Less to leaks than is claimed

As a legal matter, the information concerning "leaks" in papers filed by the District Attorney's office in response to certain motions made by Tim Russell are interesting, but not all that illuminating. (I express no opinion on the merits of the legal issue which the DA was addressing to which, strictly speaking, the issue of these leaks may not be all that pertinent.)

The most interesting is an e-mail from one of Russell's attorneys to talk show host Charlie Sykes from Michael Maistelman, one of Russell's attorneys. The e-mail says that he has "heard" that charges are about to be filed against Darlene Wink and Kelly Rindfleisch. Does this show that Maistelman was a source of improper leaks concerning the John Doe?

In a word, no.

Maistelman, as an attorney for another defendant, was presumably uninvolved in the decision to charge Rindfleisch and Wink. He apparently "heard" about the pending charges from someone else. (Indeed, he has said that the e-mail was based on "gossip.')

This would make him a recipient of a leak - not its source.  There is no evidence that that he was under any legal obligation not to pass it along. Who the initial source was - and whether there was a leak that violated a secrecy order - remains unknown. And that is the more critical question.

Nor does the e-mail establish that Sykes was being “hypocritical” for complaining of leaks from the Doe. To the contrary, it substantiated his complaints, even as it did not reveal the original source.

The September 26, 2010 e-mail from John Hiller to then County Executive Walker is no more illuminating. Apparently Hiller found out that Dan Bice was writing a story, talked with him about the story and reported on the conversation to Walker. In the course of the e-mail, Hiller says that Bice told him that he got "much" of his "information" from one of Darlene Wink's attorneys who send him an e-mail defending her. But what that "information" was and whether revealing it would have violated a secrecy order is not revealed. (Indeed, if the lawyer had breached secrecy, he would have almost certainly asked Bice for confidentiality which he obviously did not. If he had, Bice would hardly have identified him to Hiller.)

Nor does the e-mail establish, as at least one blogger has maintained, that Walker "knew" what was going on in the John Doe. It establishes that Walker knew a reporter was about to write a story.

Finally, the e-mails discuss a small portion of what has leaked from the Doe. They do not establish anything approaching a conclusion that the "defense attorneys" did it. I don't know who the source of these leaks were and neither does anyone else based on what is in the public record.

Of course, these details will be ignored by partisans in their rush to place "blame" for the leaks and advance whatever other speculation and innuendo meets today's political agenda.


Cross posted at Purple Wisconsin

I offer the following observations on yesterday's Supreme Court decision on Arizona's immigration law.
First, it tells us nothing about the pending ObamaCare decision on the individual mandate. The question if the Affordable Care Act cases has to do with Congressional authority. There was no doubt that Congress could legislate in the area of immigration and naturalization. The question in the Arizona case was the impact of what Congressional legislation on supplementary (or conflicting) state legislation.
Second, one can't ascribe victory to either Arizona or the Obama administration. The administration lost quite a few of its challenges to the law in lower courts and these issues were not addressed by the Supreme Court. On the other hand, the provision of the law that was not stricken by the Supreme Court yesterday may well have to substantially narrowed by state and lower courts to ultimately survive.
Finally, the controversy reflects the incoherence of our immigration debate. The left tends to frame the debate about unlawful entry into the country in racial terms. If you want to do anything to stem the flow of foreign nationals across the border or place restrictions on those who have illegally entered or remained in the country, you are "racist."
This is nonsense on stilts. A sovereign nation has the right to control its borders and it is hardly racist to worry that a large influx of low income and low skilled workers will stress social programs and place downward pressure on wages. People who turn opposition to unfettered immigration into a racial issue are not serious people.
I appreciate the insights of some of my libertarian friends on the value of a more lassiez faire approach to immigration but such an approach is not politically feasible and does not adequately consider the impact of illiberal nations.
On the other hand, conservatives on the issue (and this is not synonymous with Republicans who hold a variety of positions on immigration) see it as a matter or law and order. If you are not here illegally, you ought to go back. But that is not realistic. We don't have the capacity to accomplish that and, even if we did, there would be countless stories of sympathetic individuals and families who the majority of us don't want to send back.
Personally, I think the way out of this mess is for the left to stop playing the race  card and recognize that the borders have to be secured. Conservatives have to concede that millions of people who have been working and paying taxes and having children aren't going to be sent back.
Because neither side trusts the other, a compromise must involve addressing the legitimate concern immediately. A "path to citizenship", for example, must be combined with immediate and vigorous enforcement.

