A campaign about nothing

I have a column on the state Supreme Court race up at National Review Online.

One of the interesting things about this race is the "stealth" nature of the challenge and the minimalist nature of the stated case against incumbent Justice Pat Roggensack. It would be one thing for the challenger Ed Fallone (who is certainly a smart and capable law professor) to argue, for example, that he wishes to take the Court in a different substantive direction. That appeal would not persuade me, but it would at least provide voters with a coherent choice.

Instead, the argument seems to be that the Court is dysfunctional (a view that is overstated) and that replacing one of its seven members would somehow change that.

If this seems like weak tea, it is because it is. The case against Roggensack as the source of - or a major contributor to -  the Court's problems seems to be that she 1) doesn't think that the Court's problems are currently impeding its work (there is little or no evidence that they are), 2) shared the impression of at least two other witnesses that the altercation between Justices Bradley and Prosser wasn't quite as Justice Bradley describes it, 3) did not believe that, as a witness to the latter incident, she should sit as a judge in a case arising from it, and 4) believes, with a majority of the Court and the United States Supreme Court, that recusal decisions should be reserved -at least in the great run of cases - to individual justices and not to the Court as a whole.

In connection with the latter point, she believes - again with at least a majority of the United States Supreme Court - that campaign contributions alone do not create a duty to recuse, although she has never said that contributions may not, under the proper circumstances, form a basis for recusal.

One can disagree with these positions or quibble on the details. One could, for example, say that she should have disregarded the normal rule against being a witness and a judge in the same case because it was "necessary" to do so. One could argue that there ought to be a per se rule of recusal in the event of legal campaign  contributions over a certain level - even if that would make it virtually impossible to raise money and do the job that a justice has been elected to do. One might even say that Roggensack should have seen what Bradley - and not Justices Ziegler, Gableman and, to a lesser extent, Chief Justice Abrahamson - saw during those few seconds in June of 2011. (Although how any of us who were not there are supposed to be able to make that judgement is beyond me.)

But, however you put it, these seem to be the chosen campaign themes. And what it boils down to is an appeal - not for peace between the Court's factions - but to enhance the numbers of one at the expense of the other. Candidate Fallone comes not to bring peace, but to bring a sword.

And it is hard to see how that would add up to a case for defeating an incumbent justice. As I wrote on NRO, the only two incumbents who had ever been elected to the Court to subsequently lose are Justice Samuel Crawford in 1855 and Chief Justice George Currie in 1966. Crawford voted to uphold the Fugitive Slave Act and Currie voted to remove the last legal obstacle to the Milwaukee Braves to move to Atlanta.

As they say on Sesame Street, one of these things is not like the other ones.

Cross posted at Purple Wisconsin.

John Doe RIP

My initial reaction to the termination of the Joe Doe investigation can be found over at Right Wisconsin. (Sorry, it's behind a pay wall.) I am not one of those conservatives who claim that the investigation was a witch hunt (I don't pretend to know) but it was troubling both in its conception and execution. It has been my view that we are not served by vaguely worded statutes defining political crimes that can be interpreted to apply to both true abuses of power and garden variety politicking. Expecting those crimes to be enforced by partisan elected officials - even those with the best of intentions - further aggravates the matter. Ordinary politics ought not to be criminalized.

Nor are we served by the kind of partisan irresponsibility that marked much of the public discussion of the Doe. I found it shocking that a member of the bar running for Governor allowed rampant speculation about a legal proceeding to be advanced in his name. I understand that politics ain't bean bag and a political campaign can be a bit like a fist fight. You could hit in the face and you lash back. But all the sepia toned ads about Scott Walker and Dragnet-style Democratic party websites would look silly today if they had not been so irresponsible then.


Cross posted at Purple Wisconsin.

Mad dogs and communications directors

There is no real point in getting upset over Democratic Party official Graeme Zielinski's comparison of Scott Walker to Jeffrey Dahmer. Zielinski steadfastly refuses to behave like someone who ought to be taken seriously and so I don't. (In fairness to him, he did apologize which is, I suppose, a baby step toward reform.)

What I find intriguing is why the Democratic Party continues to put this guy front and center. His latest bout of political Tourette's was hardly the first and may not even have been the worst.

I  would find it easier to believe that Zielinski is a creation of the Koch Brothers - put forward to make the Democrats look bad - than to think that this is the guy who rational people (and, no, I don't think that rationality is limited to one side of the aisle) would want as a spokesperson. If he didn't exist, I would think that the Republicans would have to invent him.

But I may be wrong. While he may have gone too far this time, he has remained a spokesperson after saying some pretty outrageous things. I have to assume that this is at least a calculated - if not necessarily smart - decision.
That may say something about the state of our politics. It may be that hate arouses the base and that someone willing to spew it serves a purpose. My side has some flamers as well although I can't think of one who has remained in an official capacity after repeated bouts of public rabies.
Pity that.

Cross posted at Purple Wisconsin.

Not all cuts are created equal

Apparently a average tax cut for Wisconsin taxpayers of 2% is too small to care about.

But an even smaller reduction in federal spending - or at least its rate of growth - due to sequestration is a disaster.

Who would have known?


Cross posted at Purple Wisconsin

Spinning on tax cuts

The headline in the paper read "Much of Walker’s proposal would go to top 20%, study says."

This, the ensuing article tells us, "complicates" the notion that Walker has proposed a middle class tax cut.

Not really. The same article points out that 80% of the proposed cuts go to persons making $ 162,000 or less.

Sounds like a middle class tax cut to me.

We saw the same claims made with respect to cuts in the federal income tax shepherded through Congress by President Bush in 2003. For years, we were told that the former President had "cut taxes for the rich" when, in fact, he had cut taxes for everyone. (In fact, the Bush tax cuts were weighted slightly toward lower income taxpayers.)

That this story was, at best, incomplete and, at worst, misleading was ignored until those tax cuts were about to expire at the end of last year. It turned out that getting rid of the tax cuts "for the rich" was going to raise the bejesus out of taxes on the middle class.

