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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin

Investigation as political warfare - intended or not

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

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

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

Cross posted at Purple Wisconsin

Free speech for thee and for me

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

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


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


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






Cross posted at Purple Wisconsin

Oh the humanity! A citizen speaks.

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

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

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

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

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

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

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

Why is this a story?

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

But it's a story for two reasons.

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

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

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

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

Cross posted at Purple Wisconsin.

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

Auto workers in the Five Percent?

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin.

Would you denounce a mosquito for biting you?

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

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

Cross posted at Purple Wisconsin.

Ryan is right on the War on Poverty

In Sunday's Journal Sentinel, Joe Volk, a self-described Democrat and man of the left, expresses tentative support for at least some of Paul Ryan's anti-poverty proposals. Good for him. Although I'm not sure I'd describe Rep. Ryan's proposals as a policy epiphany - it's pretty much what he's always done, Mr. Volk is willing to engage in a serious conversation about something important. That's all too rare.

But there was one part of Mr. Volk's column that struck me as jarringly off-key and fairly important to that conversation. So in the spirit in which he started it, let me raise a few questions.

It response to Rep. Ryan's claim that the War on Poverty, begun in the mid-sixties, has largely failed, here is the story that Mr. Volk wants to tell. Anti-poverty programs dramatically reduced poverty until they were "dismantled" by the Reagan administration. Maybe he has access to numbers that I don't, but his story seems almost entirely wrong.

You can see movement in the poverty rate here. Poverty was falling at a dizzying rate during the years preceding enactment of the Great Society social problems. It continued to fall sharply until the early seventies and then fell no further. It has been relatively stable since then. It was not, as Mr. Volk says, at 11% in 1980.  Then the rate  started to turn up again after a run between 11 and 12% in that late seventies, hitting 13% in 1980 and 14% in 1981. You can't blame President Reagan for that.

Mr. Volk is right in that per capita anti-poverty spending was reduced in the early 80s (although it hardly represented a "dismantling' of the programs) and, for a time, the increase in the poverty rate that had begun at the end of the Carter administration continued. But  then it started to fall and then rise, fluctuating between 11 and 15% over the past thirty years. You can track the poverty rate against anti-poverty spending here. If you see a relationship between increased spending and reduction in the poverty rate over the past 40 years, I'd love to hear about it.

Per capita spending on poverty programs has continued to increase steadily without much discernible connection to the rate of poverty.  This is true even if one backs out Medicare spending on the grounds that much of its increase is due to health care costs rising above the rate of inflation rather than an increase in the nature of the support afforded poor persons. Again, so much for the "dismantling" of these programs.

So Paul Ryan's critique - that the War on Poverty has not been effective - seems spot on. But it does require a qualification.

While anti-poverty programs have not reduced poverty without regard to government transfers, it probably ameliorated it. The official poverty rate does not include non-cash transfers (e.g., food stamp, housing subsidies) or tax credits such as the Earned Income Credit (much beloved by Republicans).  If you take these things into account, the reduction in the poverty rate is more significant. In other words, the War on Poverty may have made people who are poor better off than they would have been in its absence.

It's necessary to say that this ameliorative effect "may" be the case because the apparent stagnation of the decline in the poverty rate roughly coincident with the beginning of the War on Poverty might be related. It is possible that the dramatic and continuing increase in anti-poverty spending has contributed to dependency. (This could be true even if poor persons "want" to be self reliant.)

Of course, it's also possible that the poverty remaining when the War on Poverty began is more intractable.

So the truth is more complicated that we fought on a war on poverty and poverty won. We've spent a lot of money - almost a trillion each year by some estimates - and made poor people better off. Whether it has done so efficiently is another matter. We may very well have been able to get the same ameliorative impact with less money or more improvement in the lives of poor people for the same money.

How you see this depends on what you think the War on Poverty was for. If it was just to get people some money, it is (perhaps) an inefficient success. If it was intended to make people self-sufficient (and it was), then it is time for a reassessment.

We have not dismantled the War on Poverty and the War on Poverty has been markedly ineffective in making poor people self-reliant.

Cross posted at Purple Wisconsin.

