Thursday, May 30, 2013

Today's Voter ID decision could have legs

I hate to say that I told you so. I really do. But not enough to refrain from saying it.

I have always thought that the argument that voter identification is unconstitutional because it imposes an "additional qualification" on voters to be imaginative but fundamentally flawed. The argument is that the Wisconsin Constitution says that the legislature may require voters to be over 18, citizens of the United States and residents of the districts in which they seek to vote. It says that the legislature may provide for registration and disqualify certain categories of voters, i.e., felons and persons who are incompetent. But, the argument goes, since the Constitution doesn't say the legislature can require photo identification, it can't.

The problem doesn't take a legal genius to identify. Photo ID is not an "additional qualification" outside of those listed in the Constitution, it is a means to ensure that the qualifications that the legislature can and has enacted are complied with, i.e,. it is a way to ensure that the person who seeks to vote is that person over 18 who is a United States citizen and resident of the district who has registered to vote.

Now you can argue that this is unnecessary or may not be the best way of doing that, but the courts don't get to decide what is "necessary" or "best." As the Court of Appeals ruled today, the legislature may enact reasonable election regulations so long as they are not so burdensome as to effectively deny the right to vote. Because that hadn't been proven, photo ID had to stand.

Today decision, in a case called League of Women Voters v. Walker, does not disturb a separate injunction against the law in NAACP v. Walker which remains pending before a different district of the Court of Appeals.   

However, it may very well result in reversal in NAACP as well. Here’s why.

Today’s decision makes clear that, under the Wisconsin Constitution, the legislature may enact reasonable election regulations unless a challenged regulation is so burdensome that it effectively denies potential voters their right to vote. This is not the standard that was applied by the court in NAACP. While we believe that case ought to be reversed and dismissed, it would appear that, at minimum, the Court of Appeals must vacate the NAACP decision and send the case back to the circuit court with instructions to apply the proper standard.

Full disclosure: Along with my colleagues at the Wisconsin Institute for Law & Liberty, I filed an amicus brief in League of Women Voters on behalf of a diverse group of community leaders, including a former lieutenant governor, a journalist, a retired Milwaukee police detective who specialized in voter fraud, and leaders in the Hispanic and African-American communities, urging that the court show appropriate deference to the legislature and the law be upheld.

Cross posted at Purple Wisconsin

Tuesday, May 21, 2013

The IRS scandal may have been unavoidable

As the IRS scandal plays itself out, there are three competing narratives. The first two look for whatever it was that motivated IRS workers in Cincinnati to target groups that seemed to be pushing conservative or libertarian causes. One theory is that a command came from the top - whether by express command or by the persistent demonization of the political opposition by our rather demagogic President and others in his administration. The other is that the genesis was the union that represents revenue agents. These theories, of course, are not mutually exclusive.

The countervailing theory, pushed heavily in Sunday's New York Times, is that there was no motivation - that this was just a misbegotten effort to "rationalize" the office's workload that just happened to target groups that the administration and union does not like. Sort of a screwed up form of serendipity. Wrong, but fortuitous.

There is, however, a fourth theory, It is that this particular form of abuse was baked in the books. There are certain parts of our society - think university faculties, legacy media operations and certain government offices - that are extraordinarily intellectually homogeneous and conformist. The assumption the groups like the ACLU or Voces de la Frontera who advance highly controverted  conceptions of the public good about which persons of different partisan persuasions differ - are somehow political and advance goals that "everyone" shares is in the air.

Organizations that advance different ideas about the public good - preferences for limited government and individual liberty in areas other than personal behavior - are seen as - here's one for you - the "other" - people who advance goals that "everyone" does not share and who are, therefore, "political" in a way that the ACLU and Voces are not.

If that's so, then no one needed to call for behavior that almost everyone know recognizes are reprehensible. It arose organically.

There is a lesson there for people who believe that ideological diversity is not important - that professors, reporters and bureaucrats are super men and women who can somehow arise above the biases that weigh down the rest of us.

There is a lesson there for those, like our President, who tell us not to fear concentrations of power because we can trust centralized decision-makers to behave in neutral and enlightened manners. One of the reasons that conservatives and libertarians prefer markets is not that (as the left mistakenly charges) that we think markets and business are always right, but that markets and businesses are far more likely to be allowed to fail when they are wrong.

The tragedy is that these lessons are likely to be lost on those that most need to learn them.

Cross posted at Purple Wisconsin

Monday, May 20, 2013

Pro-life and Pro-state?