Cross posted at Purple Wisconsin.

Enough about Title IX

 
I'm going to play grumpy old man this morning. Here is is. If I hear another creepy paen to Title IX, I may never watch the WNBA again.

This would, of course, be a symbolic boycott because I have never watched it to begin with, but you get the point.

It's not that I am "against" women in athletics. When my niece's soccer team at Homestead High School won the state championship a few years back (she scored the winning goal in the semis!), it was about the neatest thing ever. One of our greatest national athletic accomplishments was the victory of the American women in the World Cup. We rightly remember Kerri Strug's courageous performance to put the Magnicent Seven over the top at the 1996 Olympics as one of those moments that represents what is ennobling about sports. (Hint: This is why I am only offering to boycott a women's sport that I have never watched.)

I may even concede that a law like Title IX was necessary. I remember 1972. It was a difference place.

But does anyone think that today's colleges and universities - those hotbeds of diversity mongering and celebration of the "other" (at least as defined by Progressive Orthodoxy) - would not provide equal opportunity to women? Does anyone believe that the parents who turn the logistics of girls soccer and softball into something resembling a weekly invasion of Normandy would sit by while their daughters are forced to the sideline? We see things differently in 2012.

Maybe Title IX contributed to this shift in attitudes, but I wouldn't assume it. In my opinion, evolving social attitudes create legal obligations and not the other way around.

Today, Title IX seems both unnecessary and potentially harmful. harmful. As a case in point, take UWM Athletic Director Andy Geiger. He says he's a great fan of Title IX but here's the thing. He doesn't need the federal government to force him to provide equal opportunity to women athletes. He can do it on his own and I suspect, if left to his own devices, he would do just that with the full support of the university.

And it is Geiger himself who illustrates why Title IX can be harmful. Federal enforcement of the law (as opposed to the language of the law itself) has insisted that women participate in the same proportion as their representation in the student body. Why anyone believes this would "naturally" be the case is beyond me. There is a a difference between recognizing that individual men and women ought to be free to make their own choices and the assumption that men and women, in the aggregate, will actually make the same choices. In the real world, this is often not the case.

But getting the numbers right is pretty much the only way to stay out of legal trouble.

This is why, according to Geiger, college football is off the table at UWM. I suspect that folks over at Marquette would say the same thing.

Whether or not UWM should have a football program is unclear. On the positive side, a football program is attractive to applicants and might arguably contribute to  a stronger "collegiate" atmosphere than is currently present there. It would raise the profile of an institution that has traditionally not had much of a profile. On the other hand, there would be a number of challenges  that might be beyond the capacity of the university to overcome. There is no place to play and UWM students do not have a tradition of strong loyalty towards or affection for the institution. In fact, it is the absence of such affiniity that a football program would be designed to overcome.

But the one thing that ought not to bear upon the decision to start such a program is whether or not there will be some formal equality between the number of male and female athletes. Devoting additional resources to a football program is unlikely to decrease opportunities for women who would otherwise participate in intercollegiate athletics.

We all believe that women should have the opportunity to participate in interscholastic sports. But, at least in 2012, Title IX no longer has much to do with providing that opportunity and the mechanistic way in which it is enforced does more harm than good.

So please. ESPN. Go back to showing the games and shouting "booyah" when someone makes a great play. Editorial is not your strength.

Cross posted at Shark and Shepherd home page.

The elusiveness of reform, part 1.

Jay Heck made a few reform proposals in an op-ed in today's Crossroads. Two of them interest me. I am far less enamored with then than Jay is. Let's start with the suggestion that Wisconsin establish a "non-partisan" redistricting commission.

First, let me say that I am generally skeptical of "non-partisan" and selflessly "civic-minded" commissions. If you ask a group of people to do something that is inherently partisan and political, the group will tend to become partisan and political. Those who are intensely interested in the process will attempt to capture the "non-partisan" agency and they will often succeed. When they do, the only thing that has been accomplished is that the politics will have been driven underground and out of view.

Me? I'd rather have it out in the open. 

Jay cites Iowa. I'll cite California where a "non-partisan" commission has been met with lawsuits and repeal referenda. 

The problem is exacerbated by the fact that, when it comes to redistricting, there are not a set of agreed upon and non-contradictory criteria for drawing district lines that are, as Jay puts, "according to community interests. 

