What was wrong with the Doe

In the wake of the Wisconsin Supreme Court's decision on the John Doe investigation, SpeciaL Prosecutor Fran Schmitz issued a strident statement criticizing the Court's decision. Losing an important case is always disappointing and a lawyer is certainly free to publicly differ with the outcome. But Schmitz' statement is revealing.

He says the Court's ruling "defies common sense" because now someone who contributes $ 25 to a candidate will have his or her name disclosed while someone who gives $ 100,000 to a group who closely coordinates with a candidate will not. That may be so and it may not be desirable, but it is a function of Wisconsin's outdated campaign finance law and not some distortion of that law by the court.

Explaining this stuff in a column length piece is difficult, but here is the problem in a nutshell. The state's campaign finance law applies only to expenditures undertaken for a "political purpose." The statute defines this as anything done to influence an election. Every lawyer with a passing familiarity with campaign finance law knew that this definition was unconstitutional. To avoid that problem, the Government Accountability Board has sometimes - but not always - made clear that the law is limited to express advocacy - calls to elect or defeat a candidate - or its "functional equivalent." Something is the "functional equivalent" of express advocacy only if it is susceptible of no interpretation other than a call to elect or defeat a candidate. This is not my opinion. It is textbook constitutional law.

But the Doe prosecutors were attempting to apply the law to expenditures for things that were not express advocacy or its functional equivalent, i.e., to things that are normally not subject to Wisconsin's campaign finance law. They justified their actions by alleging that these expenditures were "coordinated" with the Walker campaign. The concept of coordination has long been known in campaign finance law but little understood and rarely explored. Wisconsin law does not adeaquately define it or make clear the type of expenditures to which it might be applied.

That's a huge problem. When the state seeks to regulate political activity, it must do so in a very narrow and very clear manner. If it wishes to treat coordinated expenditures as contributions to a candidate, it must adequately define both the conduct that conduct that comprises "coordination" and the content of speech that might be considered "coordinated." This is essential because a failure to do so will deter constitutionally protected speech.

Because its definition of "political purpose" is too broad (and, I would add, because it offers no adequate definition of coordination), Wisconsin's law did not clearly and narrowly apply to coordinated issue advocacy.  For that reason, it could not be applied to the activity being investigated by the Doe prosecutors. While Schmitz might think that such a result "defies" common sense, every court that has considered the merits of his position has rejected it. The judge presiding over the John Doe proceeding itself rejected it. The United States District Court for the Eastern District of Wisconsin rejected it. (While the result in that decision was reversed on appeal, the reversal was on procedural grounds and not the merits of the prosecutors' theory.) And, now, the Wisconsin Supreme Court has rejected it.

If that's not convincing enough, the Doe decision was very much in line with a  decision of the Seventh Circuit Court of Appeals which, in a case that did not involve allegations of coordination, also limited the scope of Wisconsin's campaign finance law to express advocacy. It may well be possible for the legislature to pass reasonable disclosure requirements for certain forms of issue advocacy that have been coordinated - in very clearly defined ways - with candidates. If Mr. Schmitz wants the name of that $ 100,000 donor disclosed, he ought to ask the legislature to rewrite the law, not try to throw people in jail.

And therein lies the real tragedy of this episode. I have no problem with lawyers talking aggressive legal positions. I frequently tell my colleagues that if we don't lose a few cases, we aren't trying hard enough to push the law in the right direction. But we don't have the power to send men with guns to people's homes. We can't lock people up. Particularly when the conduct in question involves constitutionally protected political speech, it is absolutely not proper to advance aggressive theories of the law in pursuit of criminal prosecutions.

And this brings us to the raids. Schmitz objects to the Court's characterization of the details of the raids. It doesn't matter. Let's step back and consider what happened here. At the instigation of the Democratic prosecutor of Milwaukee County, a five year long investigation into one side of the political spectrum was conducted. In it's initial iteration, it found almost nothing that it set out to find. That Democratic District Attorney doubled down and launched a new probe. In aid of this latter investigation, prosecutors blanketed Wisconsin's conservative infrastructure with astonishingly broad subpoenas and launched pre-dawn raids on the homes of certain activists. They told the targets that they could tell no one what was being done to them.

There is no dispute about any of that and, quite frankly, other details about the raids don't matter. If true, they merely aggravate the offense. Treating political activists like drug traffickers is highly unusual and sends a clear message to others. Get involved in politics and you may be treated like a criminal.

