Tuesday, September 30, 2014

What's the problem with plagiarism?

Not much, according to the Journal Sentinel editorial board. It won't defend Mary Burke -  lifting, without attribution - from the work of others, but it finds the controversy to be a side show. The real question is whether the ideas expressed by the language that Burke stole and passed of as her own are "good ones?'

My guess is that if I lifted one of their editorials and passed it off as my own, the Journal Sentinel's concern would be a tad more urgent. They wouldn't absolve me because the column was "good," they'd go after me because it was "theirs" and would consider me less than honest for taking it.

And rightly so.

The problem is not that Burke borrowed ideas from others. There are few original ideas in politics and the fact that she would recycle policies from other Democrats is not surprising. The problem here is not the quality of her jobs plan - the ideas she passed off as her own were equally bad when proposed by the people who actually wrote them - but one of general competence and integrity.

Professionals - heck, high school students - know that you do not present others' work as your own. If you want to quote the work of others, you attribute it to them. To fail to do so is fundamentally dishonest.

The editorial board excuses Burke by dismissing the plagiarism as a failure to be "careful." Two things.

First, if this is the fault of a staffer or an oversight by Burke herself, it shows that she spent no time, as she claims, "studying " the plans of others. If she had, she'd have known that her plan was merely a cut and paste job. This suggests that she is either 1) lying about her involvement or 2) doesn't know what every fourteen year old knows - you don't crib from the kid in front of you.

Second, her ad "responding" to the charges makes it worse. In it, she characterizes the criticism of her plan as being that it borrowed ideas from others. That's not it at all and she knows it. It's that she copied them and lacked the intellectual honesty - or professionalism -  to say so.

The ad demonstrates that she still doesn't get it.

Cross posted at Purple Wisconsin.

Monday, September 29, 2014

The Seventh Circuit decision in the Doe vindicates no one and nothing

I have a piece up on Right Wisconsin discussing last week's decision in the federal case challenging the John Doe investigation. The decision does not "restart" the investigation (which had already been effectively halted by the state courts) and does not reach the merits of the legal theories pursued by the prosecutors.  Rather, it turns entirely on the perceived need for the federal courts to avoid interfering with state court proceedings. The state courts had already halted the Doe. This was important to the Seventh Circuit's conclusion that there was no need to intervene and that the matter should proceed before the state supreme court.

The closest that the Seventh Circuit got to the merits was in connection with "qualified immunity." The idea is that, even if public officials such as the prosecutors here, have acted unconstitutionally, they are immune from damages unless the unconstitutionality of their actions was "clearly established" at the time they were taken. (They can still be ordered to stop what they're doing.)

As I have written before, there is no doubt that "coordination" is part of campaign finance law. What is heavily disputed is what "coordination" is. As I have written in the past, defining coordination requires defining both its "conduct" (what interactions between a candidate and independent speaker constitute coordination) and its "content" (what type of communications, if coordinated, should be treated as a campaign "contribution").

The issue of what "conduct" might constitute coordination was not before the court in any meaningful way. As I have noted in the past, the prosecutors' view of what may constitute coordinating conduct in this case is quite troubling. But, if that ever becomes an issue, it will be on another day.

The Seventh Circuit did address whether it was clearly established that the "content" of the communications that were potentially coordinated - consisting of only issue advocacy - could never be treated as regulated contributions. The court acknowledged that it may be that they cannot, but that question has not been - or at least was not - "clearly established."  So, even if the prosecutors' theory is ultimately proven to be wrong, they cannot be held liable for damages. That is very important for them as individuals but it does not mean that they are doing the right thing or have not "overreached."

I don't take any position on the "clearly established" issue. The amicus brief that we filed said only that state law governing coordination was, in fact, unconstitutional. I think that it has been pretty clear since 2007 that Wisconsin's law on the content of communications that can be considered coordinated is unconstitutional. That view was greatly strengthened in May of this year, when the Seventh Circuit struck down the definition of expenditures that are regulated by state law. But it is true that no case has held it to be so.   The important thing to note is that the court did not reach the merits of the constitutional issue itself.

Indeed, the court invoked the doctrine of "constitutional avoidance" - the idea that courts should avoid constitutional issues if they can. While the merits of that doctrine in cases like this is debatable, it's a fairly common judicial argument. Here, the Seventh Circuit pointed out that the judge supervising the Doe has already held that the conduct being investigated does not violate state law. If that's so, it said, there may be no reason to ever decide whether the prosecutors' theory is unconstitutional.

Of course, if you believe that the law governing coordination is uncertain - and the Seventh Circuit panel did - it raises an important policy issue regarding the Doe. How do you possibly justify a criminal investigation based on the mess that is Wisconsin's campaign finance law?