For example, Jay wants to avoid oddly shaped districts in favor of those that are "contiguous and compact." But there are, in any redistricting year, countless ways to do draw such districts. And, contrary to Jay's implication, the GOP plan was not full of oddly shaped districts. There will always, in the give and take of drawing a plan, be a few oddities. But I show my Election Law students numerous examples of Rorschach blot districts - all of which have been upheld. In comparison, the GOP plan looked like a checkerboard. 

Even contiguous and compact districts can run afoul of other redistricting goals. They may, for example, be less competitive and even weighted toward the GOP. Nationally and in Wisconsin, Democratic voters are far more likely to be highly concentrated. Many experts believe that a”checkerboard" district will tend to "pack" Democratic voters and favor Republicans. 

What about promoting competitive districts? Well, that may require dividing natural communities of interest, i.e., communities of voters facing similar issues who will often vote the same way. For example, critics of the GOP plan objected to its division of Racine and Kenosha counties. But the result - combining rural and suburban voters into one district while placing urban voters in another would seem more consistent with preserving communities of interest - which are not necessarily - or even likely - to follow municipal boundaries. 

It is because there is no way to define what is a "non-partisan" and "public spirited plans" that courts are reluctant to entertain claims of a partisan gerrymander. That is why I told the legislature last July that the plan would not be susceptible to challenge as a partisan gerrymander. 

It is unclear that a supposedly "non-partisan" commission would do any better or that we would even have a standard by which to assess that question. Politics would still be there. We'd just have a harder time seeing it.

 Cross posted at Purple Wisconsin.

Faster and More Furious

President Obama's invocation of executive privilege to resist producing documents subpoenaed by Congress in connection with the investigation of Fast and Furious may turn out to be a rather large deal.

At first blush, these seems to be an extraordinary assertion of executive privilege which is most decidedly not a blanket warrant to assert confidentiality and is generally applicable to communications concerning " military, diplomatic, or sensitive national security secrets."

It is hard to see how the documents for which privilege is being asserted could qualify. They are, as reflected in this morning's letter from Deputy Attorney General David Cole, documents generated after February 4, 2011 related to the Department of Justice's response to Congress and whistleblower allegations.

February 4, 2011 is significant because it is the date of a letter in which the Justice Department misrepresented Fast and Furious to Congress. On that day, DOJ sent a letter in which it said that guns were not deliberately permitted to cross the border. They were. Attorney General Holder later described the letter as "inaccurate" but refused to agree that it was "false."

So it is far from clear that the documents requested could have involved Presidential communications (Holder says that he never discussed the matter with the President) or even any high level government official. It seems unlikely that they could have involved the type of military, diplomatic or sensitive national security matters normally thought to justify a claim of executive privilege. It looks like we have nothing beyond a generalized claim of confidentiality ot the type that the Supreme Court rejected in United States v. Nixon, 418 U.S. 683 (1974).

In fact, it seems as if the claim is that the DOJ, having misrepresented the matter to a Congressional oversight committee, is arguing that Congress is not entitled to conduct its own investigation as to  how and why that misrepresentation occurred. Instead, in today's letter, Deputy Attorney General offers to provide a "briefing" on how Congress was misled with "some" documents while others will be withheld but explained in some way.

That is, to put it mildly, a counter-intuitive proposition and a rather weak proposal. Given the lack of candor in the Department's response to date (we are, after all, discussing an "inaccurate/false" letter) and Attorney General Holder's dissembling before the committee, no reasonable person could expect a "trust us" briefing to be acceptable.

Beyond that, the President has, for whatever reason, decided to own a scandal that he presumably could have avoided. Why would we have done that?

This bears watching.

Cross posted at Purple Wisconsin.

Just because you're paranoid doesn't mean that you aren't making stuff up

I've got a few more posts on the recall aftermath. Over at the Marquette University Law School Faculty blog and this blog's home page, I add a little more legal detail to what others have written about the "we got outspent" narrative offered by some Democrats. The shorter version, for this general purpose audience, is that 1) the margin wasn't as large as is generally reported, 2) the margin had nothing to do with Citizens United unless it was to help the forces supporting Barrett close the gap and 3) the margin doesn't seem to have made much difference.

In general, I think it is a mistake for the side that loses an important election to look for scapegoats. Blaming everyone but yourself is a good way to stay a perennial loser.  But at least talking about money and politics is a serious response. There is a narrative bopping around some of the left-leaning blogs that is beyond silly.

