Pants on Fire for Politifact

Every once in a while there is a Politifact whose little emoticon (true, mostly true, pants on fire, etc.) is so gobsmackingly wrong that it leaves you speechless. Here’s the latest.

The statement to be checked is an observation by gubernatorial candidate Mary Burke that Wisconsin’s school choice program “has no research that shows its going to improve student learning.” Writing for Politifact, Tim Kertscher rates that the statement “mostly true.”

He’s got it completely wrong. In fact, the only evidence that exists on whether the voucher program improves student learning says that it does.

In other words, the cute little emoticon (an obfuscatory bit of "entertainment" fluff which I desperately wish the paper would get rid of) is pretty much backward.

Here’s half the mistake. Because the average of all MPS scores (as reported by the Department of Public Instruction and essentially republished by the Public Policy Forum) is higher than the average of all voucher students, Politifact concludes that this “gives a clear edge to public school students over voucher students.”
 

No it doesn’t. Not even close.
 

Any researcher will tell you that in assessing student achievement as a result of some program or instructional strategy, one must control for the socioeconomic status and other relevant characteristics of the students being compared. In other words, it is essential to compare like to like; apples to apples, if you will.
 

Researchers also will tell you that, in assessing whether student learning has“improved,” some type of longitudinal study is required, i.e., you must determine whether the achievement of particular students who have been exposed to the innovation under study approved over a period of time. A snapshot of test scores doesn’t do that. Even a series of annual snapshots of large groups of students doesn’t do that because we can’t be sure that the groups we are comparing consist of the same students from year to year.
 

As Paul Peterson, Henry Lee Shattuck Professor of Government at Harvard, explains, simply reporting the “average math and reading scores of all students” “often [says] less about the quality of instruction at the school than about the students’ family backgrounds.” He also calls for a “growth-based measuring stick.”
 

The DPI and PPF reports don’t do either of these things. They compare all (or almost all) MPS students to voucher students who, until quite recently, were all low income (some working class families are now eligible) and likely to be children whose parent were dissatisfied with their performance in public school.  Even if the percentage of disadvantaged and minority students are similar for both groups as a whole, one has to control for relevant factors and crunch the numbers to determine whether one group has "outperformed" the other.

Neither report attempts to measure whether the improvement of students who move to a choice school compared to comparable children who remain in a public school.  (In fact, at least for PPF, there would be no way to do so with the data available to them.)

We could go on.  It is nonsense, for example, to compare the test scores of public and voucher students in Racine in 2014 because the choice program had only just begun in Racine and the voucher students had been in their new schools for only a few weeks. Some folks argue, moreover, that DPI treats students who have opted out of tests in  a way that disfavors voucher schools. There are other issues as well.

I would add that it is meaningless to treat voucher schools as a group since they are not subject to common control and differ dramatically from one another. If, in fact, well-run choice schools improve student performance then it would also be wrong to say that there is “no evidence” the program works. In fact, a quick look at the 2013 PPF report reveals that a majority of choice schools appear to have matched or exceeded the MPS average for at least one subject during the years in question and that a substantial majority of Lutheran or Catholic schools did so. The 2014 results, while not quite as clear, are comparable. Perhaps certain types of choice schools do improve student learning.

So the numbers that Politifact says give public school students a “clear edge” do no such thing.

There are, as far as I know, four studies that attempt to do what DPI and PPF do not. One very small study in the early years of the voucher program – when there was a lottery to participate in Milwaukee – showed that students who got into choice schools did better than those who lost the lottery. Two more recent studies, which Politifact cites but then ignores, shows that the presence of school choice is associated with improvement of test scores in MPS. That was an early rationale for school choice; it was hoped that competitive pressure would cause public schools to improve.

And then there’s the University of Arkansas School Choice Demonstration Project study – the only real study of whether the choice program“improved student learning.” The SCDP study found that Choice students were significantly more likely to graduate and go on to college. The study found that voucher students showed a greater increase in reading scores than MPS students. (That this happened in the last year of the study and the first year in which voucher schools had to, like MPS, publicize their scores doesn’t change that.) There were some other advantages for voucher students but there were not statistically significant, i.e., the researchers could not say that they were not a product of chance.

You can dismiss the statistically significant improvements as “too small” although they are at least as robust as the evidence for a variety of educational nostrums that are commonly touted. And these gains are accomplished at a bit over half the cost of a public school education. You can quibble over what caused the measured improvements. But the fact remains that they are “evidence”of improvement that Mary Burke falsely said does not exist.

How Burke’s statement can possibly be called “mostly true”is beyond me. The Politifact author regards the evidence for improvement as "thin." I'm not sure that statistically significant findings of improvement in the only properly designed study that exists can be so readily dismissed. But let's grant him this . Concerns about the extent of improvements or what really caused it are worth discussing.

But she said there was no evidence. That is false. It cannot be mostly true. This Politifact was not fact checking. It was an imposition of opinion.

Cross posted at Purple Wisconsin

All Doe all the time, part II

 

My take on the various legal problems presented by reported negotiations to "settle" charges that might be brought as a result of the latest (and apparently late) John Doe investigation can be found here. Shorter version: It's not clear that the prosecutors and GAB can do anything but give up.
One of my colleagues raises an interesting question. Can the prosecutors even seek to overturn Judge Peterson's decision quashing the search warrants and subpoenas that were served in the course of the now-halted probe?The lead prosecutor asked for clarification on that. Here is what Judge Randa said in an order issued Friday afternoon:

The injunction bars any attempt by Schmitz (or any other defendant) to obtain compliance with any order, subpoena, or other process issued in furtherance of the investigation, but it does not extend to legal proceedings, including these federal court proceedings, that do not seek to enforce such compliance. (Emphasis added.)

 

Doesn't this suggest that it does apply to legal proceedings that do seek to enforce compliance? Wouldn't seeking to overturn Judge Peterson's order quashing subpoenas and "other process" be exactly that? Ordinarily I'd be reluctant to read it that way, except that's the way it reads. The reasonng, I suppose, is that forcing someone to litigate state law issues presented by an unconstitutional litigation itself comprises constitutional harm.

 

Cross posted at Purple Wisconsin.

 

 

 

 

 

 

 

 

Public housing by any other name

We all know how affirmative action became diversity and global warming morphed into climate change. Environmental restrictions became sustainability and the gatekeepers of racial and sexual propriety have decreed, cancelled and reformulated a vast etiquette of how to refer to a racial and other minorities.

Here's the latest. Last week's Journal Sentinel featured the following headline:

$ 10 million complex bolsters Milwaukee's supportive housing

What is "supportive housing?"

According to the article, it turns out to be mean that the building's "units will be subsidized and that no resident will be paying more than 30% of his or her income for rent."

We used to call that public housing. Why the change in terminology?

I suspect it is because the old term has come to have negative connotations. Public housing concentrates very low income people who, for a variety of reasons, neighbors will fear aremore likely to engage in anti-social behavior or who, in fact, may actually engage in such behavior having an adverse impact on the surrounding area.

We can argue about whether this really happens or whether the fears are reasonable. We can think of ways to respond to this real or exaggerated problem. But changing the name won't accomplish anything.