Cross posted at Purple Wisconsin

Wednesday, September 17, 2014

Investigation as political warfare - intended or not

My column in the Wall Street Journal on the John Doe investigation and its impact on Wisconsin politics can be found here. The headline for the piece (which I did not write) goes a bit further than the column itself. I am less concerned with the motives of those who have launched what I regard to be an assault on free speech than I am with the consequences of their actions.

Nevertheless, I don't have a lot of sympathy for the prosecutors' complaints about their motives being questioned. The idea that a Democratic partisan launched a more or less unconstrained and unending series of investigations of a Republican looks bad. The appearance of impropriety is heightened by the fact that some of the legal theories that the prosecutors are pushing are highly questionable and the tactics employed - pre-dawn raids and leaning on witnesses - are dangerous overkill when the subject is, at it is here, fraught with free speech concerns.

Chisholm may be pure of heart but he and his colleagues have only themselves to blame for the accusations being made against them. As soon as this was about political activities by Republicans, they should have gotten out. Entirely. Unfortunately, that point arose sometime in the summer of 2010. Over four years later, they still aren't out.

Cross posted at Purple Wisconsin

Free speech for thee and for me

At Right Wisconsin, I write about the incongruity of letting some people called "the media" who are engaged in "journalism" do whatever they want when it comes to conspiring with and supporting candidates, while those who are not in this privileged position cannot.

My point is not to accuse any particular media outlet of plumping for a candidate, although the Cap Times, in sponsoring a rally for the Democrats, does seem all in on that. It is simply to note that they can. Even if you could prove that a newspaper was in the tank and working hand in hand with a candidate or party to influence an election, you'd have no complaint under the law.

My first point is to ask why this should be. Why should the Journal Sentinel or WTMJ or Fox News or MSNBC be able to establish themselves as partners with a political perspective or candidate, while others - who may have to buy time or curry favor with these outlets -  may not?

My second is to suggest a conclusion. Since we'd all recoil at the notion that the notion that the expressive conduct of the newspapers or television stations can be curtailed (at least I hope we would), then maybe we should be more supportive of the speech rights of those who have to buy into the media's privileged position.

Cross posted at Purple Wisconsin

Tuesday, September 16, 2014

Oh the humanity! A citizen speaks.

Earlier this month, I and my colleagues at WILL filed an amicus brief in the civil rights case brought against the John Doe prosecutors. Our clients were Brad Smith, former Chair of the Federal Elections Commission and one of the country's leading academic experts on campaign finance law. We did not address the abstention and immunity issues that dominated the oral argument in the case last week. Our interest was in the constitutional problems created by the overly expansive interpretation of the law by the John Doe prosecutors.

We said that the First Amendment requires a narrow definition of what can constitute "coordination" between a candidate and an independent group engaged in speech. We argued that this is necessary both with respect to the "conduct" that might be considered coordination (i.e., it can't be fundraising, the use common consultants) and the "content" of speech that can be considered coordinated (i.e, it can't be issue advocacy) The reason, we said, was the the law would otherwise deter persons from exercising their constitutional rights to both speak to elected officials and candidates and to speak to the public. Wisconsin law does not provide an adequately narrow definition and must either be declared unconstitutional or limited to express advocacy, i.e., speech that can be interpreted in no way other than as a call to elect or defeat a candidate.

Perhaps the Seventh Circuit will not address that now, but, some day, either it or the Wisconsin Supreme Court is going to have to.

But the danger of the John Doe prosecutors expansive theory of "coordination" is illustrated in a recent piece by Dan Bice and Bill Glauber.

Here's what happened. Steve Einhorn, a local businessman, philanthropist and political activist, becomes interested in the question of voter fraud.* Rightly or wrongly, he believes that it happens and he wants to do something about it.

But he doesn't know exactly what happens when a person votes illegally so he asks Scott Walker, his County Executive and then a candidate for Governor, what the penalties for voter fraud are. He doesn't tell Walker what use he plans to make of the information and the Walker's response - from his constituent services staff - is factual.

Einhorn then takes the information and uses money from his family foundation to put up billboards reminding the public that voting illegally is a crime - much like billboards and public service ads remind us that shoplifting or drunk driving will get you in a great deal of trouble. The billboards mention no candidate for public office. Walker did not ask Einhorn to put the billboards up and, in fact, Einhorn never told Walker that he intended to do so.

Why is this a story?

Steve Einhorn had a constitutional right to speak to an elected official about an issue like voter fraud. He had a constitutional right to speak to the public about that issue. To suggest that exercising the first right cancels out the second is wrong from about every perspective I can think of. State law doesn't say so. Neither the state or federal constitution would permit it. It would be immoral to punish people for expressing their point of view. It would be bad public policy because it would suppress a free and open discussion of the issues.