While Democrats are decrying the state Supreme Court decision, they ought to be relieved. It would have been short work for a Republican prosecutor to launch a similar probe into Democratic operatives. That would have been just as wrong, but if the Doe had been permitted to continue, aggressive investigations of one side by the other would have become the new normal in Wisconsin politics.

And that would defy common sense.

Oh, please! The GOP did not "end the weekend."

In describing last week's budget, a number of commentators have suggested that the legislature has "ended the weekend." This is because state law will no longer forbid people from working seven days in a row without the permission of the government. Wisconsin will now permit them to do so voluntarily. Critics fear that consent will be "coerced."  Such coercion would, of course, be illegal and, while it would also be unlawful to fire an employee for complaining of coercion, some workers may be reluctant to do so and retaliation might be hard to prove. Coercion might have happened under the old law (i.e., employers demanded seven days in a row even though it was illegal), but it is certainly easier to establish that a person worked seven days in a row than to prove he did not "really" consent to do so.  One commentator went so far as to say that, under the new law, a day off  will be restricted to the "privileged few."

Here's a fact little known by our friends on the left. In the actual world (you know, the one we really live in), all sorts of good things exist that the government does not make mandatory. We know that the GOP did not end the weekend. We know that days off will not be limited to the "privileged few."  We know these things because there are 37 other states that permit people to work seven days in a row. The weekend is alive and well in each and every one of them. In the vast majority of cases, employers have to offer time off in order to attract workers.

It certainly is possible that there will be some cases in which persons who do not want to work a seventh day will feel pressured to do so -  just as, under the old law, there have been cases in which persons who did want to work seven days in row were prevented from doing so. I have no way of knowing which group is larger, but I am fairly certain that the government does not either. Even if we assume that the former group is much larger than the latter, I have no way of knowing how employers react to an absolute prohibition on people working seven days in a row. While it was possible for employers to ask the government for a waiver, doing so is expensive (for both taxpayers and employers) and there is absolutely no reason to think bureaucrats will have any way of knowing when permission "should" be granted.

Certainly a mandatory day off law will impose inefficiencies and increase the cost of labor. Perhaps instead of hiring a full time person, businesses hire two part-time employees. Others may reduce staffing levels. These effects are hard to identify, but they there.

So we know that a mandatory "time-off" law will prevent some workers from doing what they want. It will impose costs on some employees (for example, in the form of reduced hours) and businesses. Those businesses most effected may be Mom and Pops with few employees and less scheduling flexibility.

None of these costs can be ignored. They must be weighed against the benefits of a law that prohibits even voluntary work for fear that some workers will be illegally coerced and unable to prove it. Do the benefits of a mandatory day off requirement outweigh the costs? I don't know, but it seems very unlikely. Freedom should be the default rule. The legislature of Wisconsin - and 37 other states - has got it right.

Cross posted at Shark and Shepherd home page.

There's more to the Obergefell decison than same sex marriage.

I appreciate that people who want civil marriage to include gay and lesbian couples are going to applaud the decision in Obergefell v. Hodges. If you get what you want or what you believe to be right, it’s easy to overlook how it happened. But I want to suggest that all of us, no matter how we feel about marriage, should be deeply disturbed by the Supreme Court’s decision.

 Here’s where you have to start. Five members of a group of nine lawyers decided that the marriage laws adopted by the people in 35 of the 50 states cannot be enforced. These five lawyers – who we did not elect and cannot replace – “found” that constitutional language adopted in 1868 means that no state can define marriage in the way it was defined by every society in human history until 2001. Not only was the traditional view (which was shared by the President and putative Democratic nominee until, figuratively, about six minutes ago) wrong, the Court says, but it was so egregiously wrong that it can no longer be permitted - no matter what a political majority may want.

 Think about this. In applying principles like “liberty” and “equality,” it is essential that courts develop disciplines and limitations that will, as much as is possible, anchor their meaning in some source of authority other than the personal preferences of the judges who happen to be deciding the case. If this isn’t done, then judging becomes indistinguishable from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the "dead hand of the past" but to recognize that it was the consent of a past generation  that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to.

The traditional guideposts and practices that the Supreme Court has developed for interpreting the Constitution’s guarantees of “equal liberty” and “due process” make it extremely difficult to find a constitutional obligation on the part of states to extend their marriage laws to same sex couples. Don’t take my word for it. When Justice Elena Kagan was nominated to be Solicitor General in 2009, , she explained that by “the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage. “

 This is not to say that one cannot attempt to argue for such a right using commonly accepted modes of legal analysis. While I disagreed with her conclusion, Judge Barbara Crabb, in striking down Wisconsin’s limitation of marriage to unions of one man and one woman, attempted to do just that and did it about as well as it can be done.