New York Mayor couldn't make it here

For those who may be savoring the failure of Mayor Bloomberg's inaptly named IndependenceUSA and the "dark money" Greater Wisconsin Committee to take down David Clarke, Charles C.W. Cooke has a great piece up at National Review Online. Cooke sees Bloomberg as a Captain Ahab. His white whales are many - big sodas, transfats, smoking, elevators, cars in the "wrong" places, unapproved headphones and .. guns. But he won't rest until everyone is just like Mike:

Michael Bloomberg, meanwhile, will remain, like Ahab before him, “tormented with an everlasting itch for things remote,” and resolved to “smite the sun” should it have the temerity to defy him. “For all men tragically great,” Herman Melville wrote, “are made so through a certain morbidness . . . all mortal greatness is but disease.” As of today, Bloomberg’s disease is not yet cured, and it will probably never be cured, for his affliction is to have been granted more money than sense; to have bought into the conceit that the average American hews to the same prejudices and privileges as do the chattering classes of the Upper East Side and of fashionable Brooklyn; and to have considered earnestly that his checkbook and his admonitions could ever have held more appeal to the electorate than the honest Midwestern sheriff in the cowboy hat.

Read the whole thing.

Cross posted at Purple Wisconsin.

Sixth District is all good

I live in the Sixth Congressional District where three conservative candidates are vying for the Republican nomination. I have not endorsed one of them because I would be happy to vote for any of them. Each has his strengths and weaknesses, but, on the whole, I can't come to the conclusion that one is clearly preferable to the others.

Ashley Schultz thinks otherwise. She is "terrified" of Glenn Grothman who she believes would "set us back fifty years." Now I think that Ashley is a rising young star and a great addition to Purple Wisconsin.* But I see it differently. 

I am not endorsing Glenn Grothman. His strength is his commitment and engagement with ideas, but, as Ashley points out, his weakness is his tendency to be, at best, overly blunt and, at worst, unmindful of important nuance. If all she is saying is that he has a weakness as a candidate - a tendency to gaffe - that may counsel a vote for one of the others, I have nothing to say. I don't necessarily agree, but it's a fair point.

But I do believe that there's a distinction that needs to be made clear. Ashley may have assumed it. I think it needs to be made explicit.

It's one thing to criticize a candidate for not adequately negotiating the shoals of our silly public discourse about things like a "war on women." But we still ought to recognize that the discourse is, in fact, silly.

We see it happen again and again. Someone will make a statement that is either ambiguous or "objectionable" only for its failure to show proper obeisance to certain sensitivities or to one of the canonical myths of politically correctness. The statement may fail to add a Seinfeldian qualification ("not that there's anything wrong with that") disavowing a bias that has not been expressed. It may  come too close to an uncomfortable truth that is susceptioble to misinterpretation (e.g., Paul Ryan's recent statements regarding the interaction of culture and poverty).

He or she will then be overwhelmed by charges of "racism" or "sexism." When his or her defenders point out that the charges are untrue, the attackers will just scream louder or say that, even if it was not biased, the statement was in some sense "insensitive" so "just as bad." Because being seen as "racist" or "sexist" is anathema in today's society, people who know better either join the pogrom or head for cover.

Now, to be clear, I don't think that's what Ashley is doing. But the examples that she gives are instructive. In our hypersenstive world, they may be political gaffes, but they are not substantive errors.

For example, Grothman made a statement about young men being more interested in making money because they may someday be breadwinners. He was arguing that disparities in pay between men and women do not necessarily reflect employer bias. One alternate explanation, he said, might have something to do with life choices. He gave the example of two lawyers who marry. The husband stays at his firm while the wife takes time off to raise the children. At 50, he'll probably be making more money than she is, but this will not be the product of employer bias.

The first thing to note is that Grothman is right. This story applies to about many lawyers that I know. For whatever reason, women have been more likely to step out of the workforce - or take less demanding jobs - for family reasons. This has consequences. Indeed, yesterday's New York Times reported on a study finding that "too much" family leave can hurt one's career prospects.

The second thing to note is that his point was not normative - he was not saying that this is the way it should be - only that it has been the way it is.

It could be that women who are becoming lawyers today will be less likely to do this in the future. It may be that the greater tendency - so far - of women to interrupt their careers (or take more family friendly jobs) is the product of "socially constructed" gender roles. It may be that employers should - whether on their own or by compulsion - adopt more family friendly policies so women are less likely to leave - even if this does impose costs on others.

But none of this is what Grothman was addressing.

Ashley quotes an old - and admittedly inartful - statement opposing mandatory life sentence for persons committed of two or more counts of sexual assault of a child. While one could read the statement as being "insensitive" to victims, Grothman's point was that all such offenses are not the same and that some sentencing discretion may be in order. For example, do we want to impose a mandatory life sentence on an 18 year old convicted of having sex with his fifteen year old girl friend? He could have said it better, but it seems pretty clear that this is what he meant.