But it's a story for two reasons.

One is that the John Doe prosecutors are wrong on the law and have launched a scorched earth investigation based on evidence of activities that aren't illegal and could not be made so. Even though I can't imagine that even they would say that this was a "coordinated" political communication, becoming part of the process - and the object of "breaking news" - becomes a punishment in and of itself.

The second is, that because they have launched this investigation into only one side of the political debate (based upon their expansive and erroneous view of the law, they could have easily started to investigate liberals and Democrats), there is a prurient and political interest in mucking about documents that should never have been disclosed. Give me the chance to go through tens of thousands of documents related to the political activities of Democrats, unions and liberal advocacy groups and I suspect there'll be a few interesting stories to tell, even if there is no more evidence of illegal activity than the Doe prosecutors have found.

The billboards have been criticized as an effort to suppress minority voters. Why is this so? Certainly the critics don't mean to suggest that minorities are more likely to vote illegally. We don't believe that reminding people that shoplifting is illegal dissuades them from entering stores. These billboards were not, as is often claimed, put up only in minority or Democratic neighborhoods, I saw one near my house in Mequon - an area where, near as I can tell, the only Democrat is my very nice neighbor, Frank.

Of course, it's alright to criticize someone's speech. If you hold the silly view that reminding people that state law does, in fact, make it a crime to vote illegally is some awful act, knock yourself out. But some one who stands up for an issue that he or she thinks is important, should not get dragged into a puffed up criminal investigation. Nice times we live in.

Cross posted at Purple Wisconsin.

*For what's it worth, I have worked with and quite like Steve and his wife Nancy, but I'd say the same thing about anyone in this situation.

Friday, September 05, 2014

Auto workers in the Five Percent?

At Purple Wisconsin, Rudy Willis posts an oft-cited statistic that German auto workers make $67/hr vs. $ 33/hr for American auto workers. The reason, he says, must be unions. Unionize and American assembly line workers could be making six figures as well.

Really? Is the absence of unions all that stands between us and $ 140,000/yr factory workers? This is one of these factoids that can't possibly be true - at leat without substantial qualification - and it turns out that it isn't.

The $ 67/hr figure includes benefits. Fair enough. But, remember, the American auto companies are unionized as well and  that type of "all-in" calculation has also led to estimates that UAW workers make - or made before the auto companies went belly up - $ 75/hr. (These numbers have been criticized because they included retiree benefits but these have to be accounted for somehow.)

So maybe unions can - and have - resulted in huge salaries for autoworkers in the US. But the Big Three have certainly not done well enough to continue paying them. The troubles of the American auto industry is not entirely due to labor contracts, but they are certainly part of the picture.

Now there are auto workers in America who are not unionized. They tend to work for foreign manufacturers - like German companies -  who outsource their production to America. Perhaps if German autoworkers weren't making $ 67/hr, they wouldn't have to.

But, putting that aside, how can German companies pay those salaries and remain competitive. It turns out that they don''t. German "autoworkers" don't make $ 67/hr. Some do. Others are contract employees or temporary workers or work for subcontractors - because, truth be told, there is no alchemy that can pay assembly line workers like they were pediatricians.

There's no way around the facts. Unions are legalized cartels. That is not an accusation, it is the theory behind unionization. The idea is by allowing employees to form a cartel, they will have more market power against an employer who is also assumed to have oligopolistic power (i.e., there are not many competing employers) The result is necessarily some combination of higher wages, lower profits, higher prices and lower employment depending on the structure of the markets or, as we used to be told by our economics profs, "the shape of the curves."

In competitive markets - and the auto industry has become much more competitive in the past 40-50 years - cartel wages can't be absorbed which is one reason that the American companies have gone south and the Germans have minimized their use of people who make $ 67/hr.

Cross posted at Purple Wisconsin.

Thursday, September 04, 2014

Would you denounce a mosquito for biting you?

Of course, Debbie Wasserman Schultz' comments using domestic violence as a metaphor for Scott Walker's comments  are bizarre and reprehensible. Beating up women is a horrible thing. Suggesting that it is somehow like disagreeing with the Sage of Ft. Lauderdale (successor to the inestimable Alcee Hastings) on the rules for calculating damages in employment discrimination cases or on the minimum wage is insulting to victims of actual domestic violence, conservatives and rationality.

Or it would be if Debbie Wasserman Schultz was someone who is supposed to be taken seriously. But she's not. Her job is not to offer thoughtful and persuasive arguments for the left. As chair of the DNC, her role is to be a cheap shot artist; someone who strings together pejoratives to inflame the base and rile up donors. You could actually program software to do it. To blame her for being ridiculous is like criticizing a shark for feeding. It's her nature.

Cross posted at Purple Wisconsin.