The First Amendment applies to employees

A few years ago, I decided that I wanted to devote the rest of my professional life to full time work on law and public policy. It was a great decision but, as is so often the case, it did not come without a cost. One of them was that I eventually had to resign as General Counsel of Rite Hite Holding Corporation - a company that I had the privilege to serve on a full time basis from 1997 -2007 and, on a more limited basis, until last year.

 I am not going to comment directly on the e-mail that the company's owner, Mike White, sent to his employees other than to say that I know Mike sincerely believes that it is in the best interest of his employees to understand the potential impact of federal policies on the company they work for. 

But I am going to weigh in on the notion that sending such an e-mail should be regarded as illegal. I would write the post had any other company been involved.

Let’s go to the law. Sec. 12.07(3) of the statutes provides:

No employer or agent of an employer may distribute to any employee printed matter containing any threat, notice or information that if a particular ticket of a political party or organization or candidate is elected or any referendum question is adopted or rejected, work in the employer's place or establishment will cease, in whole or in part, or the place or establishment will be closed, or the salaries or wages of the employees will be reduced, or other threats intended to influence the political opinions or actions of the employees. (Emphasis supplied)

By its own terms, the statute does not apply to the Rite Hite e-mail. The law is expressly limited to unqualified commitments (statements that something "will" happen) and comparable statements ("other threats"). The e-mail did not say that the anything "will" happen or make any other "threat." It outlined the ways in which potential Obama policies might affect the company and how those impacts could harm its employees. In fact, the e-mail made clear that no employee would be prejudiced by the way in which he or she voted.

I appreciate that some will argue that the statute should be read broadly to "implied" threats or statements of probability. That won't happen. Criminal statutes are to be narrowly construed and, as we have seen, the this law simply doesn't apply here.

But even the law could be stretched to cover the mere communication of political opinion, it would be unconstitutional.

In our country, we have a very strong presumption against punishing speech. We allow for very few - and quite limited - exceptions. Courts are especially protective of core political speech, i.e., statements about issues and candidates. They are rigorously suspicious of any restrictions based on the content of speech. Restrictions on the content of core political speech are almost never upheld and, if they are to survive, must be narrowly tailored to serve the most compelling of state interests.

A statement of opinion from an employer to an employee where the employer will have no way of knowing how any employee voted doesn’t even come close to the type of thing that would justify the suppression of political speech.

I cannot imagine that the DA would bring charges in this case. He certainly knows that they would be dismissed by return mail. We still believe in free speech here.

Cross posted at Purple Wisconsin

Binders of nothing

I teach Election Law. One of the things that I tell my students is that a not inconsiderable portion of our political discourse - and much of our political advertising - is undertaken in bad faith. The unspeakably silly attack on Mitt Romney for saying that he had his staff assemble binders containing information on women that he might appoint to high political office in Massachusetts is an example. There have been, I suppose, political attacks even more stupid, but this has to be on the Irrationality Hit Parade.

Normally, our friends on the left would be telling us that it's wrong to hire through an "old boy's network." They would say that we must make a special effort to include members of historically excluded groups. Indeed, they might even say that we must intentionally hire so that the percentage of certain groups is proportional to the population at large.

Romney didn't go to quotas, but he did make a special effort to ensure that women were included in in his administration. That's where the binder come in. Let me explain for those who are unable or, more accurately, unwilling to understand.

You see, binders, in this context, are a notebook cover with rings or clamps for holding pieces of paper. Persons will often make up binders to contain documents that are important to them and that they want to keep together for further reference and review. When I am arguing a case,for example,  I will often have binders put together with the parties' briefs, important prior decisions and other critical information.

When I am hiring someone - and I am now - I like to have binders put together with those resumes that warrant further consideration. Sound familiar?

Governor Romney was concerned that the names that were initially brought to his attention had failed to include qualified women. So he instructed his staff to work harder to find qualified female candidates and to place the information pertaining to them in binders to ensure that this information would get further reference and review and the women would get the consideration they deserved.

See, it's not so hard.

Oh, I know its the atmospherics of the matter - the sub-rational signifying - which is another way of saying that there is no point at all. Or its supposed to be funny. I get the joke. "He had "binders of women" - like a little black book!" "Did he have photos?" Grow up.

After the first debate, the Democrats thought the issue was Big Bird. After the second, they think it was binders. Pretty thin gruel.

Cross posted at Purple Wisconsin

A draw may be a Romney win

The consensus on last night's Presidential debate seems to be that it was a draw. To be sure, supporters of each candidate will think that their man did a better job, but its hard to see that viewers without an a priori perspective would see an advantage for one candidate over the other. But there are two dangers for the President.

First, while he was not as bad as Joe Biden, he apparently thought it his prerogative to interrupt Governor Romney whenever he did not like what he was hearing - even to the point of complaining about Romney's decision to respond to an earlier question before answering the one put to him. As one tweeter put it, "Stop Romney before he says something true."