Cross posted at Purple Wisconsin.

Where do zombies come from?

So here's a new one - the problem of "zombie properties" - a name that seems to designed to obscure rather than illuminate. An entire front page article in this week in the  Journal Sentinel yielded almost no information. Why are there 400 houses in foreclosure that no one wants? The article treats this as a mystery. But that can't be.

Here's the problem. Banks lend money to people to buy houses and they do not repay the loan. The houses go into foreclosure but the process takes forever and in the meantime the properties are left to deteriorate and this causes problems in the neighborhood.

One can imagine two contending explanations. The first is that the whole lending process became too complicated. A bunch of hubristic whiz kids thought they could eliminate risk through algorithms rather than traditional tools like underwriting and requiring down payments. This involved creating a complicated ownership structure for packaged loans - so no one would be exposed to excessive risk - that is hard to unravel. For these inner city properties, where the homeowners have the least to lose by walking away and the economics of rehabilitation and resale are the toughest, this leads to homes where not only the owner but the very project of foreclosure, rehabilitation and resale is underwater. At some point, it is literally in no one's interest to reclaim the house and it is razed.

My guess is that there is some truth in this, but it is a second order explanation. How did it happen in the first place?

Here's a possible answer. We don't need concepts like the living dead to explain this. Indeed, there is a sense in which the  metaphor is exactly wrong. The problem is not that these properties refuse to die but that there are truly and completely dead, yet maintained on life support. They are victims of the fiction that they still belong to the people that bought them. Legally, they do. Economically, they don't and may never have.

On this view, the problem is that there are no real property interests in these homes. The owners don't have one because they probably paid little down and, in any event, have no equity interests in the property. In a misguided attempt to promote home ownership, people were encouraged to buy properties that they not only couldn't afford but in which they had nothing to lose. This was not home ownership in the real sense; it was speculation for those who could least afford it.

The lenders don't have a property interest because they required almost nothing down and lent to people who couldn't really afford the home.  As a result, they can't hope to get their money back through foreclosure and resale. Although you might expect the bank to move to cut its losses, the cumbersome nature of the foreclosure process - full of procedural requirements to protect the consumer - raise the transactional costs of recovering the property. It doesn't take long - foreclosed properties are notoriously abused by "owners" with no real interest to them - before many of these properties may not be worth reclaiming. While the city's Department of Neighborhood Services may not understand why the lenders don't figure out how to move faster to recover the properties, it's really not that hard to figure out.

I understand that we are supposed to chalk this all up to greed, but there are problems with that. It is not a good strategy - if you want to accumulate wealth beyond the dreams of avarice - to lend money to people who can't pay it back. While the desire to make money in a booming market can cloud one's judgment about the creditworthiness of a debtor, that's not all that was going on here.

Part of the problem is the government encouraged this type of lending. It threatened lenders with enforcement actions if they were "too strict" and imposed obligations to affirmatively further affordable housing. (Remember Barney Frank's infamous inclination to "roll the dice" on affordable housing?) Even when there was no legal requirement to provide affordable housing a lot of lenders found it expedient to accommodate organized pressure to make such loans - just as it is ofter easier today to pay tribute to activists for "sustainability" and "diversity."

To be sure, unscrupulous originators took advantage but there had to be something - a willingness to make subprime loans with insufficient collateral -  for them to take advantage of in the first place. And, while the housing collapse was limited to this segment of the market, it is in this segment of the market that a collapse in values is most likely to lead to houses that not literally no one wants. Perhaps there are zombie homes being razed in Mequon and Brookfield, but I haven't yet heard of them.

If this second hypothesis is true, we have quite the irony.

These were policies that left-wing community organizers organizations and liberal politicians supported. Like Mary Shelley's Frankenstein was a product of scientific hubris gone wrong, the zombie properties are of their own making. "Organizing" does not make what won't work viable.

My guess is that the preferred solution of the left wing organizations like Common Ground would be to try to somehow - through litigation or legislation or negotiation - get the banks to throw good money after bad. Some form of reinvestment in these properties - perhaps subsidized - may be warranted but you have to understand the cost of doing so. Making the banks responsible for neighborhood decline is likely to keep the banks out of the neighborhood from now on. Once bitten, twice shy. Selling homes to people who still can't afford them and who will still be required to put little or no money down will work no better this time than it did before. There needs to be another model - one that requires homeowners to have more of a stake in a neighborhood. That will require demanding more.

But before you get there, someone has to reacquire the properties. It seems like the city and banks are playing a game of chicken. I think I know who'll win that.

Cross posted at Purple Wisconsin.

All Doe all the time, part one

My op-ed in Sunday's Crossroads on the current sorry state of the permanent John Doe investigation into one side of our political divide can be found here. I elaborated on the rumors of settlement negotiations here. More on that later.

A few responses to points made in the comments to the op-ed.

First, I am taking no position on whether anyone has or has not acted unethically. Not everything can be reduced to a morality play. I am saying that the decision to pursue this reflected an insufficient regard for First Amendment values and poor judgment about what can and cannot be accomplished in this way. Whether it was accompanied by unethical behavior or was partisan is something I'll leave to others.

Second, I am not overly impressed that the investigation was purportedly blessed by the GAB. To get approval of a superintending agency of retired and (very) part time judges does not overcome the glaring problems with the investigation. An appeal to authority can't trump what is right before our eyes. (The same thing applies to the formal cooperation of other DAs.)

In any event, it may be that the Doe was not initiated but joined by the GAB and at least in a departure from - if not in violation of - its statutorily mandated procedures.

By way of counterpoint (an appropriate thing to do), the Journal Sentinel ran a column by Bill Lueders which had originally appeared online. He begins by referring to Sen. Mike Ellis' recent lubricated soliloquy - caught on tape by an investigative journalist - to create an outside group to attack his opponent.

Lueders suggests that everyone assumed that Ellis' plan - which he never carried out - would be illegal. He argues that Judge Randa's decision shutting down the John Doe because the state cannot constitutionally restrict issue advocacy changes that - that it "alters the campaign landscape" in some fundamental way.

I do think the decision is an important doctrinal clarification, but it may not mean that what Ellis talked about would be legal.

What Randa said is that the state may only restrict express advocacy. As defined by the United States Supreme Court, this is speech that is susceptible of no interpretation other than as a call to elect or defeat a candidate.

It is unclear whether Ellis' cocktail hour disquisition referred to express advocacy. Issue advocacy can be - and usually is - critical of a candidate but does so only in the context of taking a position on some issue. While some people think of this as a distinction without a difference, robust protection of freedom of speech requires that people - and organizations of people - have the right to speak freely about issues at election time - even if that means highlighting the position of elected officials and candidates.

The rest of the horribles paraded by Lueders are just wrong. For example, the claim of Paul S. Ryan of the Campaign Legal Center that outside groups could pay for a candidate's campaign staff, rent and food bills is ridiculous. Randa's decision does not say that express advocacy is the only form of in-kind campaign contribution that can be made by an outside group. It says that issue advocacy is - unlike paying rent or salaries - constitutionally protected and cannot become less protected because of some degree of coordination with a candidate.

Cross posted at Purple Wisconsin.

