolutely nothing he says - with whether his taxes go up. It's all about supply and demand he says. He learned it in Economics 101.
If that's what he learned, he was a poor student. To be sure, lower taxes can't overcome a complete  lack of demand - although lower costs can lead to lower prices that can lead to higher demand. but taxes affect both supply and demand. If, for example, I have to pay higher property taxes, my cost of providing goods or services will go up and that may reduce the demand for my product. Fewer people will pay what I must charge. If I cut my prices to a level that they will pay, I may eliminate or lower my profit to the point where I become unwilling or unable to continue or expand my business.
If I must pay payroll taxes on each new hire, the cost of adding an employee will increase. The marginal increase may make hiring that employee unprofitable given the demand for my product or service.
If I must pay additional taxes on my earnings, it may reduce my rate of return to a point where, again, I am unwilling or unable to expand my business regardless of the existing demand.
Similarly, taxes on my customers may reduce demand for my product. Sales taxes are a simple example but income taxes imposed on my customers may also reduce their demand for goods and services generally including those that I provide. While it is possible that the taxes they pay will fund valuable public goods that increase productivity, it is also possible - and given levels of public spending in today's economy I would say likely - that taxes will reduce aggregate wealth and demand.

Whether and the extent to which these things happen will, of course, depend on the circumstances. If tax increases are modest, tied to income and where adding employees does not require significant sunk costs or long term commitments, the effect on the supply side may be less than in other circumstances. (The demand side is another matter.)

People on my side of the aisle may overestimate the impact of tax increases, but taxes certainly affect both demand and supply.
But, wait, didn't Warren Buffett say that he's never seen anyone scared off a "good investment" by capital gains tax rates. That's a much narrower point than the one Mr. Flannery made, but might it be a worthy amendment of the point?
No. I have not had the investment or business experience of Warren Buffett but in the time that I spent as a member of the senior management team of an international manufacturing business, I observed people expressing great concern - and even being "scared off" - by the way in which taxes would affect the expected rate of return on an investment.
You don't even need to be in business to understand this. We put money in our 401(k) accounts (as opposed to some other vehicle) and probably put in more than we otherwise might because it is tax advantaged.
As Richard Epstein recently wrote, the problem with Buffett's statement (even if one takes it as face value) is that it is the product of sampling error. Anyone who had been "scared off" by capital gains rates would not be coming to him looking for money.

What's going on in the Prosser case

It's a bit of legal inside baseball but the current maneuvering going on in the proceedings on the complaint filed by the Judicial Commission against Justice David Prosser reflects the inherent flaw in the Commission's decision to file the complaint. It is unclear - I would say highly unlikely -  that the Supreme Court will ever be able to act on it.

Justice Prosser's lawyers have filed a series of requests for individual Justices to recuse themselves. I am not sure that this is what I would do if I were in their position. I might ask the Court to dismiss the complaint because it is clear - under both state statute and applicable provisions of the Judicial Code - that there will not be a constitutional quorum.

The problem with my approach (and, I suspect, the reason that is has not been tried) is that the Court has made clear that it believes recusal decisions are committed to individual justices without review by the rest of the Court. I still think I can argue for my approach but let's put that aside.

The Chief Justice is reported to have said that a decision on recusal is premature because the matter is not "before" the Court and, presumably, is "in" the Court of Appeals.

Is that right? Technically, it would seem that the case is clearly "before" the Court. Under Chapter 757, a judicial discipline case is never "before" any other court. It is filed in the Supreme Court and never leaves that Court.

Just as with attorney disciplinary proceedings, the case is not tried by the Justices. Initial proceedings are to be may be conducted before a panel of three Court of Appeals judges or before a jury presided over by a Court of Appeals judge. But either proceeding is before the Supreme Court in that it can result only in a recommendation - as opposed to the panel issuing its own decision which is then subject to further appellate review.

This is reflected in the fact that pleadings in an attorney or judicial discipline case are generally captioned as pending in the Supreme Court throughout the matter.

Of course that doesn't mean that the Justices must act on a recusal request now or that they might not regard it as "premature." In that less formal sense, one might say that the matter is not yet "before" the Justices. The Chief Justice, or any Justice who has been requested to recuse may  decide to defer a decision until after this three judge panel acts.

But I would hope that they do not do that. Here's why.