That may have been a problem. The incumbent has a great advantage in these things in that he wears the dignity of the office. A challenger has a tough challenge in attacking someone who he must address as "Mr. President."

But there is a burden that goes with this. The incumbent must act "Presidential." Interrupting your opponent and complaining about time - even when you are clearly getting the advantage on the clock - is diminishing.

Second, once again, the Obama-Biden ticket stepped in it on Libya. The President twisted his own remarks immediately following the attack in Benghazi to imply that he immediately recognized that it was a terror attack. The implication is that he acknowledged that this was an organized operation undertaken by an organized terror group and not a grassroots response to a video denigrating Islam.

No, he didn't.

Mickey Kaus includes the transcript here. The President denounced the attack and the made references to denigration of religion (an obvious reference  to the video) and claimed that such denigration does not justify violence. This expressly links the video to the attack. He went on to  mentioned 9-11 and then said that the US wouldn't be deterred by acts of terror. That final reference is, as Kaus points out,  ambiguous and perhaps intentionally so. In the days that followed, the President, Secretary of State and Ambassador of the UN, among others, kept suggesting that the attack was a reaction to the video as opposed to organized terrorist activity.

They did so, it can be argued, for political purposes. The President intended to campaign for re-election on the theme that "Osama bin-Laden is dead." While this was a well deserved bit of retribution, it did not end the war on terror and may not, given bin Laden's diminished capacity, have been more than a symbolic victory in that war.

But the President wanted to claim that it was much more. That al-Qaeda or groups associated with it were able to kill a US Ambassador on the anniversary of 9-11 undercuts his preferred narrative. This is why the administration preferred to suggest that the attack was the product of a grass roots uprising in response to a "shocking" video. Can't be blamed for that.
So, whether intentionally or from confirmation bias, they pushed the video story even though they knew or should have known it was false. For the President to suggest otherwise, flies in the face of the facts.

Candy Crowley was wrong, both on the facts and in her role as moderator, to come to his support. Indeed, she seemed to almost immediately recognize that she had made a mistake - at least in judgment. Because that was such a jarring moment in the debate, her intervention may, ironically, give the story of the President's misrepresentation more legs.

But Governor Romney disappointed here too. His exchange with the President was fine, in and of itself, but the should have been prepared to directly address his remarks and tick off a litany of the administrations post attacks distortions - distortions that went on for  a week - in much the same way that he earlier delivered a devastating precis of the Obaman economic record.
Up to that, my scorecard, doing the best I could to put aside my own perspective, was that Romney had a touchdown lead. I think the missed opportunity brought the contest to even.

There is something in a draw for the President. It may stop the bleeding associated with his last performance and the narrative surrounding it. But there may have been in it for Governor Romney.

If undecided voters are prepared to break against the President, the most important thing they need to see is a reason to vote for Romney. They need to see that he is Presidential and not the ogre that Obama's campaign has tried to portray him to be. In Denver, he clearly bested the President. In Hempstead, he appeared to be, at worst, "just as good." For voters ready to punish the President for a bad economy, the latter may be all it takes.

Cross posted at Purple Wisconsin

A question on Ryan and the stimulus

Joe Biden thought he had Paul Ryan when he pointed out that Ryan helped two constituents apply for stimulus funding. Ryan, of course, opposed the stimulus. Purple Wisconsin blogger, Jim Rowen, takes up the cudgel on this, adding that Ryan opposed the stimulus on "ideological grounds" which, actually, is just another way of saying that he thought it was a very bad idea -  as, indeed, it proved to be.
But here's my question for Joe Biden.
Mr. Vice President, you opposed the across the board reduction in income tax rates proposed by President George W. Bush and enacted in 2001 and 2003. Those reductions passed over over your objection, as the stimulus package passed over those of Congressman Ryan.
Have you paid taxes at the lower rates that you opposed? Have you refused to take advantage of those lower rates by calculating your taxes using the higher rates that you preferred to remain in place?
Just wondering.


Cross posted at Purple Wisconsin

Did you like the class president or the class blowhard?