Now I understand that many people don't want to think this hard (although it's really pretty easy) about what someone has said. Some don't want to give a political opponent the benefit of the doubt. Others find it easier to suspend critical analysis. For them, it is enough that he said something that  - kind of, sort of  - has to do with gender roles or some other sensitive topic and that's icky.  It's easier to think one has preserved one's own virtue by pre-emptorily throwing the speaker under the bus.

Of course, Ashley Schultz is not one of those people. But I think we need to make a distinction between criticizing a candidate's political skills and judgment, on the one hand and his or her substantive positions on the other.

* By way of disclosure, Ashley works at St. Anthony's School where I am on the Board of Directors. I have no authority over her, but, even if I did, she should feel to tell me where I'm wrong. God knows I need it.



Cross posted at Purple Wisconsin

Comments

This little blog used to have a robust debate in the comments section. But, over time and particularly after it became co-hosted at the Journal Sentinel, the quality of the comments deteriorated. Not that they became more critical of what I said - we always had that, but the posters were less likely to want to engage. I did not have the time - or the interest - to trade insults with people that I don't know. Eventually, I stopped reading them.

A couple of weeks ago, one of my colleagues said that the comments section here had become a cess pool. Last night, I checked on that and he was right. In fact, some one has been posting here as me. I actually have not posted a comment on this blog for two months.

In the past, I didn't want to moderate comments because it would pretty much eliminate them, but I can't let the type of silliness that occurred here continue.

So you can comment on this blog. You can criticize me or call me a fool. But you can't pretend to be somebody else and you can't use scatological references or make offensive remarks about Scott Walker or the President's daughters. You can't defame people. You can't link to ... well I don't know what it was and I'm not about to look. To try and make sure that doesn't happen, I've turned on comment moderation.

Of course, you have a First Amendment right to say whatever you want. You just can't do it here because I believe in property rights as well as free speech.

Support for the Tenth Amendment is not support of nullification

The headline over a recent Dan Bice column says that "For candidates, nullification a key campaign theme."

As it applies to Senate candidate Jonathan Steitz*, there is no evidence ot that. In fact, I'm afraid the column uses the term "nullification" too loosely. Here are a few things to keep in mind.

In it's legal sense, nullification has a very specific meaning. Dan Bice thinks that it is "pretty straightforward" to suggest that Steitz supports nullification because Steitz said, in response to a questionnaire, that he would support a law the questionnaire described as protecting Wisconsin's Tenth Amendment rights and told Bice that he would "resist any effort by the federal government to regulate the ability of Wisconsin citizens to exercise their Second Amendment Rights."

Let's begin by defining nullification - something that Bice neglected to do. It is a doctrine claiming that, because the Constitution was a compact between the states, each individual state is the ultimate arbiter of its constitutional obligations. Each state can "nullify" a federal law that it believes violates the Constitution by refusing to comply with it or, presumably, preventing federal officers from enforcing it within that state's boundaries. No state is bound by judicial decisions with which it disagrees, including those of the US Supreme Court.

This doctrine is typically associated with the resistance of southern states to the abolition of slavery or the enforcement of civil rights laws, but it has a broader history. While the matter is not without dispute, Madison and Jefferson seem to have supported at least some form of nullification and the issue first came to the fore over tariffs, not slavery. Even as it relates to slavery, there were proponents of nullification on both sides of the question. Indeed, the Wisconsin Supreme Court famously refused to abide by an order of the United States Supreme Court in a case involving enforcement of the federal Fugitive Slave Act against those who helped an escaped slave, Joshua Glover, evade federal authorities.

But whatever its more respectable historical provenance, nullification is no longer good law. It is now well established that, under the Supremacy Clause, states are bound by the federal courts' interpretation of the scope of federal authority.

But this doesn't mean that the federal government can order a state to do anything or regulate any conduct within its borders. It does not mean that all resistance to federal authority is nullification.

Assertions of Tenth Amendment rights are not attempts at nullification. Because nullification has to do with who gets to decide the boundary between state and federal power, one cannot automatically call assertions of state sovereignty or claims of federal overreach nullification. If, for example, one claims that the federal government lacks authority to regulate the sale of firearms manufactured and sold wholly within the state of Wisconsin and argues that a federal law which purports to do so is unconstitutional, one is making a claim about Congress' power under Article I and Wisconsin's rights to regulate intrastate conduct under the Tenth Amendment. A claim that a federal law violates the Second Amendment is an argument about the scope of a provision in the federal Constitution. These claims amount to nullification only if one says that Wisconsin has the final say on these matters.