The proceeding before the three judge panel is pointless if the Supreme Court cannot act on the case. This is not like a normal criminal or civil proceeding in which the decision of the lower court stands even if it cannot be - or is not - reviewed by the Supreme Court. The three judge panel only makes a recommendation that must be adopted or modified by the Supreme Court.
In other words, if the Court can't hear the case, there will be no outcome. It would, in my view, better for the Court and in the public interest to decide now - rather than later - if the case can proceed to resolution.

It would be a different matter if there was reason to believe that proceeding before the panel would clarify the recusal decision, but that seems unlikely. The problem here is that six of the seven justices are either participants in or witnesses to the underlying conduct. All have publicly committed to a version of those events. Nothing in the proceedings before the panel will change or elaborate on that.

Nor does it seem that the outcome of the panel proceeding could make the need to decide on recusal unnecessary. As I have written before, the attorney for the Judicial Commission seems to think that the Court can simply accept whatever version of the facts that the three judge panel has decided to adopt.

That is, with respect, pure fantasy. First, the findings of fact, while subject to deferential review, are nevertheless subject to review. How a judicial officer is supposed to defer to a finding on whether he or she has accurately described what happened in his or her capacity as a witness is beyond me. This is one of the reasons that I think the doctrine of necessity has no role here.

Second, deciding on discipline is inextricably bound up with one's view of precisely what happened. Even if one could put aside one's lying eyes on the question of a violation, it can't be done - and legally need not be done - on the question of discipline.*

Now, you may think that this is no problem. That the five or six or seven justices should decide the case based on what they saw as witnesses. That doesn't look much like a judicial proceeding to me, but maybe you think that the doctrine of necessity compels such a curiosity. My point is that the merit - or lack of merit - in proceeding in this way is as clear now as it ever will be and, I would argue, ought to be addressed now.

This problem is further reflected in the skirmishing over whether or not a three judge panel can be empaneled without an order from the Court. That is apparently the way that is has always been done.
But here, the Judicial Commission wants to argue that it is not necessary. It claims that statutory language empowering the Chief Judge to appoint a judge in a disciplinary case filed with the Supreme Court empowers him to do so without being directed to do so by the Court.

Two things.

First, the Chief Judge of the Court of Appeals apparently doesn't read the statute in this way. He is refusing to act without an order. If he won't do form a panel, it's hard to see how he's going to be made to do it. Can a circuit court (or ultimately his colleagues on the Court of Appeals) order him to do it? Would they? We may found out - and, if they do issue such an order, we may find out whether there is a quorum on the Court when that order results in a petition for review.

I can't help but think that the effort of the Judicial Commission to go forward without the normal order from the Court is ill advised. I understand why a lawyer, as advocate for the Commission, would want to avoid asking the Court for an order to create a panel. It is possible - maybe likely - that he won't get one because there is not a quorum of participating Justices. If so, his case implodes.
Perhaps it is possible to make that implosion less likely if one can proceed before the panel and, hopefully, get a recommendation of discipline. That would increase political pressure on the Court to proceed and, while judges can be pretty good at ignoring political pressure, no one is completely immune.

That's good legal strategy but is it something that the Judicial Commission ought to be doing?
I understand the desire to have what was a very unjudicial episode  reviewed in some way. But considerations of procedural fairness often prevent cases from going forward and that seems likely here.

In that regard, some of the comments by law professors in the Journal Sentinel miss an important point. For example, James Sample of Hofstra is quoted as saying that Prosser is asking to be immune from "basic judicial process." That's wrong. He's asking that "basic judicial process" be respected. I know James. I have debated him twice and I think he's a good and smart guy. But he is as far to the left as I am to the right and I can't imagine that he would be so ready to endorse trial by a intrinsically compromised panel for a garden variety criminal defendant.

Another prof, Keith Swisher of Phoenix, thinks that "the people of Wisconsin deserve a remedy." But that begs the question of what fairness requires and prejudges the matter. There was - and maybe could still be - a better way to proceed. But that's a subject for another post.

* Maybe a different result would be appropriate for the second claim advanced by the Judicial Commission regarding Justice Prosser calling the Chief Justice a bad name. If there are no factual disputes, maybe 5 of the 7 can sit. Whether or not we need to have a disciplinary proceeding for that is, of course, another question. Justice Prosser has already acknowledged and apologized for this remark. His colleagues could condemn it (which is all such a case would ever lead to) but, whether they do or not, is not what this controversy is about.

Monday, April 23, 2012

Redistricting Update

I want to comment a bit on the Attorney General's decision to appeal from part of the final order in the redistricting case. *

Peter Earle, attorney for Voces de La Frontera, denounced the decision to appeal as a "laughable, partisan stunt ....”