Someone is messing with the votes! The exit polls showed that the race was much closer but then the networks called the race for Walker. Exit polls are accurate. What gives? Who stole the strawberries? 

This turns out to be a common meme on the far left, beginning with a really bad article by Robert F. Kennedy, Jr. on the 2004 exits in Rolling Stone. The argument begins with the premise that exit polls can;'t be wrong. They survey only actual voters who report how they have voted as opposed to how they will vote. Exit polls have been used to detect fraud in the counting of votes in other countries. They tend to show more support for Democrats than the actual numbers. The difference is cheating. Toss in a reference to Diebold.

This is moonbattery. Exit polls have their own difficulties. Charles Franklin, Director of the Marquette University Law School Poll, directed to me a good discussion of the issues here. While the discussion relates to exit polling in the 2004 Presidential elections, the issues are the same.
Exit polls must predict the extent of early voting and try to account for it by a telephone survey. They are not, strictly speaking random, in that the polling organizations must identify certain precincts  and then figure out what weight to assign precincts. They must attempt to sample the voters at each precinct randomly - which can be a challenge when the pollster must stand where she is told to stand and voters may try to be polled - or to avoid being polled. Like all polls, they must adjust their numbers to reflect what the actual composition of the electorate is (or is presumed to be).

One significant problem is that exit polls cane be plagued by a large refusal rate. The extant evidence says that there can be nonresponse bias. As noted above, Democrats tend to exit poll better than they actually poll. In the 2008 Democratic primary, Barack Obama did better in exit polls than in his actual match-up with Hillary Clinton.

Exit polls used to verify election results in other countries are often different animals than media polls used to predict the results. They generally involve far more extensive - and often more concentrated polling - to reduce some of the problems described here.

Complaining about the exit polls is black helicopter stuff.

Cross posted at Purple Wisconsin.

Cats and Dogs, Libertarians and Social Conservatives

There's been an interesting exchange among libertarians in response to the Catholic Church's kick-off of a campaign against application of the HHS mandate on contraception and "morning after" pills to certain religious institutions.

Tim Carney, writing in the Washington Examiner, began the conversation by suggesting that social conservatives recognize big government as an enemy of religion and calling on libertarians to reassess their political alliances. Walter Olson of Cato responds, observing that libertarians have been out front in opposing state impositions on religion, but pointing out that there are limitations to co-operation between libertarians and social conservatives to the extent that the latter support state intervention as an instrument of the culture war.  Walter's Cato colleague, David Boaz, argues that social conservatives have often called for impositions on liberty to advance a particular moral view, citing a number of historic examples.

Two things. First, it is always heartening to see libertarians understand that freedom requires resistance to impositions on voluntary associations as well as restrictions of individuals. It is a common mistake to see the freedom movement as entirely individualistic and unconcerned with communities. People often choose to exercise their liberties in association. Defending the right of a voluntary association to defend the principles around which their members come together is also vital.

Second, there are often paradigm shifts in politics and public life. For years, traditional Catholics, Evangelicals and Orthodox Jews clashed over theological differences. More recently, they have come to see the state and secular culture as a common and more immediate threat. They have formed alliances that once would have been thought impossible.

I can't say that libertarians and social conservatives are at the point of such a shift, but the thought is intriguing. Might it not make sense for social conservatives to understand that the enlisting the state as an ally in fostering the traditional morality they support is both theologically suspect and politically implausible? Might not libertarians come to recognize (although Walter would argue that they have) that a state powerful enough to enforce sweeping dictates of life style freedom against private individuals and organizations will always do so selectively and contingently?

Someone suggested that this may be one of the differences between the Moral Majority and the Tea Party. At some point, people recognize that the best offense can be a good defense.

Cross posted at Purple Wisconsin and Marquette University Law School Faculty Blog.

Money and the recall

Paul Secunda, as a labor law professor, weighs in on the aftermath of the recall. He makes some good points. But as (I think) one of two people in Wisconsin who teach Election Law (Mike Wittenwyler, an adjunct at UW, is the other), I would like to revise and extend his remarks.
Paul complains of the "8 to 1" spending advantage said to have been enjoyed by Scott Walker and suggests that this somehow can be attributed to the the results of the Supreme Court's decision in Citizens United v. FEC. This advantage, while overstated, is the result of a law. But that law has nothing to do with Citizens United.