My Purple Wisconsin colleague Alex Runner has written a nice post about what he sees as the implications of being pro-life. To be truly pro-life, in Alex' view, requires the support of some level of government support for persons with unwanted pregnancies and other redistributive programs.

Up to a point, of course, very few people disagree with that. While Democrats act like Republicans want to completely abolish "social safety net programs," I have run across precious few who actually do. (My own view is that such programs should be generous, temporary and contingent; but that's another topic.)

What Alex means is that, to be more effectively pro-life, Republicans ought to support more goverment spending than they do.

It seems to me that relatively little of our current political squabbles are about the social safety net, by which I mean support for person who, without aid, would be in poverty. ObamaCare, Social Security, Medicare, public employee collective bargaining, tax rates - all of these may touch upon social safety net programs but they are primarily about persons who are not poor. Indeed, neither political party spends much time talking about poor people.

So I might stipulate that effective anti-poverty measures are a good thing. But that leaves much to talk about. Here are a few points that I would raise in response to Alex' thoughtful post.

First, there is no necessary moral connection between insisting that human life not be taken and one's willingness to cover the costs associated with not taking it. It may well be expensive - and hard - for you not to kill your child. That doesn't meant that society has to hold you harmless for doing the right thing.

Second, the most effective anti-poverty program has been capitalism. There is no close second. Government subsidies will always be a poor subsitute for a prosperous society. The War on Poverty pulled very few people out of poverty. While it certainly offered some amelioration of the condition of poor persons, it did so quite inefficiently and in a way that has done little to improve the long term prospect of beneficiaries. To the extent that high levels of taxation and redistribution retard economic growth, they may be more likely to create than reduce poverty.

Third, safety net programs are not an unalloyed good. They can foster dependency and retard family formation. To the extent that they do this, they often an awful bargain - immediate relief in exchange for long term destitution. In the great run of cases, the goverment will never be able to do for you what you can do for yourself. It will never be able to provide the support that a family can.

Indeed, I would argue that one of the tragedies of modern liberalism is it's willingness to believe that the state can function as a person's family. It cannot. Christian Schneider's excellent report on the state of marriage in Wisconsin and supporting op-ed reflect what is perhaps the largest cause of poverty and dysfunction in our society. Government contributed to it, but, unfortunately, can do little to reverse it.

Finally, assistance to poor persons is not the exclusive province of government. Alex complains that private charity is too often inadequate but, if that is so, the extent to which government "crowds out" the activities of what are sometimes - but not quite accurately - called subsidiary organizations is part of the problem and not solely a solution. My own view is that, while government social programs will probably always be necessary,  we ought to have a strong preference fo private charity. It does not involve coercion and is less likely to foster the kind of dependency and counter-productive behavior associated with public programs - precisely because it can make the kind of moral demands and provide the moral support that a bureaucracy cannot.

Cross posted at Purple Wisconsin.

Best wishes for Mr. Zielinski

News is that Graeme Zielinski has resigned from the employ of the state Democratic Party. There is no sense in sugar coating Graeme Zielinski. He cultivated a singularly mean spirited and hateful public persona. One can only hope it was an act. That he actually believed the things he said is a scary thought.

My own view is that these scorched earth verbal ejaculations are of little value and counterproductive. But folks on both the left and right continue to indulge them, so I suspect I am wrong. Maybe they keep the base riled up and make some headway among the undecided - and largely uninterested and uninformed - voters who decide close elections.

Still there are things that are bigger than politics. He says he is facing a "health scare" and I wish him well.

When he comes back, I hope he will have learned something. You can have strong opinions without hating people who disagree.

Cross posted at Purple Wisconsin

Friday, May 17, 2013

The lessons of serial scandal

As George Will suggests today, the real import of the perfect storm of scandal that has surrounded the Obama administration isn't that it highlights the dishonesty and political venality of the current administration.

To be sure, the extent of corruption and will to power that is suggested by the Benghazi lies and the abuses of the IRS and DOJ are disturbing but what it even more concerning is the way in which the source of this wrongdoing was baked into the Obama administration from the outset.

More than most, the presumption of the Obama administration was that it would do very big things.  The assumptions were that 1) the country is a very troubling place and 2) "progressives" have the knowledge and capacity to make it better. There were relatively few limits to this hubris. From the day of his nomination, Obama literally promised to make a new world; to "begin to" heal the sick and stem the rising of the seas.