Whatever one thinks of Van Hollen's decision to appeal, it is not partisan. In fact, most Republicans that I have spoken to thought he should not appeal. As far as they are concerned, the redistricting case was a complete win. The Republican plan was upheld on 97 of 99 Assembly districts (including everyone that the GOP would ever have a chance to win) and all 33 Senate districts. All eight Congressional districts still stand. Why bother?

Earle and his group wanted to use a claim under the Voting Rights Act to tear apart the legislative redistricting plan. They were unsuccessful in doing do and all of their other claims were rejected.
But they were able to convince the panel that the VRA required packing even more Latino voters into the 8th Assembly District than the legislature had done. While they wanted the Court to use this finding to affect more than the 8th and 9th Assembly Districts, it refused. It ordered only that the boundary between 8 and 9 be redrawn while leaving the outer boundaries of the two districts is intact.

The result is an even safer district for JoCasta Zamarippa. Good for her and her allies at Voces. It may also make it harder for Latino voters to form a coalition with non-Latino voters to elect a candidate of their choice in the 9th. Bad for people who care about that.

But the one group that had no political stake in the outcome was the Republican party. They were never going to win either the 8th or 9th Assembly District and have no partisan interest in how the lines between them were drawn.
The reason that I think Van Hollen has decided to "bother" with an appeal - in fact I can think of no other reason - is that he thinks the panel is wrong on the law and he wants to ask the Court to clarify just what the Voting Rights Act requires. Maybe he'll turn out to be wrong (although I don't think so) but it strikes me as a perfectly appropriate thing for the state's chief legal officer to do.

I understand a lawyer not wanting the other side to appeal when he's won something but it happens. Indeed, it's quite normal and we usually don't castigate our brothers and sisters at the bar for doing their job. In any event, accusing the Attorney General of partisanship for doing something in which he and his party have no partisan interest is should we say, strained.

* Full disclosure: I represented Jesus Rodriguez and Hispanics Leadership as an amicus supporting the Government Accountability Board's proposed redrawing of Districts 8 and 9.

Tuesday, April 17, 2012

Meet the New Boss

There were people - and I think there still are people - who think Barack Obama is a cut above other politicians. He's an exceptionally intelligent person who promised to free us, as he repeatedly says, from "false choices" and to usher in a new era of progress. Hope and change. Yes we can.
He is a smart man but it turns out he that he is given to heap demagoguery.The Buffet rule is an example.
We all know the facts. It is simply not the case that rich people, as a class, pay a lower effective tax rate than the middle class. In fact, they pay a higher rate. .
Now, it is true that, depending largely on how one earns one's income, a wealthy person can wind up with a lower effective tax rate than people who earn much less. But that is not so much a function of tax shelters and loopholes as it is a product of a deliberate policy choice - one that has a long pedigree and that is common in the developed world. We tax capital gains and dividends at a lower rate than ordinary income.
There are many reasons for this. There is a sense in which taxes on capital gains and dividends can be seen as "double taxation" since corporations typically pay tax on their income before paying dividends to shareholders. Capital gains often arise from the sale of corporate stock in which the price represents earnings that have often been taxed. Capital gains are, moreover, earned over time such that the gain can have a significant inflationary element. (This can, however, be the case for certain types of ordinary income as well.)
There is also a fair amount of evidence that raising capital gains rates reduces revenue because it triggers tax avoidance and deferral strategies.
Having said all that, I actually would be open to taxing ordinary income and capital gains at the same rate as long as we indexed the basis for capital assets. Maybe one can even make a case that the current capital gains rate (15%) could be raised a bit without causing disproportionate economic harm.

That's a debate that we could have but it is not the debate that the President has called for. Instead he wants a new form of Alternative Minimum Tax which is almost always a mess. It results in marginal rates that are opaque and often steep. Even if you want to raise taxes on the rich, it's the wrong way to do it. Economists of differing views think it's bad policy.

And it will bring in very little money.
But it polls well.

Monday, April 16, 2012

Primary Update

In 30 comments to last week's post on "fake" candidates, no offered any refutation of the points that I made and I have yet to read one any where else. No one has been able to dispute that the use of recalls is an attempt to accelerate the election cycle and put a variety of partisan offies on the ballot. No one can deny that, when we normally have multiple partisan elections, primary and general elections are held on different days. It is indisputable that holding a down ballot general election on the same day as a primary for only one party at the top of the ballot will give one party an advantage that it would not normally enjoy. There is no question that running canddates in the Democratic Senate primary is an attempt by the Republicans to level the playing field.