The law introduced by Rep. Michael Schraa - which I take to be the one asked about in the questionaire - doesn't take that extra step - at least not in the version that I've seen. As I understand, it does not prevent federal authorities from enforcing federal law in the state. It only prevents state and local authorities from doing so. (This is not to say that I would support the law; I don't think I would.)

But it does say that Wisconsin law enforcement officials cannot enforce federal laws - presumably without regard to the constitutionality of those laws. Isn't that nullification?

Actually, no.

The federal government cannot force states to enforce federal law. Remember the health care exchanges to be created under the Affordable Care Act? I bet you do. As we all know by now, Congress provided for federal exchanges in states that refused to create their own. It did so because the federal government cannot make states implement a federal regulatory scheme. One of the leading cases on this rule - often referred to as the "anti-commandeering" doctrine - arose in the context of federal firearms regulation.

When Congress enacted the Brady Handgun Violence Protection Act, certain interim provisions required state and local officials to conduct background checks to enforce the law. In a case called Printz v. United States, the U.S. Supreme Court held that this "commandeering" of state and local governments to enforce federal law was unconstitutional. Without knowing precisely how the issue would present itself, it may well be that Wisconsin is within its rights - no nullification - to refuse to assist federal law enforcement. Again, however, the US Supreme Court would have the final say on the question.

Of course, this is not to say that it is a good idea for state and local law enforcement to refuse to assist in the enforcement of federal gun laws. Indeed, some conservatives are critical of states and localities who refuse to cooperate in the enforcement of immigration laws. But these are questions of policy and not nullification.

*By way of full disclosure, I endorsed Steitz  - although the heat generated by that race compels me to say that it was because I thought he was best candidate and not because I thought his opponent was "bad."

Cross posted at Purple Wisconsin

What about the misery in our midst?

There was a recent conference in Milwaukee on violence in the central city. The "Misery in Our Midst" forum was hosted by Rep. Gwen Moore who invited, among others, Rep. Maxine Waters (D-Cal.) to speak. Rep. Waters apparently thought the key to the matter was that she could walk outside the hall and get a gun in ten minutes, but could not get a job in ten minutes.

Catchy, I suppose, but what does it really mean? Not, I think, what she intended.

I don't know that Rep. Waters could get a gun in ten minutes, but I do know that she could not get one legally. I also know that, in most parts of the city and metropolitan area, you cannot even get a gun illegally in ten minutes - and maybe not at all.

So if she is right, the observation reflects a certain degree of of lawlessness that does not seem to be present elsewhere. If true, it's not because the area in which the meeting was held is heavily African-American. There are areas in Milwaukee with lots of African-Americans (my sister lives in one) where I suspect you'd be arrested long before you ever got an illegal gun.

A culture of lawlessness certainly may be - probably is -  related to poverty, but this is where Rep. Waters statement begins to turn in on itself. Which way does causation run?

Let's stipulate that poverty contributes to crime, although we should acknowledge that there was a time in Milwaukee when discrimination was much more pervasive and the poverty rate much higher, yet the crime rate was a fraction of what it is today.

But the fact that poverty causes crime does not mean that one can reduce poverty without reducing crime first. As long as Rep. Waters is not safe outside that hall, it is unlikely that the surrounding neighborhood will ever enjoy economic prosperity. Just as poverty can cause crime, crime can cause poverty.

The second part of Rep. Waters comparison reinforces the point. It is a false and misleading contrast.
it is not reasonable to think that one ought to be able to get a job as quickly as one can engage in an illegal transaction. Certainly, external conditions affect the availability of jobs and the ease of getting one. But jobs are not entirely a thing that happens -  or is just given -  to you without regard to what you do to prepare yourself for one.

If you grow up in an area wracked by violent crime, family breakdown and social chaos, getting yourself to a place where you are likely to get a good job becomes very difficult.

It would be wrong to think that addressing poverty is simply a matter of addressing crime or family breakdown (neither of which are simple). But doing something about them would probably do more than the pile of acronyms that provide job training and other "services" today. To rule out even talking about the problem because it is "blaming the victim" is to ensure that Rep. Waters observation will continue to be true and misery will remain in our midst.

Cross posted at Purple Wisconsin.