More reflections on Brown and the "Iron Ring"

As I noticed in my last post here, back to the future seems to be a norm in politics.

Last weekend, the local left pretended it was 1954 on questions of racial balance in school. My Purple Wisconsin colleague Jim Rowen chose to genuflect before a time honored relic of the American left - the so called "iron ring" thrown around Milwaukee in the 1950s.

The "iron ring" amounted to this. The state prevented the city from forcing proximate local communities from joining the city against their will. In this, it did anticipate much of our current controversy over regionalism. Advocates of the city seem to believe that support for the city means forcing others to pay for whatever stupidity city politicians want to promote. It's never going to happen.

But the larger point is that the "iron ring" was drawn too late. As Russell Knetzger pointed out in last Sunday's Crossroads, Milwaukee nevertheless managed to annex huge amounts of real estate. For its population and age, the city has a huge geographic footprint. I'm not sure if there are still farms within the city limits, but - as recently as thirty years ago (over a period in which city population has been more or less stable) - there were.

In my last point, I wrote about the second generation school desegregation litigation in the 80s. One of the points that the defense made in that case was Knetzger's. The city managed to annex huge swaths of real estate to the north and west of the city center. Indeed, we introduced piles of materials from the 50s and 60s that Milwaukee promoted this area as "the suburb in the city." Indeed, an earlier use of the term "iron ring" was to say the the city would not provide services such as water (as if Milwaukee owns the lake; an odd position for public trust zealots) to suburban communities.

The African American population moved into this area - in a pie shaped pattern emanating from the city center. This is not unique to Milwaukee. We introduced evidence that showed the exact same pattern of black outmigration patterns in every other midwest industrial city. People who live an area of initial settlement do not disperse randomly. They tend to remain in proximity to friends and families. Indeed, that type of outmigration is not limited to African Americans. Other ethnic groups have followed a similar -albeit less pronounced - pattern and there is evidence of Hispanic migration to the southwest.

That this population remained in the city is evidence of how much the city was permitted to expand - generally over the opposition of those brought within its borders.

I understand that it is doctrine among the local left that this opposition can be dismissed as racist, This is reductive and lazy. People moved to the suburbs because they wanted a new house and a yard. They did not wish to remain in the city because they wanted self-determination for their new communities.

I understand that, for folks like Jim, self-determination that allows people to avoid paying for his policy preferences is anathema. Maybe he's right. But folks who take exception are not racist for them.

Cross posted at Purple Wisconsin.

Here are some more reflections on Brown

If you wait long enough, just about every debate will be repeated.

Sunday's Journal Sentinel was themed around "resegregation" on the 60th anniversary of Brown v. Board of Education a story. The most interesting of several articles on the subject was a treatment of the increased lack of racial balance in MPS and the idea that this is sometime of "boomerang" effect of recent or sinister provenance.

In fact, the recognition that MPS would be unable to keep counting noses by their color was raised thirty years ago. As a rookie lawyer. I became involved in the "second generation" school desegregation litigation. It followed a rather contrived and result oriended decision by Judge John Reynolds holding that there had been intentional racial segregation by MPS that justified racial balancing in the city's schools.

Reynolds meant well - he was a creature of his age - but that decision destroyed, at least for awhile, the neighborhood school in Milwaukee and almost certainly hastened the exodus of the middle class from Milwaukee.  You might condemn what followed as "racist" white flight but the eventual rejection of busing for racial balance by minority parents should call such a simplistic view into question. Because. among other things, the burden of busing fell more heavily on African Americans (at least, in part, to prevent white families from leaving the system), support dwindled among blacks as well.

In any event, the effort to racially balance Milwaukee schools quickly ran into a dearth of white students. In 1984, MPS realized that it would be unable to avoid predominantly minority schools unless it could move students across city lines. Thus it initiated litigation to create a metropolitan-wide busing plan. I was a member of the team defending 24 suburban school districts who were named as defendants.

The case was weak and, if you want to believe me, we beat the pants off of the district in court. (One of my earliest victories as a trial lawyer was getting MPS' expert to admit, under oath, that he had told his research assistants not to collect data that "went the wrong way." While this may have been the product of luck more than skill, it has rarely gotten better than that.) In any event, MPS caved, settling for an agreement by the suburban districts to expand their participation in the existing chapter 220 voluntary transfer program as long as they had space and as long as the state would pay them for doing so. (The unacknowledged fact was that many of these suburban districts saw transfers from the city as a source of revenue.)

In the end, the 220 program did not materially change the composition of city or suburban schools because there wasn't much demand for it. (Although, ironically, my son spent a semester as a 220 student at the Milwaukee High School for the Arts.) The idea that racial balance was an important element of improving educational outcomes had lost favor. In the meantime, MPS lost white students to the point that it has become almost impossible not to have what the article calls "intensely segregated" schools. This is not a new development. It was predicted as long as 30 years ago.

The thing that did not bring this about is school choice. It didn't exist in 1984 and is not a vehicle for white "flight." Choice students are overwhelmingly minority. The movement of white students out of MPS is largely due to the failure of the city to remain attractive to middle class parents or of MPS to remain a viable alternative for middle class families who remain in the city. There are many wonderful neighborhoods in Milwaukee in which relatively few of the kids go to public school.

This reflects a theme in Milwaukee politics. Urban "champions" in this city have too often thought that the answer to the city's problems is to get someone else to foot the bill or to coerce others to participate in their preferred solutions. It is to fight expressways that allow people to move freely between the city and the suburbs. It is to trap municipal workers within the city through residency requirements. It was once the desire to impose metropolitan busing on students and is now hostility to the ability of low income families to choose their children's schools. It is to "expand" the state base so that the city retains local control but avoids local responsibility.

While I agree that a fair amount of the angst about crime in Milwaukee is overblown, the fact remains that there are parts of the city - including some very attractive neighborhoods - in which the crime rate is just too high to attract middle class families and create communities that are as strong as they might otherwise be. Milwaukee will never attract and maintain families as long as MPS is viewed as a wasteland. Telling people that they are "wrong" or "racist" to be concerned about crime or poor schools is a fool's errand.

Making people offers they "can't refuse" or dressing up coercion as "regionalism" hasn't worked and never will. Milwaukee will not be a successful city unless people choose to work and attend school in the city. There may be an example of a city that accomplished that through high taxes,  the politics of racial spoils and hostility toward business, but I am not aware of it.

Cross posted at Purple Wisconsin.

Sterling and affirmative action

James Causey writes that Donald Sterling's comments "prove" the need for affirmative action. In fact, if the Sterling episode proves anything about affirmative action, it is precisely the opposite.

One rationale for affirmative action is that it is supposed to compensate for difficult to detect discrimination. The idea is that racial discrimination is so pervasive yet so subtle that one needs not only to ban it legally, but engage in compensatory "counter-balancing discrimination.

Let's put aside the tension between simultaneously believing that something is so reviled as to have become hidden away so completely that it rarely be directly observed, yet so widespread and pervasive that we can safely assume it is always at work

Let's forget, for a moment, the old adage that two wrongs do not make a right. Let's put aside the possibility that excusing "benign" discrimination invariably leads to resentment and, in fact, encourages "hostile" discrimination by leveling the moral high ground that was once held by proponents of civil rights.