No one has been able to offer an argument that this is illegal. Sec. 8.20(2)(a) provides that a declaration of candidacy include a statement that the filer wishes to be "placed on the ballot at the (general or special) election to be held on (date of election) as a candidate [(representing the (name of party)) ...."

In other words, the candidate declares his or her intent to be placed on the ballot in a party's primary.

There is nothing in this statement that requires a candidate to affirm that he or she is a member of the party or believes in any of the various positions that the party (or most people in the party) hold. The law has never been used to enforce an ideological litmus or loyalty test on candidates and never could be.

No one has been able to point to anything that is intrinsically wrong with this attempt to level the playing field. It might be a different case if the candidates in question were misrepresenting their actual positions and running hard to take votes away from Democrats.But that's not the case.

One commenter did say that it's a waste of money and there is, to be sure, a small cost involved. An additional office has to be added to some primary ballots and someone has to count the votes. But, given the distortion that would accompany holding a down ballot general on the same day as a top of the ballot primary in only one party, it's not a waste of money.

Monday, April 09, 2012

More False Outrage About Fake Candidates

One Wisconsin Now and some bloggers seem to think it is illegal for the Republicans to run "fake" or "placeholder" candidates in the Democratic primaries. One blogger, Chris Liebenthal, cites Democratic election lawyer Jeremy Levinson in support of that position.

I know and like Jeremy Levinson. I respect him and, in fact, he was gracious enough to accept my invitation to speak to my Election Law class last week. But he's wrong about this. Very wrong - as the GAB seems to recognize.

The argument is that filing nomination papers to appear on the ballot to force a primary violates Wis. Stat. sec. 12.13 (3) (a) which provides that no person may "falsify any information in respect to ... [a] declaration of candidacy", and sec. 12.13 (3)(am) stating that no person may "... file a false declaration of candidacy or amended declaration of candidacy." Filing for a Democratic Party primary when one is not a Democrat and doesn't intend to campaign is, on this view. "falsification."

But it's not. The declaration of candidacy to be filed by these candidates is not due until tomorrow. But, based on press reports, there is no reason to believe that anything on those statements will be  false. In other words, the filing candidates will be who they say they are, live where they say they live, be qualifed to run, etc. On the GAB form, one simply avers that he or she is a candidate for an office representing a particular political party, i.e., that one is a candidate for that parties' nomination. These documents do not include any representation that the candidate supports the party, its principles or even that he or she does not belong to or support another party. Indeed, the statute requires nothing more in this regard than an affirmation of candidacy.

Isn't the fact that someone is a "real Democrat" implied?
No - at least not as the law is concerned. Criminal statutes are to be strictly construed. There is no chance that prosecuting these candidates would be successful. There are ways in which Wisconsin could try to protect parties from "outsiders" - and there are some states who employ such devices, e.g., closed primaries. But Wisconsin does not.

So, even if it is "legal," isn't it "wrong?"

No. I fail to see what is intrinsically wrong with the Republicans' strategy. Running candidates in the Senate primaries can be seen as a response to the extraordinary - and arguably unanticipated - use of recall elections as a devise to accelerate the election cycle and flip partisan control of the legislature.

We usually hold primaries and general elections on different days - even if there are not contested primaries for a particular office. One of the reasons this makes sense is to prevent a primary in one party from distorting the result in down ballot races. Assume, for example, that there is a heated race for the Republican Senate nomination this fall and no contested contested primaries of any significance on the Democratic side. If we accelerated the general election for, say, Secretary of State because neither party has a primary, we would distort the outcome of that race. People are far less likely to turn out for that office than for a contested primary at the top of the ballot. The electorate will be more heavily Republican than it will be on the day of the general.

The recall statute doesn't do that because it is predicated on the assumption that recalls will be directed at a particular office holder for something that he or she has done or failed to do and not as a generalized effort to accelerate the partisan election cycle based on policy disagreements.

But even if that is not the assumption, the fact remains that, if there are no primaries in the Senate recalls, then there will be "general" elections for the Senate at the same time that there is a a primary in only one party in  much higher profile race in which it is far easier to turn out voters.

This gives the Democrats an advantage that a party would normally not enjoy. We generally do not hold primaries on the same day as general elections. I understand why the Democrats want to hold on to that advantage. I understand why the Republicans don't want to let them have it.