Kentucky law prof misses the mark

Yesterday's Milwaukee Journal Sentinel featured a column by a law professor from the University of Kentucky who made some serious charges against the Wisconsin Supreme Court in connection with its decisions last week on voter ID . Professor Joshua Douglas accused he Court of hypocrisy. He said that the decisions reflected "both breathtaking judicial activism and ignorance regarding the difference between the federal and state constitutions." He criticizes the Court for improperly questioning "a federal court's analysis on a federal issue."

He's wrong - perhaps even "breathtakingly" wrong - on all three counts.

Professor Douglas seems to think that the Court is hypocritical and "activist" (a term I suspect he would never use other than polemically) because it adopted a "saving construction" of Wisconsin law. The Court read state law to require photo identification to be given even to persons who lack documents, such as a birth certificate, used to prove their identity and who cannot get them without having to pay a fee. This enabled it to conclude that the voter ID law does not impose a burden on voters who lack these documents that is sufficiently severe to violate the state constitution.

Professor Douglas seems to think that this is wrong because a saving construction can "only" be made with respect to the statute being challenged and that this construction was not of the voter ID law itself but of a "a separate administrative regulation — one that was not at issue in the case."

There is no such ironclad rule that a saving construction of state law must be to the statute that is challenged when, as here, it is the interaction between that law (voter ID) and other statutes (e.g., those requiring a fee to obtain a birth certificate) that are said to impose an unconstitutional burden.

In any event, the Court was construing the voter ID law. It is the voter ID law - Act 23 - that requires the state Department of Transportation to provide IDs free of charge for purposes of voting. In implementing the law, however, the DOT required applicants to produce certain proof of identity that cannot be obtained without paying a fee. An administrative rule said that it may, but need not, waive this requirement. The Supreme Court's decision held, in effect, that the voter ID law's mandate that ID be provided free of charge did not permit any discretion when it comes to IDs to be used for voting. (It is true that the parties seemed late to the game on this; but the impact of this regulation was discussed in briefs and at oral argument.)

There is room for disagreement over whether this construction is consistent with the statutory language, but I don't believe that the Court's attempt to undertake it was hypocritical or "activist." Construing state law is what state courts do.

This is why the Supreme Court was not wrong - or at least not out of bounds - in criticizing the decision of a federal court to move ahead with a challenge under the United States Constitution and federal Voting Rights Act. The decision in question is Judge Adelman's opinion enjoining voter ID in Frank v. Walker. In a footnote, the Wisconsin Supreme Court said that his decision to move ahead before it had first ruled on what the voter ID law actually does was "most unusual." These comments were not, as Professor Douglas' thinks, a state court questioning "a federal court's analysis of a federal issue." Rather, it was a state court making the rather obvious black letter point that a federal court often cannot resolve a federal challenge to a state law without knowing what a state law means. On this latter question, it is axiomatic that the interpretation of the state's highest court controls.

As I have written elsewhere, last week's decision may have implications for the appeal of Judge Adelman's decision in Frank. In that case, the plaintiffs argued - and Judge Adelman accepted - that persons seeking free state ID would be unable to get them if they lacked underlying proof of identification and would have to pay to get it. That now turns out to have been wrong.

It is, of course, possible that Judge Adelman would reach the same decision on voter ID even with last week's saving construction. But he - and now the appellate court - are bound to accept it as correct because the Wisconsin Supreme Court is the final arbiter of what state law means. The court of appeals will now either have to review his decision without resort to one of the premises on which it was based or send it back for further consideration. One should not be suprised that the Wisconsin court thinks the federal court should have waited for it to clarify state law before moving ahead with a federal challenge.

Indeed, the Frank case was stayed for quite some time to permit state litigation to move forward and many lawyers believed that Judge Adelman would wait for the state courts to rule.

Finally, Professor Douglas should be disabused of any notion that the Wisconsin Supreme Court does not "understand" the difference between the state and federal Constitutions. I am quite confident that it does.

It is true, as he notes, that there is no explicit "right to vote" in the federal constitution and that there is such an express right in Art. III, sec. 1 of the state Constitution. But federal courts have held that voting is a "fundamental right" subject to protection under the Fourteenth Amendment's Equal Protection Clause. While this does mean that, in a sense, the "polestar" under the US Constitution is "equality," it is also important to be more specific about what that means.

It does not mean that federal courts will no invalidate state election laws that treat everyone the same. To the contrary, any law that burdens the right to vote will be subject to federal review with the standard of review, i.e., the level of scrutiny applied by the court, varying based on the nature of the burden that the challenged law imposes.

The Wisconsin Supreme Court certainly understood that the challenge before it was under the state Constitution. But it held that its precedent required it to adopt the same standard used by federal courts in assessing claims under the Equal Protection Clause.