Let's ignore the increasingly persuasive evidence that affirmative action does not help its beneficiaries.

Let's just focus on what the Sterling story tells us. Sterling appears to be a straight-up racist. How did he run the Clippers?

Here's how. He hires black players. He hired a black general manager. He employs a black coach.

Does this mean he's not really racist? Not at all. It does mean he's a capitalist. Let me explain.

At the beginning of this month, Nobel Laureate Gary Becker, an economist at the University of Chicago, died. One of Becker's great accomplishments was to demonstrate how competitive markets may be the most effective anti-discrimination tool available. If participants in the market - say a basketball team - indulge a taste for discrimination and refuse to hire the most talented employees or to sell to willing customers on the basis of race, the market will make them pay. That is because there will be someone - think Branch Rickey - who does not share their bias (or chooses not to indulge it) and will be able to hire better talent and tap into profitable markets that the racist firm will abjure. Ultimately, racist firms must choose between their taste for prejudice and survival.

So Sterling came to understand that, if he wanted to win, he needed African American players. He needed the best coach he could get, so he hired former Marquette great Doc Rivers. He didn't have to become a better person to understand that he could not indulge his prejudices. He only needed to value his survival.

Now, of course, this won't always work. One can imagine circumstances in which the absence of prejudice will carry its own cost. For example, when racial hostility really is pervasive (think of Alabama in 1960), then hiring the best, say, plumbers won't help when a large of customers don't want African Americans in their homes. But the irony is that, in such situations, anti-discrimination laws (much less affirmative action) are unlikely to be passed or enforced.

The other argument for affirmative action is that it promotes understanding. Maybe if Donald Sterling had to go to school with African Americans, he wouldn't feel this way today. Perhaps.

But Sterling's problem is not that he has not been exposed to African Americans. He's owned an NBA team for over 30 years. He had a black mistress. He just seems to be inextricably bound to his own attitudes.

In any event, if the increasingly strong evidence for "mismatch" effects of affirmative action is correct, then it is just as likely that affirmative action will reinforce stereotypes. It is tempting to think that a committee of elites can fine tune the world. It is almost always wrong.

Cross posted at Purple Wisconsin.

Judicial recusal again

So we are now supposed to be interested in judicial recusal again. The idea is that, if interested parties - even independent organizations - spend a lot of money in a judicial election, then a justice who benefited from that spending ought to step aside.

Back when I worked as a full time legal academic and did such things, I wrote about judicial recusal. While the Journal Sentinel has turned to academic experts on the subject (generally representing a spectrum of opinion from A to A flat), the analysis that they offer is, in this context, insufficiently developed.

I wrote on the subject recently here. Let me revise and extend my remarks.

The idea between recusal based on campaign support is that it might cause a judge to improperly prefer the interests of a party. A judge in that sense might depart from the need to be impartial toward all parties; to apply the law - as she sees it - to all parties equally.

This was the reasoning behind the United States Supreme court's decision in Caperton v. A.T. Massey Coal Co. In that case, the CEO of Massey spent millions of dollars in support of a candidate for the West Virginia Supreme Court. At the time, Massey was in the process of appealing a $ 50 million verdict against it. When the beneficiary of this campaign support was elected and refused to recuse himself in the appeal, the U.S. Supreme Court found that the Caperton plaintiffs (who had won the large verdict) were denied their due process rights.

Now, there are problems with Caperton, but, even if we accept its reasoning, there are serious difficulties when one attempts to apply it to instances when campaign support has come from an ideological advocacy group such as Wisconsin Club for Growth or the Greater Wisconsin Committee. (In Caperton, an organization was used to spend most of the campaign money, but it was largely funded by Massey's CEO.)

These organizations really have no independent existence other than as an association of like-minded persons who want to speak in an election. Their are driven by ideological and policy preferences and their identity shifts from election to election. The organization is a vehicle for their association, but, as an institution, adds little to it. They might unite under the banner of the Club for Growth today and form a new organization tomorrow.

Significantly, these groups tend to support candidates who already share the perspective that their donors support. The Greater Wisconsin Committee looks for liberal candidates. It does not support candidates who do not share their outlook in the hope that he or she will "come around" after the election. Advocacy groups don't seek to influence candidates, as much as they seek to influence the electorate to support candidates who already have the views that the group seeks to advance.

So to be "biased" in favor of Club for Growth or the Greater Wisconsin Committee is to be biased in favor of the ideology they promote. It is, moreover, likely a "bias" that the candidate already has. It constitutes his or her deeply held convictions about the way in which the world works.

That's not impermissible bias. It does not raise due process concerns. In a case called White v. Republican Party, a majority of the United States Supreme Court held that bias in favor of a philosophical perspective - to have a position on disputed legal and political issues - is not bias at all.

Now, to be sure, there are times when a judge needs to put aside those preferences because the law requires that they be ignored. For example, I oppose the death penalty, but, by the traditional tools of legal analysis, I can't say it is unconstitutional. I might think that a state income tax is poor public policy, but, were I a judge, I'd certainly have to enforce it. (It is not, however, always the case that a judge's political or philosophical perspective will have no role in deciding a case; judges routinely rely on their philosophical and political beliefs to resolve uncertain questions of law. That's why we care so much about who is on the Supreme Court.)

But the fact that one has been supported by like-minded individuals does not make it appreciably less likely that a judge will be able to set aside biases that do not arise from that support, but from his or her own ideology.

Now, to be sure, a few caveats in order. Advocacy groups may be more ideological than candidates and drive them to more extreme positions than they otherwise would take. They may dissuade a judge from expressing a sincerely felt position that is more "nuanced" or idiosyncratic than his or her ideological cohorts would prefer. But it's not clear to me that monetary support makes this significantly more problematic than does the bare fact of judicial elections.

Of course, some donors support ideological groups for private purposes and, while their donors may not be disclosed, a judicial candidate will come to know who they are. But sorting that out - should a judge who accepts support from the plaintiffs' bar recuse herself in cases raising important questions of tort law - would seem to rest uneasily with the notion that we want the public, with all its conflicting interests, to elect judges.

Some people reject the premise of White v. Republican Party. They want judges to be selected without ideology. This is so, even though I am aware of no serious student of the law who does not believe that ideology matters in deciding certain cases in which the law is unclear. But this is really an argument against judicial elections more than it is an argument against recusal.

Here's why. Judicial elections - particularly for law developing courts like our state supreme court - will almost always involve contests of competing ideologies. If the support of one "side" or the other is a basis for recusal, there is always be  basis for recusal in cases with political or ideological import.

In fact, the problem runs even deeper than is commonly supposed. The most recent Journal Sentinel article draws a distinction between campaigns in which a great deal of money has been spent and those in which it has not - generally because the latter races were not competitive.

On one level, that makes sense. But, if we are really worried about the impact of ideology and the groups that advance ideologies in judicial elections, it stops short of efficacy - at least in the context of a multi-member court. Even if a justice is not running, he or she may care deeply about the campaigns involving other members of the Court. Those races can affect whether a justice will have a like-minded majority in the ideologically driven cases about which the justices may care the most.