The law permits the Republicans to take that advantage away and I fail to see what is unfair or mischievous about it. The upshot is that we will have a primary day and a general election day. That is how we normally conduct elections in this state. Acting to make that so does not unfairly "disadvantage" Democratic candidates.
Running candidates for  Governor and Lt. Governor seems superfluous given that there is going to be a Democratic primary. One reason to do that would be to ensure there is a primary if, for some reason, you want more time before the general election. That may serve some strategic advantage for the Republicans but hardly seems to disadvantage Democrats in an intrinsically unfair way.

It will also present the type of gamesmanship that we have saw last summer when the Democrats had candidates register and file nomination petitions and declaration of candidacies, but then (after nominations are closed) fail to file statements of economic interest so that they could not be certified on the ballot. That would have the effect of unexpectedly accelerating the recall election.

If that suggests to you a bit of inconsistency in the complaints about fake candidates from the Democratic Party, it should.

Thursday, April 05, 2012

The President, Judicial Review and Judge Smith

So, of course, the President's statement that it would be unprecedented for the Supreme Court to invalidate a law that was passed by a "strong" majority in Congress is wrong and, for a law professor, seems breathtakingly stupid. There are legal academics on the left who have come to be opposed to judicial review but no one would say it is unprecedented. Law students learn in about the first week of Constitutional Law that it is very precedented - that it is, in fact, one of the cornerstones of our constitutional jurisprudence. Ask any lawyer to tell you about Marbury v. Madison. It's one of the few first year cases, he or she will remember by name.

But President Obama is not breathtakingly stupid and we are reminded - constantly - that he taught constitutional law as an adjunct professor of law at Chicago. He knows that what he said is wrong.

The current White House spin is that he meant to say - in fact did say - something different than the meaning of the words he chose. I don't believe that. Indeed, he could have said that it would be rare (it wouldn't be unprecedented) for the Court to invalidate a Congressional enactment predicated on the Commerce power.

But a nuanced statement like that would not have served his purpose. It would have invited an argument about legal technicalities and not about the legitimacy of the Court. It would have been dismissed by most people as an argument between experts and that would not do.

Obama may be trying to influence the Court. It would be a big thing to strike down Obamacare - not because it would be unprecedented or even unpopular, but because it place the Court and President in conflict on a major national issue. That happens but it is always uncomfortable.

In making his statement, the President signalled that he intended to exacerbate such a conflict. He intends to go after the Court and make it an issue in his reelection campaign. While some liberal commentators, while forced to admit that the statement itself was nonsense, have said that it is not much of an attack, it is also the case that the Court has not yet ruled. This is a signal of what is to come and was intended to be read as a signal of what it to come.

So I have some sympathy for Judge Jerry Smith who, in the course of proceedings on a different challenge to the health care law, asked the DOJ to clarify its position on judicial review. I understand why he felt compelled to do it.

But, in the end, I think he ought not to have done it. The President of the United States was engaged in silly political posturing for which he has been, and richly deserves to be, slapped down.

I think it would be better for federal judges to stick to knitting and ignore the antics of politicians - even the President of the United States.  What he said was wrong. We all know it's wrong. Let's attend to the law as it is.

Tuesday, April 03, 2012

Republicans' Secret Weapon?

If I didn't know better, I'd suspect that Graeme Zelinski was a Republican Party plant -  dirty trick. I would find it hard to believe that a political party would want its spokeperson to act in the way that he does.

If I didn't know better.

Compulsory Compassion and Freedom

In his classic book, The Road to Serfdom, Friedrich Hayek wrote about the ways in which the movement away from classical liberalism toward socialism threatens the advances that classical liberalism has brought, including individual freedom. When one seeks to order society from above, the refusal of those below to act as they must constitutes interference with the grand plan and must be, if not eliminated, strongly discouraged.

Becoming our brother's keeper - particularly when we are compelled to do so - implies that he truly be "kept" - not only assisted but directed to act in a way that facilitates our assistance.

Isn't the individual mandate a perfect example of this? The justification for this infringement upon the liberty of those who do not wish to purchase insurance is said to be the legally mandated compassion that will provide the care that they cannot afford.

The notion that people not be permitted to act in a way that makes it more difficult to help them has no obvious stopping point. For the left, compassion most often dictates restrictions on economic freedom. But might not social conservatives argue that compassion requires limits on self destructive personal behavior? If I am to be my brother's keeper, then I need to fight an aggressive war on drugs because they will frustrate - and raise the cost - of my efforts to help those who might take them. My brother  should not have children out of wedlock. He ought not freely divorce his wife when there are children at home.