Although Walker's political opponents will claim that his proposed cuts are slanted toward upper income taxpayers, the opposite is true. The lower your income, the larger your the of your taxes that the proposal will cut.
Of course, in a world where upper income taxpayers pay the most tax, a reduction in tax rates are going to benefit those taxpayers. As Willie Sutton put it, that's where the money is.
Of course, one can always argue that whatever share that they do pay ought to be higher. In theory, the answer to "how much do you need" can be "how much do you have."
But one may argue, instead, that rate reductions are most likely to lead to increased economic activity because they increase the marginal return on working and investing.

In any event, the Governor has proposed a middle class tax cut.

Cross posted at Purple Wisconsin.

Let my people go

When I was a kid, I heard a lot about the grave and intrinsic evil of residency requirements for municipal employees. Dad was a firefighter for the City of Greenfield which at the time (but no longer) required its fire and police employees to live in the city. He's basking in the Florida sunshine these days, but must be pleased (I haven't had a chance to ask) with Governor Walker's proposal to slay his old enemy for all times and all places.
Ironically, my parents wanted to move a few blocks from our house on Forest Home Avenue to Milwaukee. Today, residency requirements are largely, if not exclusively, about the desire of the City of Milwaukee to keep municipal employees on its tax rolls. There seem to be two arguments for residency. The first is that those who "benefit" from working for the city to pay city taxes. The second - and, I think, the real - reason for dictating where municipal employees can make their homes is that, if Milwaukee did not create a captive middle class, it would have no middle class at all.
We can argue about whether and why that's true. But I'd argue that residency requirements actually help to destroy the middle class in a city like Milwaukee.
The problem is that it hastens a city toward reaching a tipping point in which an effective political majority takes more from the government than it contributes toward it. This leads to high taxes and a collective unwillingness to challenge entrenched constituencies that benefit from the status quo. Failing institutions - think MPS - become very difficult to reform and middle class families who don't work for the city throw in the towel and head for the suburbs. This cycle, at its extreme, brings you Detroit.
With the exception of a place like Madison or Washington which thrive on tax dollars earned elsewhere, you can't build a thriving city on government. However large you want government to be, there must be a private economy and middle class community to support it.
To be sure, these aren't the only reasons for suburbanization and it is not to say that there aren't a lot of people in Milwaukee with a different vision for the city. Milwaukee, thank God, is not Detroit or even close to it.
But eliminating residency is, I think, more likely to be part of the solution than part of the problem. A city that cannot hold its middle class captive must make it want to stay. That city will be a much stronger place.

Cross posted at Purple Wisconsin.

An interesting filing in the state Supreme Court

Last week's filing by Justice Bradley was ostensibly an order recusing herself on a disciplinary case involving Justice David Prosser. That she would step aside is extraordinary only in the fact that it took her ten months to get around to it. It was clear from the get go that she should not sit on a matter in which she is the complainant.  

But the nature of filing - what Justice Bradley sought to say - was extraordinary and revealing.  

What she wrote was extraordinary because it had little or nothing to do with whether she ought to recuse herself. It largely consists of a reiteration of her allegations with Justice Prosser joined to an expression of displeasure with the law governing the discipline of Supreme Court justices and annoyance that the statement of a number of her colleagues who witnessed the incident with Justice Prosser don't completely corroborate her own. 

As I have written before, there is no support in the witness statements of any of the other justices - including the Chief Justice - that Justice Prosser "choked" Justice Bradley. Indeed, one can read Justice Bradley's own statement as suggesting that this did not occur. All seem to agree that Justice Bradley charged or rapidly approached Justice Prosser – perhaps with her fist or finger raised. 

Beyond that, the statements tend to depart on very subjective points in which the witness characterizes the volume of some one's voice or the rapidity with which an action was taken. Depending on which version one credits, the incident reflects poorly on Justice Bradley or both justices. If you are inclined to the latter view, it is possible to conclude that Justice Prosser was more at fault than Justice Bradley, but that is far from clear. One might well reach the opposite conclusion. It is possible that one might conclude that Prosser (or Bradley) ought to be disciplined, but that result is not foreordained. 

It is understandable that Justice Bradley is committed to her version of events and upset that others don't see things the same way. What is important for purposes of recusal is the resolving the conflicts will reflect on her testimony (which is not undisputed) and even on whether she ought to be subject to discipline. Perhaps all of those questions should be resolved in her favor. But she can't be the one to decide that.  

Normally, a judge in her position would simply step aside without comment on the merits. He or she would not use a recusal order as an occasion to editorialize. Justice Bradley is quoted as saying that her filing is a response to Justice Roggensack’s statement that the court is “doing fine.” But judges normally don’t use court filings to weigh in on their colleague’s campaigns. 

The filing is, nevertheless, revealing. The filing demonstrates the wisdom of the general rule that someone ought not to be a judge in his or her own case. 

Here's an example. Justice Bradley is upset that her colleagues' witness statements will not concede what Justice Prosser has admitted. "They deny," she writes, "what has already been admitted." But a careful - no, even a cursory - reading of the witness statements of Justices Roggensack, Ziegler, and Gableman all reveal consistency with Prosser's statement. Each of them says that Justice Bradley charged Justice Prosser with her fist or finger raised. He put up his hands in response and his hands came into contact with her neck but did not close, i.e., he did not choke her. (In any event, it was not for these witnesses to base their own version of events upon the statement of either of the participants. They were asked to relate what they saw.)

Depending on the details, one might take these statements to warrant no discipline, discipline against either Justice Prosser or Bradley alone, or discipline against both Justices. But they are not inconsistent with Justice Prosser's statement - at least not one the critical point identified by Justice Bradley. 

That she is unhappy with them is all too human. Again, she may be right and they may be wrong. But the filing also demonstrates why she was correct to recuse herself.

 

Cross posted at Purple Wisconsin.

Imagine no religion?