It is well known within the legal community that members of the state supreme court recruit or support (generally silently) candidates to oppose their colleagues. (In fact, a recent proposal by the state bar association to limit justices to one sixteen year term is, in part, driven by the potentially corrosive impact of justices being involved in their colleagues' re-election campaigns.) It is also the case that a justice who is contemplating re-election will be aware that certain groups will spend for or against them when the time comes. Thus, if we think ideological support is a problem, combating it will require more than simply seeking the recusal of justices who have had contested races in which these advocacy groups have been players.

It is no answer to this problem to say that limiting recusal to candidates who have enjoyed the support or weathered the opposition of these groups is better than nothing. Stopping halfway can affect the ideological composition of the court and frustrate the political choices that the public, in electing these judges, has made.

So my view has been that an aggressive view of recusal - requiring it in the wake of lawful campaign support particularly from advocacy groups - is at odds with our decision to elect judges and, quite frankly, is a vehicle for mischief - of attempts to change the composition of a court that the public has elected - than it is a way to ensure impartiality.

Cross posted at Purple Wisconsin.

Of city and suburbs

Milwaukee's city-suburban wars have been going on for longer than I can remember. The one constant has been a failure of each side to understand the legitimate concerns of the other and to dismiss either the "'burbs" or the "city" with unwarranted caricatures.

A case in point: the recent contretemps between my Purple Wisconsin colleague Alex Runner and Waukesha blogger Nate Sass. Both seem to be decent enough blokes but something about this particular fault line seems to generate more heat than light.

Sass goes first, suggesting that a new arena ought to be built in Waukesha or at least not downtown. These, it seems to me, are at least tenable suggestions; certainly nothing that should earn the author contempt.  If you want regional funding for a new building, you need to take into account regional perspectives. Putting aside whether there ought to be public funding, I tend to think that downtown or Menomonee Valley are the best locations. But if you want to ask the suburbs for money, you ought not dismiss the suggestion that the playground be built in the suburbs as beyond the pale.

Sass points out that the BMO Harris Center did not lead to the economic development that was once hoped for. This too strikes me as a legitimate point. The sluggish performance of the Bradley Center neighborhood does not mean that a new arena in that area can't do better, but it would be foolish not to ask why things didn't turn out better.

In my mind, Sass goes off the rails in suggesting that downtown Milwaukee is a wasteland that no one wants to visit. That is demonstrably false. Crime is not a problem in downtown Milwaukee and parking is quite manageable. If he doesn't think so, he should leave Waukesha and head down there this summer.

I agree that Milwaukee is not Manhattan or Chicago. Only a handful of cities in the world are. I also agree that it is not Madison. It makes Madison look like Fargo.

In response to this, Alex loses his last nerve, calling Sass' piece a "hack job." But Sass makes a couple of points that urban advocates should not lose sight of.

The first is that the suburbs are no longer dependent on - and do not live off - the city. To be sure, Brookfield and Mequon came to be because Milwaukee was there first. But so were Grosse Pointe and Southfield a product of Detroit. That they don't need Detroit anymore is evident from a drive the length of Woodward Avenue.

This is more true today than ever. Three years ago, when I founded the Wisconsin Institute for Law & Liberty, I put it in downtown Milwaukee for no reason other than my subjective preference to be there. There was absolutely no business reason to do so.

The implication of that point is that the city is not in a position to demand that the suburbs pay for whatever it wants however it wants it. One cannot build a great city by expecting outsiders to fund things that John Lindsay thought were good ideas in 1966. Milwaukee will not rise on the power of government. If you want prosperity, you need to earn it. It won't come by politics.

I appreciate that many people believe this is unfair. It is no less true for that.

The second is that, when public money from the outside is properly spent, it must come with political participation. Sass is correct to point out that the MMSD is a prime example of a "regional" approach that one side has attempted to dominate at the expense of the other. That's one reason it hasn't worked very well.

It is risible for Milwaukee to say that is just wants to be "left alone." That's the last thing it wants. Being left alone - to truly exercise "local control" - would mean ceasing to be a supplicant. The city would have to announce that it no longer wants to receive tax dollars generated outside its borders.

Indeed, conservative that I am, I don't believe that Milwaukee should be "left alone" in this way, although I believe that many of the preferred nostrums of Milwaukee politicians are ill conceived and counterproductive. I am not anti-urban. I am anti-urban "progressivism."

But Milwaukee can't expect to be inveterately hostile to the interests of the larger region - yes, I'm talking freeways, streetcars and taxes - and not expect to reap hostility in turn.

Cross posted at Purple Wisconsin.

Nullification on the left and right

I wrote an earlier post about secession. Now I should address nullification.

It's not constitutional. The United States Constitution makes clear that federal law has supremacy over conflicting state law. Resolutions calling for acts of nullification are, at best, wastes of time and, at worst, bad politics. They give fodder to your enemies.

But I do think that three observations are in order.

First, I don't mind that Dan Bice keeps writing about this, but I would think - if he is looking for crackpots to box around - that he might point out to his readers that Shorewood and a number of other communities around the state recently voted to repeal the First Amendment rights of the newspaper works for - as well as every other newspaper and broadcast station in the country.

Second, while we ought to respect the Supremacy Clause in our constitution, we should also respect constitutional limitations on the power of the federal government. Over the past eighty years, those limitation, with the acquiescence of the Supreme Court, have been largely ignored through a combination of lawyerly sophistry and indifference. Legal sophisticates try to avoid a debate about this by presenting this a a fait accompli - something that it makes no sense to question and is, in any event, an inevitable outcome of the centralizing tendencies of the twentieth century. That's not so and a resolution addressing that would be appropriate.

Third, I sure hope that we are going to see as much emphasis on the crackpottery of the Democratic Party resolutions committee. It is not clear to me, for example, that support for nullification or secession in "extreme" circumstances is any worse than support for abortion until, literally, the moment of delivery or, as noted above, repealing the First Amendment rights of newspapers and other legal associations of persons.

A few thoughts on the cranky old racist

Donald Sterling has long been, for good  reason, a pariah among owners of professional sports teams. Not only were his Clippers among the worst run franchises in sports, he seemed to mix his incompetence with multiple layers of distastefulness such as that recently on display.

So there's really no point in commenting on his philosophy of race and the single girl. It's too weird. Here's a guy carrying on with a woman who is young enough to be his granddaughter. (He has obviously forgotten the controversial - but time honored and scientifically validated - rule for these things.)

Although she is apparently of black parentage, he doesn't want her to be seen with black people (who he, nevertheless, says are "wonderful") because ... well, I don't know. Apparently because he "has to live in" some kind of "culture" that doesn't  .... what ... want black people at NBA games? Or maybe "the culture"  just doesn't want black people at NBA games with a woman that Donald Sterling is trying to pretend isn't black - one who, he says,  is supposed to be a "delicate white or Latina"?

You figure it out. I can't. This is serious psycho-scrapple. But panic over African American men being around white women is an historic and ugly manifestation of racism. I suspect that had somehing to do with it.

But it's also a no-brainer to condemn, so let's consider four additional points.

First, Christian Schneider thinks we should quit excusing old people from being racists. I hadn't noticed that we did. But let me endorse the sentiment and add an observation or two.