First, a caveat on the "8 to 1" figure.
As my colleague, Tom Kamenick, pointed out (and not at my direction, I was off in DC), this metric doesn't reflect the situation on the ground. Paul's numbers - a mantra on the left over the past week - reflect only the amounts raised by the campaigns during the recall election (and excluded amounts spent by independents and the recall effort itself). It also ignores everything spent in last summer's recalls. When you take all of that into account, the GOP advantage is much less pronounced.

But this is a law school blog so let's focus on the law on contributions to a campaign.
Citizens United had nothing to do with contributions to Governor Walker's campaign. Citizens United had nothing to do with campaign contributions at all.
The constitutional treatment of campaign finance regulation has long distinguished between contributions and independent expenditures. The former have been held to be subject to more stringent regulation because, according to the Court, contributions are far more likely to risk actual or apparent corruption. That distinction is controversial but it has been consistent over the past forty years.

For many years, all independent expenditures that were not express advocacy for the election or defeat of a candidate - so called "issue advocacy" -  were, for the most part, constitutionally protected in a way that permitted anyone to spend what he wished to speak on issues.  This was so even when the ad was crafted in a way that could reasonably (even evidently) be interpreted as criticism of a candidate for office during an election. The McCain-Feingold Act briefly changed the rules (although it proved to be easily evaded) for certain forms of spending in federal elections. But the Supreme Court, in FEC v. Wisconsin Right to Life (WRTL II), effectively made clear that restrictions on the source of funding for independent issue advocacy (which it defined as any communication susceptible of no other reasonable interpretation than as a call for the election or defeat of a candidate) were unconstitutional. This included communications funded by corporate or union treasury funds.
Citizens United held only that the First Amendment also protects the use of corporate (and, by implication, union) treasury funds for express advocacy, i.e., advocacy calling for the election or defeat of a candidate. How significant that change was is unclear. Prior to the decision, corporations and unions could use their treasury funds to exhort voters to call Scott Walker or Tom Barrett and express their outrage over some ill-begotten position that the candidate had taken. After Citizens United, they could add a call to vote for or against a candidate. Since only a moron could have failed to cast an ad critical of a candidate as an issue ad, one might question just how significant that change was.
But corporate and union campaign contributions  - dollars that go to the campaign - can be - and still are - restricted. While one could use some of the reasoning in Citizens United to attack limits on corporate contributions, that hasn't happened yet. Both the 8th and 9th Circuits have held that limitations on corporate contributions survive Citizens United. (A district court in the 4th Circuit held otherwise in the context of a criminal prosecution. Oral argument in the Court of Appeals was held last month.)
So none of the "8 to 1 advantage" in contributions came from corporations other than as might otherwise be permitted by state law (e.g., corporations may establish PACs to make contributions, but that money can't come from the corporate treasury). None of it is attributable to Citizens United.
Walker was aided by a provision of state campaign finance law related to recall elections. Because recall organizers are free to raise and spend as much money as they can, the law permits a candidate subject to recall - from the moment the recall drive begins to the moment a recall is ordered - to raise money without regard to the normal contribution limits for the purpose of resisting the effort to obtain a recall order. Citizens United had nothing to with that either.
Citizens United may have had an impact on the money raised by for independent expenditures. It permitted union and corporate treasury funds to be used for express, as well as, issue advocacy. Moreover, in a subsequent decision, called Speechnow.org v. FEC, the DC Circuit held that corporations and unions could make unlimited contributions to organizations engaging in independent advocacy. The FEC did not seek Supreme Court review. Speechnow.org lead to the creation of so-called SuperPACs which also do not contribute to candidates, although they spend to support them.
Who did this help? It's unclear. As others have noted, there seems to have been more independent efforts for Barrett than for Walker. As Professor Michael McConnell pointed out in the Wall Street Journal, much of this was union money. The largest spenders on Walker's behalf seem to have been individuals. Citizens United may have actually helped unions close the gap in the Wisconsin recall election.

This shouldn't surprise anyone. There are all sorts of institutional obstacles to corporate political spending. The extent to which current law requires such spending to be disclosed is currently unclear, although the Citizens United court broadly endorsed the constitutionality of disclosure requirements.
Beyond that, it is dangerous to place too much emphasis on who spent more money in an election. I would not say - and I assume Paul would not say - that the substantial financial advantage that Barack Obama held over John McCain in 2008 was the cause of his victory. While the winning candidate usually raises more money, the causation probably runs the other way. Political money follows the polls.
In the Wisconsin recall, exit polls suggest that over 90% of voters made up their minds over a month before the election. Indeed, one of the most astonishing things about the Battle of Wisconsin is that millions and millions of dollars, wall to wall organizing, demonstrations of a type rarely seen in this country since I was about ten and almost nonstop political disputation changed almost no one's mind.