People will answer these questions in different ways but movement toward greater degrees of collectivism increases the frequency with which they must be asked. Obamacare is an extraordinarily ambitious effort to manage a large area of human interaction - to achieve better outcomes than its advocates think will be obtained through the voluntary interactions of individuals. It's not surprising that it requires extraordinary limitations on personal freedom.

Even if we avoid the temptation to micromanage personal conduct, we will inevitably be tempted to choose between deserving and undeserving objects of our compassion. While choices in life are inevitable and compassion can never be unlimited, collectivism centralizes these decisions. It tends to make them uniform.

It takes an extraordinarily sanguine view of human nature and of the capacity of elites to properly order society not to be troubled by this.


Monday, April 02, 2012

Obamacare and Coercion

We moved our offices last week so I have not had much time to look at what happened in last week's Supreme Court arguments on Obamacare. Day three was probably the best one for the government but let's not get carried away. The government's "good day" involved asking whether it had acted with the tender mercies of La Cosa Nostra. Had it made the states an offer they can't refuse?

Up for consideration was that feature of the Affordable Care Act that requires the states to substantially expand eligibility for Medicaid. The Constitution quite clearly forbids the federal government from requiring the states to adopt - or to dictate the nature of - social programs, so the Act uses an old tried and true trick. If the states refuse to do federal bidding, the Secretary of Health and Human Services is empowered to eliminate all Medicaid funding for the state. (The cost of the expansion is also to be paid for completely by the federal government at first and then at 90% after that, although there is - and can be - no guarantee that this will continue.)

This trick - justified under Congress' implicit authority to spend to advance the "General Welfare." Courts have long justified that money spent by sending it to the states can come with all sorts of strings attached extending the federal writ where it might not otherwise have run.

There is a substantial criticism of these cases. In a forthcoming book, The Upside-Down Constitution, Michael Greve argues that the use of the spending power in this way constitutes an uhholy alliance between the states and the federal government in which both substantially evade accountability for policy decisions.

But the permissibility of this approach is well established and the Obamacare case is about its limits. The Supreme Court has suggested the possibility that federal money with strings attached might be coercive of the states and, if so, impermissible. The Court has never found this to be the case. Might this be the first time?

How can giving someone money be coercive? There are two ways. The weaker arguments are that a deal can be too sweet to say "no" to or that states have become dependent on federal money that they have effectively ceded their sovereignty,

A stronger version is that the states are faced with an offer that they can't refuse. These programs are not truly "opt-in" or "opt-out." The citizens of any particular state have to pay for the federal program whether or not their state participates. Seen in this way, Wisconsin can only "opt-out" of the benefits and not the costs.

Seen in this way, the larger the program - particularly the larger the loss of benefits - the more it is likely for participation to be no choice at all.

Is the Affordable Care Act such a case? Here we saw a bit of reversal from the argument on the individual mandate. With respect to the individual mandate, certain of the Justices were looking for a limiting principle on the power of Congress. With respect to the Medicaid expansion, they were looking for a triggering principle on coercion. Just when does an offer become one that a state can't refuse?

The core of Act 10 survives

On Friday, the United States District Court for the Western District of Wisconsin upheld the core of Act 10's reform of collective bargaining, i.e., it upheld the Act's prohibition of collective bargaining on terms and conditions of employment other than total base wages. It upheld the limitation on increases in collectively bargained base wages. It upheld the right of public employees to decline to support the union.

The only aspects of Act 10 that it found unconstitutional were the requirement of annual recertification elections and the prohibition of payroll deductions to collect dues from those employees who choose to pay them. The state could adopt either of these provisions, the Court recognized, but held that it could not adopt them for only those public employees who are not public safety workers (essentially police and fire.)

This is, largely, a victory for the defendants and you can be sure that the plaintiffs will appeal. Because of that, I am not going to write much about it. The Wisconsin Institute for Law & Liberty represented a group of public employees who moved to intervene in the case as defendants and to file an amicus brief. Friday's decision denied the former motion (there are currently, in any event, no further proceedings in the district court into which to intervene) and granted the latter motion. Because the case may continue at the appellate level,  there is only so much that I feel free to say in a blog.

There is, however, one fact that ought to be kept in mind when reading press reports of the case. It is not quite right to say that Act 10 exempted only public employees whose unions supported Governor Walker. The only public employee unions that supported Walker were the police and fire unions in West Allis and Milwaukee. The union representing all other police and fire employees - over 70% of the total - endorsed Barrett.