Every once in awhile, you come across someone who has summarized a point exceedingly well. I had that experience recently in reading an interview of George Weigel by Kathryn Jean Lopez regarding Weigel’s forthcoming collection of essays, Practicing Catholic.

While conservatives are often said to be “against” the environment, this has often struck me as claim that is bizarre on its face. No one chooses to poison his own living space. To the contrary, our environmental disputes tend to be about the trade-offs between our desire to use the environment to further human flourishing and the need to protect it from unwise uses. To be sure, one can be wrong about the harm that some course of conduct will cause and human beings will always be tempted to cut corners in a way that they should not, but environmental issues have always struck me as pragmatic and practical questions that are ill served by moral posturing and claims to be “for” or “against” the “environment” or some anthropomorphized geographical feature. It is a question that ought to acknowledge that advanced industrial societies – those who can develop and implement environmental protections – tend to be the cleanest.

This is not an area that is served by a desire to go back to the good old – and allegedly – pristine days. It is not clear to me that the cause of environmental integrity will ever be served by an extreme version of the Precautionary Principle which exaggerates risks and minimizes benefit. Don’t believe me? Think about nuclear power, fossil fuels and the risk of climate change.

Here’s Weigel:

LOPEZ: What do you have against Earth Day?

WEIGEL: I’m generally against pantheism, and what the first “Earth Day” set in motion was the transformation of the environmental movement from a conservation movement (which any reasonable person could and should support) to what is now an increasingly irrational cult, impervious to either the reality of trade-offs in public policy or (if I may quote President Obama and Al Gore) “the science.”

Outstanding.

The President on Guns: Ready, shoot, aim.

One of the dispiriting things about the "conversation" that we are supposed to be having about guns in the wake of the Newtown shooting is how much of it posturing as opposed to dialogue.

The President's posturing at yesterday's news conference is no exception. If the past month is any indication, we are about to see a newer and nastier Barack Obama. Notwithstanding his intelligence, he has always been willing to play the demagogue - given to the non sequitur, the ipse dixit and the ad hominem. All signs are that he is doubling down.

For example, the President believes that it is somehow critical that we ban "assault weapons" as if this term had a fixed meaning. He suggests that the only reason that anyone might oppose or question the ban is, quite frankly, a monster who would sell the safety of children for cash from the NRA. (“Ask them what’s more important — doing whatever it takes to get a A grade from the gun lobby that funds their campaigns, or giving parents some peace of mind when they drop their child off for first grade.”) Surrounding himself with children pressed into duty as props, he says that “if we can only save one life” through some proposed action, then it ought to be done. No one really believes this. No one should.

 

 He spends almost no time explaining what he means by an "assault weapons." He seems relatively uninterested in whether a ban on such weapons will make a difference. Hitting the target seems less important than taking a shot. Doing something trumps doing something that matters.

We had a national ban on statutorily defined "assault weapons" from 1994 to 2004. It seems to have had no discernible income on gun crime. The authors of a University of Pennsylvania study commissioned by the Department of Justice concluded that "we cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

To be sure, there is always room for argument. Mass shootings were somewhat lower during most years of ban's duration. But mass shootings are such a rare event that it is not possible to attribute this to the ban as opposed to random fluctuation . Some, including authors of the Penn study, argue that the ban had too many loopholes and might have had more of an impact over time.

Perhaps. It is a standard refrain on the left that whatever orthodox nostrum that has failed was a "good idea" that did not go "far enough."

But, then again, it shouldn't surprise us that a ban on "assault weapons" may not have much of an impact. Automatic weapons are already illegal in this country. What we now call "assault weapons" amount to semi-automatic weapons with some feature that is said to be "unnecessary" for legitimate use of the weapon.

Only some of these features are relevant to controlling the incidence or severity of an incidence like Newtown. It is said, for example, that a pistol grip allows a shooter to stay focused on his targets or that an extended clip (generally defined as one containing more than ten rounds) allows more shots to be fired in the same period of time. Perhaps true, but helpful- at best - only at the margin.

But why not do something at the margin? Wouldn't a law be justified if it only saved one life?

It might, but in determining whether reform will actually save one life, we have to consider whether any particular restriction will at the same time cost lives. The things that make these weapons less effective in committing crimes also make them less effective in self defense. It does no good to say that these weapons will not frequently be used in self defense. They won't frequently be used to commit crimes either and, when they are, banning a pistol grip or an extended clip won't make them much less deadly. We know that because of our experience with the prior ban on assault weapons.

So, in weighing the benefit of an assault weapon against its costs, we may be comparing very small numbers.

Supporters of a more comprehensive ban point to the experience in Australia where a ban on most semi-automatic weapons, adopted after a mass shooting there and combined with a massive gun buyback seems to have some impact in reducing gun violence, although the extent of that reduction is a matter of debate.

But Australia is not the U.S. There are approximately one hundred times as many guns in circulation here than there were there prior to the ban. Beyond that, the Australian reform – a ban on all semi-automatic weapons and prohibition of purchasing guns solely for personal protection – are political and constitutional nonstarters in the United States.

This is not to say that some further restrictions on guns that might be characterized as "assault weapons" aren't worth considering. It may, for example, be worth placing some limit on the number of rounds in a clip although my guess is that the value, if any, will be more in confrontations between police and criminals than in mass shootings. Nevertheless, there is presumably a limit on the size of a clip – although I’m not prepared to say that it is ten rounds – that won’t make a weapon much less effective in self defense.

Last month, a trio of Assembly Democrats called for a ban on hollow point bullets. That has nothing to do with Newtown, but it might make some sense. On the other hand, I understand that this type of ammunition is considered by some to be more humane and effective in use for hunting. Perhaps a blanket prohibition would not be in order.

The same groups called for psychological screening for those who sign up for concealed carry permits. This too has nothing to do with mass shootings and, in fact, seems more like a thinly concealed attack on the concealed carry law. It is an attempt to make getting a permit more expensive. The idea that we could effectively eliminate problem permit holders by the type of quick and dirty evaluation that would be done in the course of a training class seems improbable.