Cross posted at Marquette University Law School Faculty Blog.

Crony capitalism and health care

I have a friend - a spectacularly successful business person - who once told me that "when a guy you are doing business with wants to pray with you, watch your wallet."
Now, that's funny (it turns what seems to be a good thing on its hear) and probably unfair. Here is something that is neither.
Beware of public-private partnerships. Two theoretical insights tell us to be wary of the idea that government can facilitate the success of selected private companies. One is the notion that, in the absence of a market and the price signals it provides, it is virtually impossible to know which business or technology ought to be a winner.
The second is that, as public choice theory tells us, political processes are likely to be dominated by those whose interest is in the outcome is much greater than the public as a whole. In particular, there is a danger that the regulated will "capture" the regulators.
The Wall Street Journal is telling a scary story about this in the context of the passage of President's Obama health care reform. Pharmaceutical companies came to see the passage of the new law as both a risk and an opportunity. There were things that wished to avoid, e.g., permitted the re-importation of drugs, but also things that they wanted. Expansion of government subsidies for the purchase of their products - as well as a mandate that people buy insurance that would pay for their products - would be great for business.
There is an interesting twist to the story related to concerns on the left about money in politics. Apparently one of the prices of - or inducements for - favorable treatment was the expenditure by the drug companies' trade association of $ 150 million in advertising to be coordinated with the White House to promote a "consensus" on health care reform. This puts concerns about Citizens United in perspective, no?
Did things like this happen during the Bush administration? Apparently so. Shame on that as well.
Government does best when it sticks to government work., e.g. providing genuinely public goods and, as the Wall Street Journal put it, creating a fair and free market free of the type of micromanagement that is the essence of ObamaCare. Gore too many oxes and the ranchers start to get interested.

Cross posted at Purple Wisconsin

Fast and Furious

Last Friday, I spoke on a panel at the regional Conservative Political Action Conference (better known as CPAC) in Chicago. The subject was the Fast and Furious scandal and its implications for the rule of law. My co-panelists were David Kopel of the Independence Institute and University of Denver College of Law and Maureen Martin of the Heartland Institute.

I had not known much about Fast and Furious before the invitation to speak. It deserves more attention than it has gotten.

Put briefly, the story goes like this. Guns sold to straw purchasers in the southwest, particularly Arizona, sometimes find their way into the hands of Mexican drug cartels. The Obama administration, seeking to justify stronger regulation, has exaggerated the extent of the problem, but it is a problem. During the Bush Bush administration, federal authorities - in an effort called Operation Wide Receiver -  tried to work with the Mexican government to follow guns across the border in an effort to take down the gun smuggling network. Mexican authorities lost track of many of the guns and the operation was shut down.

After President Obama was elected and the administration called out the gun smuggling problem, the ATF adopted a variation of the old operation dubbed Operation Fast and Furious. It was so breathtakingly stupid as to call into question whether it was a law enforcement operation at all.
Like the previous program, wiretaps would alert federal authorities to when straw purchases were to be made. Like the previous program, federal authorities would ask - indeed, often pressure - gun shops to sell to these straw purchasers when, in the normal course of business, the shops would never have done so. Like the previous program, the guns were allowed to "walk" across the border.
Unlike the previous program, there appears to have been no plan - or way - to follow them once they crossed the border. The guns would be "found" only when they turned up at a crime scene. Mexican authorities did not know what was going on. US agents based in Mexico to assist that country's government did not know what was going on.

When the guns did turn up at a crime scene - that is, when they were used to kill someone - it would confirm what we already know. Mexican drug cartels sometimes buy guns in Arizona. It might tell you which ones are doing it because of the geographic location of the crime. It could provide talking points for more stringent US regulation.

What it would not do is help prosecute anyone but the straw buyer - who could have been prosecuted without allowing the guns to walk across the border. The operation violated a number of federal laws.

Fast and Furious was finally exposed when one of the guns allowed to walk into the hands of Mexican drug lords was used to kill an ATF agent in the Arizona desert. Other Fast and Furious guns have been used to kill Mexican citizens.