The March on Washington took place over 50 years ago. Donald Sterling, according to the authorities at Wikipedia, was 30 years old then. The civil rights movement was not something that happened after he was a crusty old fart set in his ways. Maybe we could excuse those people - say Strom Thurmond or George Wallace - who were "too old" to adjust (and, actually, Thurmond and Wallace did change; at least a little), but those old people are mostly dead now.

More fundamentally, you don't get to be a crusty old fart set in your ways. You can think that older ways of thinking were better - often they were (albeit not on this issue) - but you have to keep making the case for the good old days.  Getting older doesn't mean you get to stop thinking. In fact, doing that will make it harder for you to keep getting older.

So, just as I wouldn't excuse Henry Aaron for not understanding the modern world, Sterling gets no pass. (And, no, the fact that I won't allow either to use the "stuck in the past" excuse does not "equate" their remarks.)

Besides, if he wants to run with a 21st century hottie, he needs to act his pretend age. Suck in your gut and let Lolita bring Magic Johnson into the luxury box.

Second, what should the NBA do? As I write this, he has been fined and banned for life. Adam Silver, Commissioner of the NBA, intends to try to force him to sell the team. This seems about right to me -although I'm a little unclear as to how you ban him from the league and still collect the fine.

I am not suggesting that everyone with views we disapprove of or that are unpopular should be driven from public life. I am very critical of Mozilla for firing its CEO because he differs with Silicon Valley's regnant view on the purpose and meaning of marriage. Civility requires that we learn to live, do business and sometimes even play with people we disagree with.

But all disagreements aren't the same. Saying that you don't want black people at your games - or don't want them there with certain kinds of people - is a delusion too far.

I detest our contemporary habit of condemning people based on an isolated remark. But this was an entire and rather belabored conversation. More fundamentally, it is consistent with some of Sterling's behavior in the past.

It is certainly true that publicizing private conversations is icky. In some states and under some circumstances, it is even illegal. But that's a different issue for another day.

Third, we shouldn't try to make this into a proxy for something that it isn't. In the wake of Sterling's comments, some conservatives inappropriately tried to make hay of his donations to Democratic candidates. Liberals tried to spike the football over the fact that he is a registered Republicans. In a truly silly column, Jeffrey Toobin seems to think that the remarks of this addle-brained and long standing creep (along with those of the crank Cliven Bundy) mean that we can't really ban discrimination on the basis of race. (More on that later.)

Donald Sterling's racism and his odd panic over his black and Hispanic girlfriend are about Donald Sterling.

Finally, what does this mean for us? Before a whole slew of new baseball palaces were built in the late nineties and oughts, MLB used Florida as a threat to get cities with existing franchises to come over with public money. Don't want to build a stadium? Tampa would love to have your team. (Ironically, when Florida did get baseball, it turned out that it wasn't a great location.)

The NFL uses Los Angeles in he same way. The NBA uses Seattle. If, as I suspect, the Clippers get sold, it's not clear to me that someone paying a market price would want to keep it as a second LA team. It may well be that the Clippers go to Seattle. I don't think that means the Bucks can stay in the Bradley Center, but it might change the dynamic.

Cross posted at Purple Wisconsin.

Let's succeed and not secede

Both political parties have to deal with purists whose enthusiasm overcomes their common sense. Political activists have more passion than most and passion is not always well informed.

So let me say it. The resolution passed by one of the state Republican Congressional District conventions asserting Wisconsin's right to secede from the Union was dumb. It was dumb from a political perspective and on the merits. We fought a civil war to resolve that question. While I suppose, given the breadth of human evil, that you can imagine circumstances in which a state would justifiably wish to secede - say Nazi or Communist totalitarians established a police state in Washington - that remote and theoretical possibility does not warrant revisiting the nature of the United States.

On the other hand, my friends on the left - and on the editorial board of this paper - might want to be careful about treating this as a Republican or "right wing" issue. After George Bush was re-elected, it was fringe Democrats who discussed the secession of the blue states

There has been a left wing secessionist movement in Vermont that has attracted the support of as much as 13% of the population there. Back in the sixties, radicals, including the widow of Malcolm X, proposed creating a black majority Republic of New Afrika in the deep South.

There has even been prior movements for secession involving Wisconsin. Some proposals to create a new state called Superior have included the northern counties of Wisconsin. Less seriously, Winneconne seceded from Wisconsin for one day in 1967 and still celebrates the event.

Nor is it right - and this is why the Sixth Congressional District action really frosts me - to use the support of a few extremists to tar legitimate concerns about federalism. The Tenth Amendment does matter. Our framers did envision a limited role for the federal government and the states do have rights - although secession is not, under almost all circumstances, one of them.

I spend a lot time fighting for federalism and I don't appreciate it when people who are supposed to be on my side run down the brand.

Cross posted at Purple Wisconsin

What if McDonald's slashed its CEO's pay?

My fellow Purple Wisconsin blogger Jennifer Epps-Addison, in advocating for an increase in the minimum wage, suggests the following:

Here's an idea. McDonald's shareholders could pay their CEO $1,000 or $2,000 an hour instead of the $9,200 an hour he currently makes, and use that money to increase the middle class and boost our economy.

How would that work? Would it really "increase the middle class?" Would it even noticeably impact the salaries of McDonald's workers?

Let's find out.

McDonald's CEO Donald Thompson made $13,751,919 in total compensation for 2012. Not all of that was cash compensation available to be "re-directed" to other employees - his salary and bonus was $ 9,560,311. The rest were stock options but let's put that aside and assume that one could either grant options to the employees or sell stock and redistribute the money. Both are dubious assumptions but let's grab as much of Mr. Thompson's pay as we can.

Ms. Epps-Addison seems to want to take around 80-90% of his compensation. To do so, we would have to suspend reality. If McDonald's reduced CEO compensation by that amount, it'd be looking for a new CEO and, like it or not, the candidate pool would be seriously affected. You can't hire Aaron Rodgers for what you pay Matt Flynn. We understand that for sports and entertainment, but the same rules apply to the market for rare executive talent.

But let's wish that problem away and redistribute most of Mr. Thompson's pay to line workers. Here the analysis gets a little tricky.

Most people who work at McDonald's don't work for McDonald's. They work for franchisees who own and operate over 80% of the chain's stores. But McDonald's exercises a great deal of control over those stores and promoting the brand and business practices that make them successful is part of Mr. Thompson's responsibilities. In any event, I am sure that Ms. Epps-Addison does not want to limit this building of the middle class and improving of the economy to less than 20% of McDonalds' employees. (People who own franchises don't make Thompson money so there would be no honey pot for them.) Let's include all folks who work at franchisees.

But McDonald's is a global company and Thompson runs the whole thing. If we are going to scoop up his pay and dole it out to others, it seems a bit chauvinistic to limit the largess to American employees. But let's indulge our inner Ugly American and ignore that problem. Let's look at only US employees.

The National Employment Law Project estimated that McDonald's and its franchisees employed 859,978 people in 2011. That's the best number I can find quickly. If we reduce the CEO's salary by 90 % and give it to each of these employees, their average annual salary increase would be ... $ 14.40.