I am of the view that more training - including hands on instruction with the applicants' weapon - should be required for concealed carry permits. The value, of course, would not be in reducing crime but in preventing accidental shootings. But fruitless psychological evaluations are just an attempt to undermine a law that these legislators don't like.

There are other things that might make sense. I don't see why background checks aren't required at gun shows or for private sales. I understand that criminals will easily evade such a requirement but there seems to be little reason for the law to facilitate sales of firearms to those that would otherwise be unable to purchase them.

But even here, we ought to be realistic about what can and cannot be accomplished. We can't review the medical history of everyone who wants to buy a gun and, even if we could, the likelihood that we could identify the one in a million who might commit an unspeakable act like the one at Newtown seems fantastical.

In response to a post a few weeks back suggesting that "bans" and "restrictions" may not accomplish much, one commenter posted a remark to the effect of "twenty kids dead - watcha gonna do."

 

I'm sure that he thought this was very clever.

But wishing or wanting something to be true does not make it so. I suspect that there are a few things that can be done regarding the manufacture and sale of guns. But to pretend that this would solve - or even make much headway - is to adopt a false sense of security. We have had guns in America for most of our history. We have had semi-automatic weapons for decades.

We have tightened - not loosened - the regulation of guns over the past 50 years. Lee Harvey Oswald bought the rifle that he used to kill the President of the United States by mail using a false name without a background check.

I agree that it is too facile to say that "guns don't kill people, people kill people." But when it comes to mass shootings, it seems that we have changed more than the hardware has.

The complexity of this issue suggests that we have a meaningful discussion of these issues that does not presume bad faith on the part of those with whom we disagree. Pity that the President of the United States does not seem to want an adult conversation.

 

Cross posted at Purple Wisconsin.

Who cares about County Board salaries?

While I run a business that I intentionally decided to locate in the City of Milwaukee, I am not a resident of Milwaukee County. So  whether or not Milwaukee County Board Supervisors are paid a full time salary for a part time job has no direct impact on me. What interests me is the way in which the  controversy has become a liberal/conservative issue. For the most part, it is folks on the left who want Board members to be paid a fairly decent salary for make work.
Let's stop for a moment. I will not take seriously anyone who tries to tell me that the job of a County Board Supervisor is full time. Too many people - of all political persuasions - have done an apparently adequate job of serving on the board while remaining gainfully employed in some other way. One can certainly use a position on the board to enable one to engage in free floating political activism claimed to be for the "benefit" of county residents. But that doesn't mean that it requires forty hours each week to do those things that the County Board must do.
Of course, some people may believe that "activist" supervisors are a good thing. There lies your conservative/liberal breakdown. If you believe that the county government should do more and that people in Milwaukee County need more of what politics can bring, then creating more politicians - people who do politics for a living - might be a good thing. A part-time board may be more likely to stick to knitting and work for a County government that does less. The kind of board members that a part-time salary attracts - because they must earn a living doing something else - may be less likely to see the world as something to be ordered by politics.

Cross posted at Purple Wisconsin.

Milwaukee's children deserve to learn to read.

I was interested in the post by my fellow Purple Wisconsin blogger Barbara Miner regarding a PBS segment on Rocketship schools. I agree with Barbara that you ought to watch the segment. (This link may work.)

But there are a few things about the story on Rocketship that I might add.

I might point out, for example, that, notwithstanding the concerns expressed by Rocketship itself as to whether its learning labs are as effective as they ought to be, these schools have a fairly impressive record of improving achievement among low income students - as the PBS segment itself reports. By at least some measures, they are the leading schools for low income kids in California. Here's one description:

Rocketship Elementary charter school students devote 100 minutes per day to the Learning Lab. This period combines computer-based, individualized lessons on basic math and literacy skills, independent reading and enrichment programs to focus on areas where students struggle the most. Students are assessed every two months to update their individual learning plan. The results are shocking, given the population they serve. Rocketship Mateo Sheedy serves low-income students in San Jose, nearly 73 percent of who are English Language Learners and 78 percent of who qualify for the Free and Reduced Lunch program. Their 2009 API was 926 out of 1,000, making Rocketship the highest performing low-income elementary school in San Jose and Santa Clara county, and third in California. Rocketship’s operating costs are met entirely by traditional government funding yet the hybrid charter school manages to pay its teachers 20% more than teachers in surrounding districts. Thanks to the daily Learning Lab period, Rocketship saves one teacher and one classroom per grade level, amounting to savings of around $500,000 per school per year. They currently have three schools in San Jose, with plans to grow to 30 schools over the next five years.

As is always the case in the Tower of Babel that house the social sciences, I imagine that people will debate these numbers or try to explain them away.  I don't know that the Rocketship model is a silver bullet. Maybe it's not as strong as it seems to be. But I can understand why it is attracting support.

I appreciate that the standard line in the education establishment is that there are no fundamental problems that money won't cure. This strikes me as highly implausible. We have not starved our elementary and secondary schools. We spend more on them than any other developed nation. We have dramatically increased that spending over the past 40-50 years.

We have not enjoyed improved performance. This suggests that a new approach is required. It tells me that "diverting" resources from traditional public schools to new ideas may not be such a bad idea.

The Rocketship model suggests why. One of the things is does is emphasize teacher quality by treating teachers like professionals. Teachers are paid more and, because they are non-unionized, subject to the demands to which other professionals are subject. This is in sharp distinction to the traditional unionized school which, in adopting an industrial union model developed for assembly line workers in the early to mid twentieth century, emphasizes labor relations characterized by uniformity, standardization and job protection.

I might also add that the individual and self directed instruction that takes place in the learning labs (which, incidentally are not "Dilbert-like" cubicles; they look like stations in a college language lab) did not strike me as all that new. It reminded me of the individualized reading program called SRA  that I followed at St. Sebastian School in the '60s.