The Mexican government has called for the extradition of those who were involved.

What has followed is an investigation in which Attorney General Holder and the DOJ have had to backtrack about what his people knew and when they knew it. He has had to claim that he did not read e-mails and other documents directed to him concerning the operation. He has asserted that no one told him about it and that, if they did, he didn't listen. He has jousted with Republicans at congressional hearings about the extent of his department's cooperation with the investigation - most recently last Thursday. Some of the exchanges are Clintonian. At one point, Holder argued that a letter claiming that DOJ in  Washington did not know of gunwalking  - which was retracted when it turned out that Holder's deputies did know about it - was not "false" but "inaccurate."
It would be wrong to claim that Attorney General Holder authorized the program or knew of what it entailed. That remains to be seen. It would be wrong to say that the program was designed to create crimes that could be used to justify more stringent regulation. I can't believe that anyone would be that monstrous.

But it does raise serious questions about the dangers of law enforcement that seems to have been tailored to appease - or at least to impress - political appointees. As David Kopel has written, you should be furious about this.

What has followed is an investigation in which Attorney General Holder and the DOJ have had to backtrack about what his people knew and when they knew it. He has had to claim that he did not read e-mails and other documents directed to him concerning the operation. He has asserted that no one told him about it and that, if they did, he didn't listen. He has jousted with Republicans at congressional hearings about the extent of his department's cooperation with the investigation - most recently last Thursday. Some of the exchanges are Clintonian. At one point, Holder argued that a letter claiming that DOJ in  Washington did not know of gunwalking  - which was retracted when it turned out that Holder's deputies did know about it - was not "false" but "inaccurate."

It would be wrong to claim that Attorney General Holder authorized the program or knew of what it entailed. That remains to be seen. It would be wrong to say that the program was designed to create crimes that could be used to justify more stringent regulation. I can't believe that anyone would be that monstrous.

But it does raise serious questions about the dangers of law enforcement that seems to have been tailored to appease - or at least to impress - political appointees. As David Kopel has written, you should be furious about this.

Cross posted at Purple Wisconsin.

Shark on NPR

My appearance on NPR's OnPoint on Wisconsin's Morning After can be heard here.

Shark on Twitter

So in the past week, I broke down in two ways. First, I opened a twitter account. I can be followed @RickEsenberg. Still deciding what to do with that, but it added to my enjoyment of election night.

I also got (today) and iPhone4S. I still have more stuff in my house with the Beatles' old Apple logo than with Steve Jobs' version. But the gap is closing.

Shark in the Hub

Tonight at 7:05, I will be on Nightside with Dan Rea out of WBZ in Boston. I am told it is heard in 38 states but I don't know where.

About last night

A few things.

First, tonight's results should be kept in perspective. I have lots of liberal friends. I know how I would have felt if it went the other way. I don't share or feel their pain, but I can understand it.


Public officials like the Governor  need to find a way to go forward. Governor Walker's speech was appropriately gracious and I sincerely hope that Democratic and Republican legislators can get together for beer and brats. It won't be easy.

Second, last night was very bad for the Democrats. The gubernatorial race was not close. Turnout was not at the level of the 2008 Presidential election but it significantly exceeded the 2006 and 2010 gubernatorial elections. The electorate was engaged and Walker, after having been vilified for 15 months, did a little better than he did a year and a half ago.

For my entire life (and I ain't young), Democrats have believed that, if they could just increase turnout, their candidates will win. It almost never works that way. They ran a great ground game yesterday. The Republicans ran a better one. More voters meant a bigger margin for Governor Walker.

Third, exit poll results that showed Obama with a comfortable lead are questionable. The same polls showed Walker and Barrett in a close race when, in fact, they were not. In any event, it's a long way to November and the idea that someone who voted for Walker might not abandon Obama for Romney is nothing I would wager on.

As  I write this, it  appears that the Democrats may have won one of the Senate recalls. That's not much of an accomplishment. They tried to pick the three most vulnerable Senators after the largely failed recalls of last summer.  This shouldn't have been hard. In 2010, the GOP picked up a number of swing districts in a heavily Republican year.

The odd thing here is that the district won by John Lehman no longer exists. The now Democratic Senate was unlikely to do much between now and the fall elections. The likelihood that they will hold on in November is slim. Winning that seat is a bit of a consolation, but not much.

Cross posted at Shark and Shepherd home page.