But in Obergefell, Justice Kennedy did not even try. His opinion might be a persuasive political argument, but it bears resemblance to law. While he suggested that a right of same sex marriage is rooted in the Constitution’s express guarantee of equal protection of the laws, he did none of the work that equal protection analysis requires. That would have required him to identify the standard for assessing distinctions drawn on the basis of sexual orientation (or, some would argue, gender) and then carefully balance the harm caused by the limitation of marriage to male-female unions and the reasons that a state might do so. You won’t find that in his opinion

Instead, Justice Kennedy emphasized the Constitution’s injunction against depriving persons of liberty without “due process of law.” The Court has, on rare occasions, read this provision to mean that there are certain things that the government can’t do even if does extend due process.  (If this strikes you as odd, it should.) Those cases have, from time to time, recognized a fundamental right to marry, even though the Constitution itself says nothing about marriage.

 This creation of such extra-textual “substantive due process” rights is quite controversial, but let’s put that aside. No previous cases involved anything other than the traditional view of marriage as a male-female union. Each one involving the right to marry made the challengers behavior a crime.  That was not the case here. There’s no getting around the fact that, for better or worse, same-sex marriage is a very dramatic change and the idea that our Constitution compels it ought to give one pause.

 If you were arguing for a change in marriage law in the legislature, you’d have an easier task. You could say that it is morally right to let gay couples marry. You could claim that it is good public policy to use marriage to facilitate same-sex relationships. But the Supreme Court has no authority to tell states that they cannot do something simply because a majority of its justices think they’re wrong and it just isn’t fair. That’s not judging. That’s legislating.

 The danger – the reason that you should care even if you support same-sex marriage – is that lawyers work by analogy. In Obergefell, Justice Kennedy says that there is some type of constitutional right to express and define one’s identity. Even if you are sympathetic to the idea of rights that are not themselves expressed in the Constitution, this approach is completely unbounded. It can be employed in support of just about any rights claim and if it was proper to use it in Obergefell, then it’s hard to see why it won’t be proper to use it again. If today’s “new understanding” is that the Constitution means that marriage laws must include same sex couples, tomorrow’s might mean that I have the right to polyamorous marriage or to pay my workers whatever they’ll agree to take or to avoid military service. The contours of the Constitution and the restrictions it might place on democratic decision-making will be limited only by the human imagination.

 In a scathing dissent, Justice Scalia wrote, that while it was not important to him what the law said about marriage, “[i]t  is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

 That should be important – and troubling - to all of us.

Cross posted at Purple Wisconsin.

The Desire to Limit Open Government is a Bipartisan Taste

Two days ago, the Joint Finance Committee inserted language into the proposed state budget that would have substantially - actually almost completely - immunized the legislature from the state's open records law. It's a very bad idea and it was greeted by spontaneous opposition from groups across the political spectrum, including my organization, the Wisconsin Institute for Law & Liberty who released a joint statement with the John K. MacIver Institute for Public Policy.


There is a reason we issued the statement in collaboration with our friends at MacIver. This time, it is Republicans who want to restrict government transparency. Four years ago, it was Democratic legislators who stonewalled MacIver's request for information. We represented MacIver in a lawsuit against Sen. Jon Erpenbach (D- Middleton). In defending against our suit, Sen. Erpenbach, at great public expense, argued, in part, for a view of the open records law that was just as bad - just as protective of the legislature's desire to keep things secret - as what the JFC attempted on July 2.


We won. Sen. Erpenbach's attempt to largely immunize the legislature from the open records law failed. The JFC's effort will fail as well. I predict that it will be pronounced dead, dead dead before noon on Monday. If it ever did get passed, my guess is that the Governor would veto it.


I understand that people in government don't much like the open records law. Compliance is time-consuming. The law was passed before the digital age - before things like e-mail exponentially increased the number of "documents" that individuals and organizations generate. In a world of simple-minded social media and hash tag philosophers, any effort to be candid in writing is likely to be turned into distorted attacks by partisans who either are incapable of understanding - or have no interest in - context.


Perhaps the law can be improved.  But, as I said in our statement, transparency is the price you pay when you get to spend taxpayer dollars.


Cross posted at Purple Wisconsin