Finally, the criticism that Rocketship charter schools lack art and music instruction strikes me as awfully precious. The public education establishment, as a general matter, has fought to ensure that choice and charter schools receive less funding than traditional public schools. Attacking them for what they may be unable to offer seems bad form.

Beyond that, while I agree that Milwaukee's children deserve an opportunity (whether in school or not) for art and music, I think that they have a stronger claim to be taught how to read.

Maybe we should start with that.

Cross posted at Purple Wisconsin.

Return of the Ghost?

It's not the type of book that I normally would read, but I spent a few hours (that's all it takes) over the long Holiday weekend reading Eben Alexander's Proof of Heaven. I was struck by the premise - a neurosurgeon with a materialistic view of consciousness and human existence, has a near death experience.

What does he think now?

The story is more striking because Dr. Alexander contracted a relatively rare form of a bacterial meningitis. His prognosis was poor from the onset and became virtually hopeless as he went into a coma and failed to respond to treatment. His subsequent recovery was extraordinary - apparently close to miraculous.

During his coma, he had a vivid NDE that both resembles and departs from what is typical for such events. Alexander, who had always dismissed NDEs as dreams or hallucinations, says the can't do it in his own case because he had lost higher brain functioning while comatose. In other words, his brain could not have produced his experience because it wasn't working.

I can' t really evaluate the scientific arguments. Alexander includes an appendix in which he explains, in quite summary form, why he rejected nine different hypotheses of a material cause for his experience. From what I have read - from Alexander and his critics - explaining what happened is somewhat problematic and turns on whether it is possible to know (based on the tests that we have) that his brain was really "off -line" and whether he might have experienced his NDE after he regained higher brain function.

Alexander's story does not mesh with any particular theological view. (There is apparently a Christian "rebuttal" of his story.) It is, in many respects, a bit hokey and does not quite amount to "proof of heaven." (Alexander did not want to call the book that, preferring the title "An N of 1," referring to the unique nature of his case.)

But it does tee up what brain scientists call the "hard question" - what produces consciousness. While we have managed to correlate brain activity with conscious experience, we haven't established what causes that correlation. Is the brain a source or a filter?

One of the things that I found intriguing - although I know precious little about it - is the implications of a quantum view of reality to consciousness. The standard view of consciousness as mechanistic seems a tad Newtonian to me. Alexander doesn't do more than wave at that, but he does suggest that consciousness is stranger and less linear and contained than we might suppose.

One of the fascinating things about Alexander's NDE is that, unlike most of these experiences, he did not know who he was while he was "up there" (he uses that phrase metaphorically). He did not remember his life. It would be a very different kind of "heaven" if those who inhabit it are dissassociated from who they were in life.

Cross posted at Purple Wisconsin

Peace on blogs

World War I (1914-1918) was unspeakably savage. Worse, even, than the Battle of Wisconsin (2011-2012). Much of the war consisted of opposing lines of entrenched soldiers who inflicted massive casualties on each other yet gained no advantage.

Yet, on Christmas in 1914, some of these opposing lines made their own truce. The Germans decorated their trenches and sang carols. The opposing British and French lines did the same, eventually wandering across no-man's land to exchange gifts. A game of soccer was organized. In some places, the "truce" extended through New Year's Day.

The truce was not universal and not without risk. Some of the men who left their trenches were shot. In all instances, the military commands sternly warned their troops that this must never happen again. Adolf Hitler, then a corporal in the Sixteenth Bavarian Reserve Infantry, is reported to have been adamantly opposed.

So I'm imposing my own Christmas truce in our political wars for a few days. It won't last long. There are important issues on which many of us disagree. I would hope that we can express those disagreements in a way that doesn't presume that the other side is stupid, crazy or venal. Whatever response that you make to a point with which you disagree is not made stronger by stringing together adjectives or personal invective.

I know that's not easy. I have trouble with it myself. So I suspect that we'll continue to have our political battles of Yrpes and Verdun.

But, at least for the next few days, good will abounds here at Shark and Shepherd.

So Happy Hanukkah (although its been over for a while), Stupendous Solstice, Joyous Kwanzaa and Happy Festivus (for the rest of us.)

And Merry Christmas.

Cross posted at Purple Wisconsin

Guns and the limits of law

We really haven't have a mass shooting like the one in Newton. The thought of someone opening fire at small children is beyond horrifying. We don't have a word for it. Having said that, mass shootings have become a depressingly frequent topic

Now that a few days has passed, what does this incident - and other episodes of random gun violence - tell us about the need for stricter gun laws?

There are a few guiding principles for such a conversation. The first is that, however awful, mass shootings probably have little to tell us about what our gun policy should be. They get a great deal of attention but are a small fraction of gun homicides. Placing too much attention on them is likely to create misguided policy.

Second, such a conversation should be tempered by constitutional, political and practical realities. We are not about to ban the private ownership of guns in the United States. It would be unconstitutional and politically impossible. More fundamentally, it would be close to physically impossible. There are, by most accounts, well over 200 million guns in private hands in the United States. Even if we prevented another one from being made or sold, they'd be around for a very long time.

We might prevent sane, law abiding citizens from owning them but they are not the ones that we are worried about. Anyone who would shoot up a school or a shopping center is unlikely to be deterred because it is illegal to oen the gun with which he does it.

Third, the irony seems to be that gun controls laws offer relatively little prevention with respect to situations like this. In most cases, no set of reasonable regulations would have prevented the shooter from purchasing a firearm. The profile for a mass shooter has become almost a cliche. In most cases, he will turn out to be a "quiet guy" who was "strange" but who "no one would have expected" to do what he did. Perhaps people who were close to him knew that something was seriously awry but it's hard to imagine a legal screen that would take into account such amorphous "danger signs." Calls to stop selling guns to people with "mental illness," gloss over the difficulty in determining who those people are.