For a full time worker, the increase in these folk's hourly wage would be about three quarters of a penny.

A few caveats.

Not all 859,978 are low wage workers; much less employed at the minimum wage. But given the nature of McDonald's business, it is fair to assume that the overwhelming majority are. And even if they aren't - even if only half have sufficiently low incomes to be entitled to a chunk of Mr. Thompson's pay - the average hourly increase would be less than two cents per hour.

Nor do all McDonald's employees work full time. There is no way to figure out the average work week, but taking into account the part time nature of the work force would increase value of the hourly increase even if it wouldn't vault these part time workers into the middle class. For example, if the average worker works half time, the hourly increase - if allocated among half of McDonald's and franchisees' total employment, might reach about three cents per hour.

I'm sure there are some other tweaks and ways in which the data can be refined. But I think you get the idea.

Cross posted at Purple Wisconsin.

Some random thoughts on a new arena

First, it is extremely difficult to make a strong arguments that taxpayers should subsidize an arena. While studies go all over the place, my sense is that it is very difficult to show that subsidized arenas generate enough measurable economic activity to yield a positive ROI. Mostly, they shift entertainment dollars that would be spend on other things.

Second, it is possible to argue that there is a net gain to the locale where a facility is located. A downtown arena may shift entertainment dollars downtown and that leaves the downtown commercially stronger than it otherwise would be. If that's so, then the reluctance of suburban counties to contribute to the cost of an arena makes sense. While people throughout the region may use the arena (and pay the price of admission when they do), the economic benefits aren't felt throughout the region. If one of the purposes of a new arena is to attract suburban dollars to downtown Milwaukee, it's hard to make a case that suburban communities should be compelled to pay for the privilege.

Third, the analysis is complicated by the fact that an arena - and the professional sports team it attracts - can result in benefits that are difficult to measure. If the primary benefits of an arena are the jobs that a facility and the events that it hosts directly benefit, then the case for compelling people to pay for it (because, after all, that's what taxation is - a compulsory taking of people's money) is weak.

But it could be that there are intangible benefits to being a "major league" city and having a vibrant downtown that go beyond the direct benefits associated with sporting events and concerts. Maybe these things make a city a more attractive location for businesses and talented people. If that's true, then the argument that this is a regional responsibility becomes more compelling.

Fourth, if an arena is indeed a powerful generator of economic benefits, we should ask ourselves why any tax money should be needed in order to make it happen. At the very least, one might want to ask why the benefited businesses should not be expected to repay the cost of public contributions to private profit.

Finally, Common Ground's announcement that it "will not support" the new arena is, at best, irrelevant and, at worst, tone deaf. It may be irrelevant because, really, who cares what Common Ground is a fairly standard left wing organization and its constituency may not be critical to the arena decision. It's not apparent to me that they have the political clout to be a player in this.

It may be tone deaf - and a mistake - because many of the people inclined to support more funding for youth athletic facilities will resent Common Ground trying to hold an arena hostage by insisting on a "poison pill" of $ 150-250 million in additional taxation to benefit part of the region. If an arena can't happen without spending on youth facilities in that amount, there will probably be no arena.

I don't know if a case can be made for that level of spending on youth athletic facilities in Milwaukee County or not. My guess is that there are more compelling uses for that money.

I understand that Common Ground believes that better youth athletic facilities are a more compelling need than an arena, although comparing the cost of an arena to a demand for a particular amount for youth facilities seems to be comparing apples to oranges. I also appreciate why it may believe that they may be more able to block funding for an arena than they would be able to obtain funding for youth athletic facilities. They are trying to leverage what they may be able to do into something that they otherwise could not.

But I suspect that they are overreaching.

Cross posted at Purple Wisconsin

Shorewood hates freedom of the press

Here’s a story that you’d think the mainstream media would take more interest in.

A number of Wisconsin communities just voted to pull your freedom of speech.

I have often heard that, if the Bill of Rights was ever put to a vote, it would never pass. We’ve just seen an example of that.

Last week, the enlightened citizens of Shorewood, Whitefish Bay and several other communities voted to repeal the freedom of the press and of the free speech rights of organizations ranging from the NAACP to the National Rifle Association,

They passed an resolution calling for the Constitution to be amended to make clear that only “natural persons” have constitutional rights.

But associations of natural persons who have incorporated to form entities such as the Milwaukee Journal Sentinel, Planned Parenthood are ACLU are not themselves natural persons. The amendment would , as a practical matter, repeal the First Amendment right of all of these groups. It would repeal the free exercise rights of organized churches.

Quite frankly, the resolution was as deep bone silly as any resolution regarding creationism or human sexuality passed by the most fundamentalist county in the deepest corner of the benighted south.

You may object that they did not mean to do this. But wouldn’t it be better not to vote for what you did not understand?

Cross posted at Purple Wisconsin.

Johnson respects victim’s desire for confidentiality

So here’s a non-story. 

“Johnson did not tell police of assault allegations three years ago.” 

While I have a great deal of respect for the reporters who worked on the story – I think they are professional and ethical – this story was not handled well. By choosing that headline (I understand that the reporters do not write the headlines) and putting this at the top of the website, the newspaper seems to have intentionally implied that Johnson did something wrong – that he knew about something that he was obligated to disclose and did not. 

That implication is flat out false. Before I explain why, let me disclose that Sen. Johnson is a client of mine in the case of Johnson v. OPM. I have nothing to do with this matter.

The facts are as follows. Ron Johnson employed a woman, who claims that she was touched indecently - sexually assaulted - by Rep. Bill Kramer. At the time, she was working in Johnson’s office and shared her experience with Johnson’s chief of staff – who subsequently shared what she had told him with the Senator. 

Having hired a lawyer, the victim decided that she did not want to press charges. She decided that she preferred to have her lawyer send a warning letter to Kramer making clear that she would come forward if he did not reform his behavior. When recent allegations against Kramer – apparently witnessed by a roomful of people – came to light, she made good on that warning. 

Johnson and his office respected this woman’s decision about how to handle the matter. They did not go to the authorities and repeat what she had told them. For those of you who aren’t lawyers, doing so could not result in charges against Kramer. What the victim told Johnson’s staffers was hearsay. It would be inadmissible in court. 

So the implication of the headline is that Johnson and his staff should have betrayed this young woman’s confidence and done what she did not want to do. 

To be sure, some might criticize her for not coming forward earlier, but I wouldn’t and no one who wasn’t there should do so either.  I am sure that she made the best judgment that she could – taking into account what happened, the likely effect of her testimony and concern for other women. 

She is an individual who was entitled to decide how she wanted to handle what happened to her without need to have the men in whom she confided try to correct her judgment and “make” her do what she did not want to do. She had to take into account a number of things that no one else could fully appreciate. Respecting her as an individual means respecting her decision. 

The article  quotes a Madison lawyer(and Democratic donor) named Fred Gants stating that employers “have a duty to  follow up” on such situations. Again, the way in which Gants’ comments were reported implies that Johnson may have some legal litigation to report this as an assault even if the victim did not want to. 

I hope that Mr. Gants did not intend to imply that. 