Shark on NPR

I will be on On Point tomorrow on NPR. Live at 9 am CDT in some places but apparently aired at 6 pm here.

A few things at stake

This morning I appeared on the left wing radio and TV show, Democracy Now! hosted by Amny Goodman. I guess you can always learn something because I thought we've had Democracy since 1776!
The likelihood that I would persuade anyone in that audience to view the recall election any differently is on a par with my winning Dancing with the Stars next year. In fact, I am not sure that the prospect for convincing anyone anywhere to view things differently are very large.

But, if you have any doubts, the following is at stake this year.

Recall as the new normal. Politicians can learn. If the Democrats successfully accelerate the election cycle, we can expect to see it again. From both sides. This isn't to say that we'll have all recalls all the time but whenever a politician is seen as politically weak or does something that inflames the other side's base, recall will be part of the potential response. We will have effectively eliminated any presumption against it.
Do you enjoy the permanent campaign? You know what to do.

Responsible budgeting. We have a problem in the US. Democrats want to spend money but won't raise taxes on anyone but the hated "rich." The math doesn't work. Republicans, I must admit, are stronger on tax cuts than spending reductions. Walker departed from this pattern. He tried to make his budget work by lowering the cost of government through collective bargaining reform. To recall him will be to ensure that it doesn't happen again.
Walker made some tough choices. Barrett won't say what he would have done. That's a common thing for politicians to do, but it's not serious. A successful recall would reward it.

New possibilities for government. While much of our rhetoric is "for" or "against" government, Walker's reforms went beyond that. He tried to find a way to avoid tax increases without substantial service reductions. Reducing the power of public employee unions will increase the power of good public employees. Public service won't be strangled by seniority rules or rigid work rules. Merit pay becomes more of a possibility. Government can leave behind the outdated industrial assembly model of labor relations and move into the 21st century.

Or not.

Shark on Lake Effect

I'll be on WUWM (89.7 FM) on the election around 9:30 tonight.

Shark on left leaning TV.

I'll be on Democracy Now hosted by Amy Goodman tomorrow morning. I understand that you can watch the video stream here.

Kumbaya was not on offer

Alan Borsuk wonders if the Governor Walker might have avoided a recall had he talked about his reforms before trying to implement. Could there, he wonders, have been a "kumbaya"" moment?

Not very likely.

The Governor has himself suggested that he might have done a better job of rolling out his initiative on collective bargaining. But there is no way that the Governor and public employee unions would have agreed on a reform package.

That is because changing the nature of collective bargaining was essential to the Governor's vision. As I have written before, a union is a form of cartel. It is designed to shift the supply curve of a labor in a way that results in higher wages and benefits - and more restrictive work rules - than  would result in a free market in which employees bargained individually.

In the private sector, the result is some combination of higher wages,reduced employment and lower profits. As markets have become more competitive, the advantages to workers of unionization has diminshed and private sector unions are in steep decline.

But, in the publice sector, there are no profits to be lowered so unionization can only increase the cost and reduce the efficiency of government.

The problem is exacerbated by the fact that government is not subject to the discipline of the market place and public employee unions become a vested and powerful interest that can place pressure on it in a way that, say, the UAW cannot influence Ford.

Now, if you believe that the government, left to its own devices, would abuse its workers, this may be a price you are willing to pay. Given that almost everyone else manages to work without the protection of a union free of abuse, this seems implausible. But my point is that Walker's objective went far beyond saving some money on pensions and health insurance. He wanted to do for government what the President talk about doing for health care. He wanted to bend the cost curve.

But there is more. Unionization requires an employer to treat its employees as a collective. It tends to preclude or minimize the consideration of individual merits in favor of lock step compensation and emphasis of seniority. In an effort to protect employees from unfair work decisions, unions often protect poor workers at the expense of good ones.

To change this was not an attack on "workers" and "public employees." To the extent, it undoubtedly  saved many jobs and paves the way to treat workers - particularly teachers - like professionals rather than assembly line workers.

But there is no way that it was going to happen without a fight. The Governor has been accused of having a political motivation. Public employee unions tend to support Democrats. (Labor organizations representing over 70% of police and fire employees supported Barrett as did all other public employee unions.) But the accusation cuts both ways. If it is politically advantageous for the Governor to reduce the power pf public employee unions, it was equally advantageous for Democrats to enhance it.

Kumbaya was not in the cards.

Cross posted at Purple Wisconsin