Fourth, we talk about regulation on the type of weapons that can be sold and the process by which they are purchased.  While it is true that "guns don't kill people,people kill people," it is certainly easier to kill a lot of people with a rifle than a baseball bat. But the list of restrictions that might make a material difference in the mass shooting context is short.

It might be reasonable to limit magazine size, but people who know guns better than I do say that this is not likely to make much difference. One could, I suppose, ban semi-automatic weapons - often misleadingly called "assault" weapons. That might slow a shooter down but how much difference it would make is unclear. Whatever "benefit" there is in such a restriction must be balanced against the cost in reducing the effectiveness of weapons for personal defense. There probably ought to be background checks for private gun sales, but we shouldn't fool ourselves into thinking that would be a momentous reform.

In the end, the desire to make this go away by passing a law is understandable, but misplaced. This type of tragedy cannot be prevented by fiat. It is, in fact, unclear that it can even be made less likely. The problem is not in our laws, but in ourselves.

Cross posted at Purple Wisconsin.

Goo goos and their limits

I tend to be skeptical of structural changes that are designed to remove politics from fundamentally political undertakings. I doubt. for example, that nonpartisan redistricting will really be nonpartisan. I know that so called "merit based" selection schemes for judges simply drive the politics underground.

The reason is simple. When a decision has political implications, politics, like water, finds its own level. While the selection of lower court judges is not politically salient, the selection of justices for a state supreme court usually is. These courts are law developing tribunals of last resort. They decide issues that are unsettled.

Many of these issues do not have ideological or political implications, but some - very important - cases do. While it is wrong to think that the justices who decide these politically charged cases simply do whatever they want or vote as partisans, their world view will affect how they approach questions to which the legal answer is unclear. It is natural for liberals and conservatives to seek like-minded justices.

This turns merit selection into a political process. If you don't believe me, consider the case of North Carolina. Out going Democratic Governor Beverly Perdue -she who spoke of suspending elections so that things could get done - posed for holy pictures a while back when she signed and executive order setting up a Judicial Nominating Commission "to take the politics out of appointing judges in North Carolina." The Commission would recommend candidates for judicial vacancies. Governor Perdue would select from one of these recommended candidate.
There is now a vacancy on the state Supreme Court but there is also a problem. The Commission cannot get its work done before Governor Perdue leaves office next month and Republican Pat McCrory takes over. If she relies on the Commission, she will not get to appoint North Carolina's next justice.
So she is scrapping the Commission although she urges future Governors to use it.
Are the politics back in judicial selection of North Carolina? They never left. It's fine to have a panel of lawyers make recommendations to the Governor. We do that here. But that doesn't make the process of selecting judges - particularly for a state Supreme Court - nonpolitical.
Governor Perdue has just demonstrated the obvious.
At a certain level, I don't blame her. She wants to use what remaining power she has to appoint a justice whose judicial philosophy she supports. So would I. But I would prefer that she not pretend otherwise


Cross posted at Purple Wisconsin

Judicial elections and promises

Did Supreme Court candidate Vince Megna violate the Judicial Code of Ethics in saying that he is a Democrat, opposes voter ID and would, if elected to the Court, vote against vote suppression?

There are two issues.

The first is easy. The Code (to which all candidates for judicial office are subject) says that a judge may not be a member of a political party. But this prohibition was declared unconstitutional in a case called Siefert v. Alexander. Megna can say he is a Democrat. Whether he should call attention to his partisan affiliation is another question. Liberal and conservative matters on the state Supreme Court, but not in the same way it matters in the legislature or Governor's office.

The second issue is whether Megna's comments on voter ID were improper.The United States Supreme Court has made clear that a candidate for judicial office may express his or her opinion on disputed legal or political issues. But it has left open the possibility that a state may restrict a judicial candidate or judge from promising to rule in a particular way. Wisconsin does prohibit a candidate from making "pledges, promises, or commitments that are inconsistent with the
impartial performance of the adjudicative duties of the office."

So, while it may be acceptable for a candidate to express a view on, say, the existence or nonexistence of a constitutional right to bargain collectively, it is not acceptable for a candidate to commit to overrule - or uphold - Act 10.

The distinction may seem to be overly fine but it is rooted in reality. It is disingenuous for candidates to pretend they have no opinion about critical questions. If. for example,  I really have no  view on the great legal issues of the day, then I am probably unqualified to be a candidate for the state supreme court.

On the other hand, I ought to be willing to be consider arguments from the other side. I should be open to persuasion.

Megna stretched that distinction. Having all but called voter ID requirements a form of "voter suppression," he then promises to vote to overturn "voter suppression" laws. He may not have crossed the line but he came very close. However, he then backed away noting that "every case comes down to the facts of the case and the arguments and the law."

So, taking his comments in context, I would argue that the rules were not broken. On the other hand, most candidates would not comment so directly on an issue that is almost certain to come before the court in the near future.

 A related - but distinct - question is whether his comments would lead to an obligation to recuse himself in a voter ID case.

Cross posted at Purple Wisconsin.

The Fiscal Cliff: It's not a bug, it's a feature.

It might be too much to say that President Obama wants to go over the "fiscal cliff." It seems increasingly clear, however, that he wouldn't mind it much.

And the reason that he wouldn't mind is not so much that he sees it as a price to pay for some other desired policy. The "policy" that he seems to be insisting on - expiration of the Bush era tax cuts for those making over $250,000 and an equivalent amount of additional taxes on the same ground - yields modest deficit reduction and nothing for the additional spending that Obama wants. It is small ball.

When you appreciate that, the going over the fiscal cliff is not a cost of Obaman intransigency, it's a feature.

Here's why. It has been a long time since the Democrats - and many Republicans - had a vision of government restricted to the provision of a limited number of essential services and a social safety net. But the President has an aggressively ambitious view of what the state can do. It can reorder industries and engage in more substantial redistribution of income that it does today.
But you can't have that kind of state without substantial tax increases on the middle class. No European state does it. We can't either. As the President likes to say, "the math tends not to work."
The problem for the Democrats has been that they can't call for middle class tax increases. If they had, they would have lost the election. (This should be a sobering thought for those who believe there is a permanent Progressive majority.)