I spent over ten years as general counsel to an employer and had to understand what our obligations were in situations like this. I would be interested to see how any lawyer might argue that an employer has a legal duty to go to police and allege that an adult has been sexually assaulted outside of that employer’s work place by someone who does not work for the employer – particularly where the employer has no information about the assault other than the testimony of the victim and the victim won’t testify. 

In the comments to a post by Purple Wisconsin blogger Jay Miller who argues that the headline on the story is misleading, someone asked what headline would be more accurate. 

Here’s one. 

“Johnson respects victim’s desire for confidentiality.”

Cross posted at Purple Wisconsin

Blurring the lines between the unusual and the routine

Yesterday morning I woke up around 4 am - or, more accurately, my dogs woke up which basically means I'm out of bed. Two hundred pounds of golden retriever is both an immovable object and an irresistible force.

So while they were, let's say occupied, I padded down to the kitchen and surfed to the local paper.

There I saw a banner headline which reminded me, as if I needed reminding, that the most pervasive bias in journalism is in favor of the story. This is not an accusation; lawyers have their own professional biases.

"Walker blurred campaign, county government lines"

A few paragraphs down, we come to the money line - the one that is supposed to dramatically reveal some unsuspected truth. We are told that "Milwaukee County government became a virtual arm of Walker's 2010 campaign for governor."

My goodness, what did they finally find in those e-mails? I have been writing that the story is, at least from a legal perspective,  not new and not interesting. Could I have been wrong?

Of course, I could be wrong. But not this time. While, to be fair, there are some interesting tidbits in the e-mails - there always will be when one has the chance to eavesdrop on what the correspondents (wrongly) regarded as private conversations.

But there was nothing that you would not expect to see in the e-mails of political appointees working for a public official running for office.

They most decidedly do not show that County government became a virtual arm of Walker's campaign. Only a political naif could believe that and the army of reporters who contributed to the story are anything but naive. Indeed, they have written an article that's stance - its foundational assumption-  is so naive as to reveal a profound type of cynicism. If they really expect us to believe that any of this was unusual, they don't think much of us.

From a legal perspective, using the government as an "arm" of the campaign would be to use government workers and taxpayer funds to do campaign work, i.e., raising funds, buying media, organizing lit drops, etc. Other than her fundraising for a candidate other than Scott Walker, the Rindfleisch e-mails don't show that.

What it cannot mean is that political appointees of the government worried about the impact of what they were doing on the campaign and, at times, reached out to the campaign or received advice about how to  respond to political attacks or frame messages. It cannot mean that decisions were influenced by political considerations.

And yet that's all these e-mails show - with one important caveat that I'll get to later.

The group that contributed to the story is experienced and savvy. They don't believe - for one moment - that elected officials and their staff make decisions about messages and budgets and responses to daily events without regard to politics. I am sure that they are aware that politicians running for office talk to their campaign consultants about how what they are doing is affecting the campaign.

They also know - or they should - that it could be no other way. To make policy, you have to address the politics of that policy. To be an elected official - a representative of the people - you had better take into account what the people are thinking and how they'll react. That won't always look pretty, but most of us continue to believe that democracy is a lousy form of government that beats all the alternatives.

We normally don't see the details of this messiness because no one conducts a John Doe investigation into everything they do and gathers tens of thousands of e-mails that remind us - again - that politics ain't bean bag.

But what about the fact that these e-mails were "secret?" That could be significant and that's one of two reasons why I say that the story is only close to a nothing burger.

Once again, the reporters who worked on the story know that it is not unusual for public officials and their staffs to use private e-mails. They know it because I suspect they get e-mails from sources on a regular basis.

That is not, in and of itself, illegal.  Nothing in the law precludes government employees from using private e-mails to conduct official business. There are good reasons for doing so (not everything they may do during the day is official business) and not so good reasons.

Here's the not so good part. If government employees use private e-mails for official business, they may nevertheless be creating a record that, if it is retained (and there is no obligation to keep it)  is subject to production in response to an open records request. So ... if  records were not produced in response to an open records request, then we've got something to write about.

It might not be a crime, but it would be wrong.

As someone who runs an organization that makes numerous open records requests and litigates open records cases, I do not believe that Democrats or Republicans always (ever?) turn over "private' e-mails used for official business.

But they should.

I chuckled when I read e-mails suggesting that the county executive's office "slow down" responses to open records request to match the tardiness with which Mayor Barrett's office was complying with such requests. I can tell you that some of these agencies - yes, we're looking at you, MPS - are almost blackholes when it comes to record requests.

Of course - and here is where I take back some of my snarky "the Journal Sentinel is channeling Inspector Clemenceau" fun. The e-mails - well, actually only the small fraction that are good enough to write about it - are entertaining.

As any litigator can tell you, the advent of e-mail has revolutionized organizational communications and given us all big fat opportunities to embarrass ourselves.

First, they reduce to writing communications that used to be oral and were never memorialized in anyway. In 1989, if I wanted a quick word with the person in the next office, I picked up the phone or stuck my head in the door. Today, even though I can literally talk to my colleague, CJ Szafir through the wall (we office in a very old house; voices carry), I send e-mails.

Second, e-mail is not like the old interoffice memo. It is quick and it seems personal and private. This leads to candid communication which, our common assumption notwithstanding, does not always reflect what we really think or what we would say if we took thirty seconds to thinks about it. Thus, it create s treasure trove for lawyers taking discovery in litigation or political operatives making open records requests.

So it's a bit of fun, but, so far, not much else.

Cross posted at Purple Wisconsin.

Sanctimony, Part I

I suppose that there is no percentage in this for me but I can't help myself. Here are two bits of silliness in the news.

John Schultze, a lawyer with the Department of Transportation has, essentially, been fired because a few years ago he sent around a joke press release touting legalized prostitution as an economic development idea for Wisconsin. Among the benefits of the plan would be job opportunities for W-2 recipients. The release included the undoubtedly offensive suggestion that men who frequent prostitutes probably prefer transsexuals to transvestites.

Now, I certainly understand that prostitution is frequently exploitation of poor women and that's not funny. I suppose one might say that the the bit about transsexuals was "hetero-normative" and we certainly can't have that.

On the other hand, humor often works by being transgressive in the sense that it flips our normal assumptions about things and treats its subject differently than we normally would. Doing so doesn't mean that the humorist endorses what he jokes about.  In this case, the joke was on the idea that someone would think prostitution in the Dells was a good idea.

I have never met John Schultze and wouldn't know him if he came into my office and started telling me the one about the farmer's daughter and the traveling salesman. The joke was executed in a tacky way and not very funny. It was, as we say these days, "NSFW" and, I assume, a violation of the terms of use of the state e-mail policy.

It was all of that and an offense and against good comedic discernment to boot. But was it a firing offense? Have we really become so incapable of exercising judgment about the multiplying third rails of public conversation that we have to destroy everyone who blunders on to something that makes someone - or at least officially protected someones - uncomfortable ? Have our politicians become so focus grouped that they can't stand up for the decent thing to do? No need to answer the last one.

I don't think the joke he forwarded was very funny and I understand that sending it around at work was not the best thing to do. He deserved a reprimand.

But fire the guy? Give me a break.

Cross posted at Purple Wisconsin