The arrogance of this is jaw dropping. The overpowering self righteousness was always at risk of dissolving into self-justification. If indeed we are charged with righting a cruel and indifferent and self destructive nation, then it is imperative that we remain in power. If we are the ones that the world has been waiting for, then little things like politics (i.e., the opinions of others) and procedural regularity are mere distractions.

"What difference, at this point,  does it make" that we deliberately misled the public about a terrorist attack that resulted in the murder of an American ambassador if that's what it took to ensure the re-election of the President? The IRS and AP events were wrong, but certainly ought not to cause us to worry about the Government managing our health care and histories. Do not fear the threat of tyranny, the President tells us, even as we see it all around us.

Will puts it this way:

Liberalism’s agenda has been constant since long before liberals, having given their name a bad name, stopped calling themselves liberals and resumed calling themselves progressives, which they will call themselves until they finish giving that name a bad name. The agenda always is: Concentrate more power in Washington, more Washington power in the executive branch and more executive power in agencies run by experts. Then trust the experts to be disinterested and prudent with their myriad intrusions into, and minute regulations of, Americans’ lives. Obama’s presidency may yet be, on balance, a net plus for the public good if it shatters Americans’ trust in the regulatory state’s motives.

Cross posted at Purple Wisconsin.

Monday, May 13, 2013

Here's the truth about the streetcar legislation

There have been repeated public reports that the Joint Finance Committee has approved a provision in the budget that would "block" the Milwaukee Streetcar Project. These reports are inaccurate.

The legislation would not prevent the City of Milwaukee from building a streetcar or using federal funds for a street car or  for any other local transit project. All it would do was prevent Milwaukee - or any other city - from forcing utilities to relocate embedded infrastructure without compensation.

Here's why that matters. To build the street car line, WE Energies and a variety of telecommunication utilities will have to relocate utility facilities - cables, pipes, etc. - that are buried in the street along the proposed use. Exactly now much this will cost is unknown, but it could be as much as - if not more than - the projected cause to build the streetcar itself.

The City of Milwaukee has budgeted nothing for these costs. It proposes to force the utilities to move these facilities at their own expense and, presumably, pass that cost on to ratepayers. In other words, people in places like Waukesha and Racine will wind up paying for much of the cost of a street car loop in downtown Milwaukee.

Current law provides that this may occur only if the Public Service Commission finds that imposing such costs on utilities is reasonable. This is the issue that I and my colleagues at the Wisconsin Institute for Law & Liberty have raised before the PSC on behalf of Brett Healy and 34 other WE Energy rate payers. (We were subsequently joined in raising the question by a number of the potentially affected utility.)

The issue is complex, but one of the arguments that we have advanced is that the imposition of these costs is unreasonable because the street car is "proprietary" in nature, i.e., it not an exercise of the police power to protect the safety, health and welfare of the public but an attempt to engage in an economic enterprise intended to confer a local economic benefit. This distinguishes it from things like road expansions and other projects for which utilities can be made to relocate facilities at their own expense.

In these circumstances, we have argued, the City ought to pay for what it wants. If the street car is the wonderful project that it is claimed to be, then the City of Milwaukee ought to pay for it.

The proposed legislation simply requires that they so say. It only provides that shifting these costs to rate payers who have had no say in whether the project ought to be built and who, for the most part, could not benefit from it is unreasonable as a matter of law.

If it passes, the City remains free to build it's street car. It must simply pay for the utility relocations. If the legislation does "kill" the street car, City residents don't want to do pay for it.

Purple Wisconsin blogger Jim Rowen suggests that the legislation would violate a 12 year old agreement resolving litigation over an earlier Environmental Impact Statement regarding local transit obligations.

No way. That agreement does not commit the state to any particular project nor does it require that the local funding of any approved project be arranged in any particular way. It is expressly subject to state law and does not - and could not - require that state law be configured in any particular way. It's a desperate argument. It won't work.

Our petition to the PSC was not about the merits of the street car project. But, I have to say, that the justification for the project is astonishingly weak. A street car is a technology that was found to be outmoded and undesirable almost seventy years when fewer people had cars and the population was not as dispersed as it is today. The operating costs of street car per both vehicle and passenger mile are much higher than buses. They are able to move less people than buses. They use more energy per passenger mile. They are notoriously slow and cause traffic congestion. They are, in most applications (there are a few exceptions not applicable here) a notoriously bad idea that would seem to require a theocratic devotion to anything that runs on rails to support.

If the City doesn't want to spend its own money on this, I won't be surprised. But, if that is what happens, it will the good sense of Milwaukee taxpayers and not this legislation that "killed" the streetcar.

Cross posted at Purple Wisconsin.