Thus comes the beauty part of the "fiscal cliff." The Democrats can help themselves to a substantial tax increase by doing nothing. To be sure, they'll have to live with sequestration for a while but it is heavily weighted toward defense and, if there is one thing that Congress has proven itself capable of doing, it is raising spending.


The "fiscal cliff" becomes a down payment on the Obama agenda.

Cross posted at Purple Wisconsin.

Politics and pizza at the UW

At least as far as the regional director of the National Labor Relations Board is concerned, the allegations of "union busting" at Palermo's fomented by Voces de La Frontera are unsupported by the evidence.
Voces says it will appeal and,  I suspect, it will lose again. That isn't surprising. Voces is a political, if not partisan, organization with a point of view. I suspect that it will try and push the law in the direction that it thinks it ought to go. I don't fault it for that even as I disagree with the direction in which they want to take it.
I do find offputting the efforts at both the Milwaukee and Madison campuses of the University of Wisconsin to use their allocation of tax dollars to support Voces' position.
I remember what it was like to think I had the world figured out but picking the pizza to be served at Camp Randall Stadium is not a political act. I would rather not have my tax dollars used as a weapon by ideologues. I don't think I'm alone.


Cross posted at Purple Wisconsin

Redistricting reform and its limits

The Journal Sentinel editorial board thinks it has found an  egregious example of bizarre gerrymandering in the recent redrawing of the 21st and 22nd Senate districts. I beg to differ.

First, let's go to the "eye test." The board thinks that the new 21st district is an imaginatively shaped "barrel" that could not be found in a "natural" world of redistricting. But as these things go, the shape of the 21st is not all that unusual. While it is far from the most compact and contiguous district you could draw, there are plenty that are worse. If you really want to see bizarrely shaped legislative districts, look at some of these, .

Beyond that, it is not hard to defend the new 21st and 22nd on  traditional redistricting principles which are are not limited to drawing a contiguous and compact set of districts or respecting existing political boundaries. For example, it is often argued that redistricting should respect "communities of interest," i.e., there should be an effort to draw boundaries in a way that includes citizens with common concerns.

The new 21st and 22d districts may well serve that principle. Voters in the cities of Racine and Kenosha may have more interests in common than they have with the suburban and rural residents of their respective counties.
This is not to say that there is no political consequence of respecting such communities. One man's respect for "community of interest" may be another's deployment of the time honored redistricting device of "packing"  voters.
But splitting up - or "cracking" -  like-minded voters is another way of gerrymandering.

This is why the United States Supreme Court has effectively made court challenges to partisan gerrymanders impossible. There is no such thing as an "ideal" map. There are six or seven common "nonpartisan" redistricting principles. Unfortunately, they often contradict each other. For example, keeping "communities of interest" within the same district may require ignoring municipal boundaries or drawing a map which departs from the state wide partisan balance of power or which maximizes competitive districts.

One solution might be to put the drawing of maps in "non-partisan" hands.
Good luck with that.
The editorial board offers two alternatives. One is to create a nonpartisan commission such as California's - a commission which is now under fire for acting in a partisan fashion (as the paper's op-ed concedes.) "Non-partisan" solutions rarely remain non-partisan and often succeed only in driving the politics underground. It is notoriously difficult to drive the politics out of something that is inherently political.
It is not at all clear that a nonpartisan approach will not have partisan implications. Many people believe that a map which draws districts in a way that maximizes things like the regularity of their shape and adherence to municipal boundaries will tend to benefit Republicans. This is because Democratic voters tend to be "packed" together in a way that Republican voters are not.

If that's true, then we can expect partisan wrangling to continue in a non-partisan context. Indeed, the battle over the redistricting criteria to be used may become partisan.

The other alternative suggested by the board  is to restrict the legislature to alternatives presented by a putatively independent state agency associated with the legislature, such as the Legislative Reference Bureau. But whether such an agency would be free of pro-incumbent bias - or would not be captured by one party -  seems unclear. Again, there is likely to be a partisan fight over which non-partisan interests to employ.
At best, this alternative would certainly moderate the potential for a gerrymandered where one party has both houses of the legislature and the state house. At worst, it would be a recipe for gridlock.
This is not to say that redistricting reform is necessarily a bad idea. It may well deserve consideration. My point is only that the matter is not as simple as it may seem to be.

Cross posted at Purple Wisconsin

Social conservatives should remain in the tent

So when I was last here, I suggested that conservatives should not believe that the sky is falling. Since then, I have completed Sean Trende's fascinating book, The Lost Majority. Trende argues that political coalitions are inherently unstable - they require bringing together incompatible groups - and that there are no permanent victories in politics. He does a nice job of illustrating how narrow the Democratic coalition is (you can say the same thing about the GOP) and the closeness of three of our last four elections along with the dramatic swings in the midterms (compare 2006 with 2010) bears that out.

But to say that things are not awful for conservatives is not to say that they are just fine. Reexamination is in order. The Democrats did not turn things around until they addressed their weaknesses. Bill Clinton was a New Democrat - one who learned to adopt his party's traditional commitment to larger government to reflect current political reality. This entailed some substantive changes - ending welfare as we knew it and pursuing a more assertive foreign policy - and some repackaging of what were essentially the same positions - abortion should be safe, legal and rare.

I can think of three things that conservatives need to think hard about. But we should begin with a caveat. The party who loses an election should be loathe to take advice from the partisans of the winners. They don't really wish you well.

So I am not quite ready to get on board with all those well meaning folks on the left who think that the Republicans should throw the social conservatives under the bus. While Republicans cannot abandon their commitment to traditional values, they must understand that many people have a more nuanced view of how those values are lived and that too much of GOP rhetoric seems to ignore that. I don't believe that the GOP should cease being a pro-life party but it cannot appear to be censorious or extreme. One of the most effective things that the pro-life movement ever did was run the ads of women explaining how they came to be opposed to abortion. The ads treated women as moral agents and not subjects to be controlled.