I have heard no spin. Seen no polls regarding tonight's vice presidential debate. I have three reactions.
First, both candidates debated well. although neither was great. Biden was much stronger than Obama. The Biden and Ryan styles were contrasting. Biden was aggressive and hyperbolic. Ryan was calm and understated and, I think, overly deferential. At one point, he needed to say "Mr. Vice President, here's how it is supposed to work. I get to talk with out interruption and then its your turn. Can we try that?"
Different people will react differently. My guess is that both bases will like think their guy won.
Second, as someone who participates in this type of forum on a regular basis, Biden's behavior was shocking. He interrupted and behaved like a smart ass teenager. His smirking and mugging for the camera was the stuff of bad actors and third rate personal injury injury lawyers. (Good personal injury lawyers are much better than that.) It was rude and unprofessional. It was condescending and disrespectful.
But was it ineffective?  Biden adopted the tactics of a cheap trial lawyer. Mostly it doesn't work. But sometimes - with certain audiences (or certain juries)- it does. It tends to work best not when you want to convince the undecided (people aren't that stupid). but when you want to inflame people who are already with you.
Third, without regard to which candidate won, Martha Raddatz was the loser. She  let the debate get out of control and she allowed Biden, in particular, to run all over her. I don't know much about her work as a journalist although I take it she has a good reputation. She was clearly not up to this.
Vice presidential debates tend not to matter and I suspect that this one won't. If you're a Democrat, you have to hope that Biden somehow made up for the President's abysmal performance. If you're a Republican, you have to hope that Biden's oafish behavior underscored the theme of an administration that has no case to make. I'm not sure that either side will get its wish.

Cross posted at Purple Wisconsin

The Incredible Shrinking Middle Class Tax "Increase"

We should be all skeptical of the appeal to non-partisan authority; to the argument that some "Center" or "Institute" or "Foundation" - or even college professor - has done a study that has come to a conclusion that we all should accept on its face because the people who did it are smart. 

A case in point is the study by the Tax Policy Center purporting to show that Mitt Romney's across the board reduction in tax rates "must" result in tax increases on the middle class. The claim is being trumpeted by the Obama campaign in speeches by the President and Vice President and ads running in Wisconsin and elsewhere. 
The study is interesting but this claim - which to its discredit, the Tax Policy Center encouraged – is, at best highly misleading and, at worst, an outright lie. 

Here's what the Tax Policy Center did. It calculated the revenue that would be lost by an across the board rate increase by using "static scoring," i.e., the reduction in rates is assumed to have no impact on economic growth. That is generally a bad assumption. One might be able to make a stronger case for it here because Romney wants his plan to be revenue neutral, i.e., it should not result in a loss of tax revenue. But reducing rates and eliminating so called tax expenditures is likely to result in a more efficient allocation of capital and, it is reasonable to suppose, result in some increase in economic growth and tax yield. 

In addition, in calculating the “baseline” from which the "shortfall" in revenue is calculated, the Tax Policy Center takes into account revenue that would be raised by the various taxes imposed by ObamaCare. Romney proposes to repeal these along with much of the spending proposed by the health care plan. These ought to be considered separately.  

So the revenue shortfall – the money to be lost by Romney’s proposed across the board rate reduction – is overstated. 

But even Romney admits that these cuts will still have to be "paid for," i.e, revenue from additional growth will not completely "pay for" the reductions. So he proposes eliminating deductions and credits. The weakness of his position is that he hasn't said which ones these will be. 

And that left him open for what seems like a bit of hackery by the generally respectable Tax Policy Center. It looked at the various deductions, credits and exclusions of income and unilaterally decided which ones were "off the table." In other words, it made up a Romney plan and then proceeded to analyze it. 

The deductions, credits and exclusions that it "took off the table" were presumably selected because  Romney has said that he does not want to raise taxes on savings and investments. There are two problems with this. First, if you to hold Romney to his promise not to raise taxes on savings and investment such that you assume he will never depart from it, you must also hold him to his promise to raise taxes on the middle class such that you assume he will never depart from it. That would make the criticism of the plan focus on its claim to be revenue neutral – which is not the criticism that the Tax Policy Center and Obama campaign have advanced. 

More fundamentally, saying that one will not raise taxes on savings and investment, does not remove from the table all of the deductions, credits and exclusions that the Tax Policy Center assumed. As economists at the American Enterprise Institute have pointed out, one could eliminate the shortfall by eliminating the exclusion of interest on government bonds and interest earned by life insurance policies – preferences for one kind of “investment” or “saving” over others. One could eliminate more by repealing the "stepped up basis" for capital gains taxes imposed on the sale of inherited assets – something that makes no sense if we repeal the estate tax – as Romney proposes to do. All of these predominately benefit wealthier taxpayers. 

AEI points out – and the Tax Policy Center does not say otherwise – that when you make these adjustments and put these exclusions, deductions and credits back on the table, the supposed "need" for a middle class tax increase is eliminated by a very small increase in the rate of growth. In other words, what the Tax Policy Center initially said “must happen” need not happen at all. 

The point is not that the Tax Policy Center got the math wrong - it doesn't appear that there is much disagreement about the math. It's that it approached the issue in a tendentious way - making assumptions that advanced its preferred narrative and that played into the hands of one of the campaigns. It would have done a better study had it played it straight.

It would be fair to ask Romney to be more specific about his plan - a question that might also be asked of the President about his. It's fair to say that its tough to design an across the board rate decrease that would be revenue neutral without raising rates on capital gains and dividends - although neither would raise much more money. But saying that Romney proposes a middle class tax increase is wrong. So wrong, I think, as to be perilously close to a lie.

Cross posted at Purple Wisconsin.