There is a sense in which the Republicans got a raw deal this election cycle. Rick Santorum, Richard Mourdock and Todd Akin were not nominees for national office. But the Democrats did a masterful - if nasty and misleading - job of using them to taint the GOP brand. This didn't move a lot of votes but it moved some. In close elections, every vote matters.
The Democrats strove mightily to create issues that did not exist. Republicans were not proposing to outlaw contraceptions and the notion that they would become "unaffordable" unless religious dissenters were forced to pay for them was a nifty bit of distortion.
Yet Republicans let them get away with it. They have, I think, spent so much time talking to social conservatives that many have forgotten how to talk about social issues in a way that doesn't assume the conclusion. Too many conservatives have forgotten how to address these issues with persuasion and not condemnation and condescension. They have forgotten the humility and kindness which is also a religious value.
There is a great irony here. Republicans are castigated by the left for insisting on tradiitonal values but, as Charles Murray demonstrated in his recent book, Coming Apart, the upper middle class members on the left recognize how important those values are to well being and live their lives accordingly.

Cross posted at Purple Wisconsin

Republicans should get a grip

After any Presidential election, there is a danger for both the winning and losing sides. The loser sorely disappointed, will be tempted to despair and overreaction. The winners may forget that there are no permanent victories and politics and gloss over their own weaknesses coming into the next war.

What should conservatives take from Tuesday's results?

First, they should not make into more than what it is. Incumbent Presidents are hard to dislodge. In two man races since 1900, the incumbent has won 15 of 17. Depending on the final total, Romney came the closest of any of the 15 unsuccessful challenges. Obama's re-election performance was historically weak.

It is hard, moreover, to see the election as a mandate for any particular set of polices. The President did not run that kind of campaign. He could have said that he supports a larger welfare state and is willing to advocate for the taxes necessary to pay for it. Had he done so, he would have almost certainly lost.

Instead, he ran on a fuzzy platform of incremental state "investments" that could be financed solely by asking the rich to pay a "bit more." This is, of course, fantastical. You can't even make much of a dent in the deficit by allowing the Bush tax cuts expire for those earning more than $ 250,000. The Buffett rule - as even Buffett admits - would raise very little money.

But it is, significantly, the most he would say. His major focus was to trash Romney as a Big Rich Meanie. He did it masterfully, driving down the GOP vote in swing states. There are three telling facts from this election. First, turn out was down. Second, Obama's drop off in voter percentage was markedly less in swing states than in the nation generally. Third, Romney garnered less votes than John McCain. If he could have found a way to counter Obama's negative ad blitz in the swing states over the summer and turned out the McCain voters who stayed home, the outcome might have been different.

Ironically, given the attack on him a plutocrat supported by other plutocrats, he didn't have the money - having spent it on a lengthy primary fight.

So Obama's victory is significant for what it was not. It was not a mandate for the welfare state that he did not call for and will not pay for. It is also significant for what it was. A very close win in which brilliant tactics and execution played a large role.

So conservatives can get a grip. Still there are some things that must be faced. More to come.

Cross posted at Purple Wisconsin

Prognostication whithers

I have a piece in Front Page Magazine reporting on the state of the race in Wisconsin. My sense is that the race is very close.

The conundrum, of course, is this. The national polls are dead even. The coin, as it were, is still spinning on its edge.

But the state polls seem to favor Obama. Let's look at RCP's analysis. It has 201 electoral votes for the Democrats and 191 for Romney. States with 146 electoral votes are called "toss-ups." But, RCP says, the poll averages in states with 102 of these 146 votes favor the President.
How likely is this to happen? Are almost all of the states on the knife's edge likely to fall off in the same direction?

One argument for that to happen is that the Obama campaign has played the swing states well - "poisoning" each of them with its early surge of negative ads.

Another would be to look for some campaign dynamic moving the vote in the same way. Sandy is the logical candidate, although a dismaying one. Anyone who decided to vote for President Obama because he did what any other President would "do" - really there is very little for a President to "do" - in such situations, i.e., turn on the money spigot and pose for holy pictures probably shouldn't vote.

But Sandy may have run its course, now that the relief efforts are - as they often will be - far from perfect.

We see predictions of electoral totals of over 300 for both Romney and Obama. Both are plausible. I think that Romney's edge in enthusiasm will carry the day. But no one knows.
But, now about this for an outcome, Romney's 191 electoral votes are augmented by Florida and North Carolina bringing him to 235. He takes Virginia to reach 248. He then wins Wisconsin, New Hampshire and Iowa (or loses these but wins Pennsylvania) and is at 268. He carries Maine's second district (not expected but we're playing here) and the election is ... an electoral tie and goes to the House.

Cross posted at Purple Wisconsin

Job report means little

What will today's job numbers mean for the election? I don't know but I suspect not too much.
What should they mean? Absolutely nothing.
The way in which we await these estimates during election cycles would be amusing were it not so wrongheaded. We act as if some oracle is about to give us the one missing bit of information that will permit the "independent-minded' to pass judgment on the performance of the incumbent.
We'll hear the normal spin today. There are new jobs but the unemployment rate is up. The unemployment rate is up but more people are in the work force. More people are in the work force but labor force participation rates remain down and the "real" rate of unemployment is still much higher than the official rate.
Here is what we know. We've known it for a long time. The recovery has been awful - historically awful. It is one of the worst in our history. There is no room to argue about that.
What we do differ on is why this is so. The President's supporters say it is because the recession was so deep. His critics point to evidence that this is a mistaken assumption - deep recessions tend to be followed by more robust recoveries. They argue that the President has spent mightily - turning the federal government into a fiscal basket case - with no discernible effect.
I believe that the critics have the far better case. You may differ. One month's job report is unlikely to - and really should not - cause either of us to change our minds.

Cross posted at Purple Wisconsin

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.