You can argue that it should have adopted a different - and tougher - standard. I don't think so - and argued as much in an amicus brief filed on behalf of former Lieutenant Governor Margaret Farrow and others. A more exacting standard would unduly interfere with state regulation of regulations as Justice Roggensack recognized.

But the mere fact that the Supreme Court disagreed with you does not mean that it did not "understand" the question. Professor Douglas wants the Wisconsin Supreme Court to review burdens on the right to vote differently than federal courts. There is a vigorous debate over when and why the state Supreme Court might depart from federal interpretations of similar constitutional guarantees. I know that, often to my disappointment, it rarely does so. While the existence of an express right to vote may be used to impose a higher standard of review than the federal courts use in protecting the "fundamental" right to vote under the Fourteenth Amendment, I am not surprised that the state Supreme Court decided to move in lockstep with the latter line of cases. That is what it usually does.



Cross posted at Purple Wisconsin

The Affordable Care Act and the rule of law - again

The rule of law is popular in theory, but a hard sell in practice. It tends to get in the way of what "we" want to do and requires that all sorts of procedures be followed before people can be legally bound or the public's money can be spent. It can be hard, under those circumstances, to "get things done."

Thus we have President Obama's impatience with Congress. It would be easier for him to get what he wants if he could just do it himself. I've often felt the same way.

But the thing is that the rule of law - the insistence upon following the law as it has been written and respecting the proper procedures for changing it  - is what separates citizens from subjects. You may like what President Obama does outside the law withe respect to, say, health care or immigration. But just remember that the power you cede to him may one day be exercised by a President Paul Ryan or Marco Rubio. Maybe even Rick Perry or Scott Walker. There are no permanent victories in politics.

So what of last week's decisions about the availability of subsidies in states that have not established insurance exchanges under the Affordable Care Act.  There are three things to keep in mind.

First, the language in the ACA that restrict payments of subsidies to policies purchased on "exchanges established by a state" is not readily dismissed as a typo or grammar error. No one forgot to change the number of a section or make uniform a change in terminology. If it was a mistake, it was an egregious one - the kind that no competent lawyer who was paying attention ought to make.

It's simple English. If I allow for exchanges to be established 1) by a state or 2) by  the federal government and then provide for subsidies only for exchanges established by a state, then the subsidies don't apply to exchanges established by someone else.

The Milwaukee Journal Sentinel's editorial board suggests that "established by a state" can mean "established for a state." Not in English.

Second, the editorial board regards the "intent"of Congress as obvious. "Of course," it opines, Congress did not "really" mean to exempt the residents of 36 states from "the benefit" of tax credits (credits, incidentally, that can impose penalties on state employers and which cost real money) just because those states did not establish an exchange.

One might answer that they must have been what Congress "really" intended this because it is what Congress "really" did. But there is another problem with the board's reading of the legislative history of the relevant legal provisions as self -evidently clear.

Neither of last week's decision agreed with the board on this.

That's right. Neither the DC Circuit or Fourth Circuit majorities thought that the legislative history established that Congress intended that tax credits be available for federal exchanges. Even the Fourth Circuit found that the evidence of Congressional intent was inconclusive.

It is easy to imagine that Congress wanted something else. Indeed, one of the current enthusiasms among lawyers and scholars on the legal left is "cooperative federalism." It is, in fact, quite common that federal largesse is made contingent on states setting up a program or adopting a particular policy. While there is certainly an argument that this should not be done with a law like the ACA (assuming one wants like a law like the ACA), there are also arguments that it should.

In fact, there seems to have been two versions of the ACA originally drafted in the Senate. One provided for subsidies in federal exchanges and the other did not. The two were merged and the language of the latter survived. Normal principles of statutory construction say that a legislative body could not have intended to adopt language that it rejected.

Third, the board's conclusion that the "purpose" of the law should trump what it says ought to scare you. We are governed by the rule of law and not persons. We are, as I wrote earlier, citizens and not subjects. Perhaps Congress never believed that states would not set up exchanges. Maybe, as some evidence suggests, they understood that some may not do so and wanted to use the tax credits as an incentive.

Either view is consistent with the "purpose" of the law. Adopting some broad and unqualified purpose -  to "increase" coverage" - is to beg the question. In enacting the ACA, Congress did not authorize the President to change the law as long as it increased coverage. It passed a law that it thought would increase coverage in a particular way. Just what that way entails is best discerned by reading the law that they wrote.

Cross posted at Purple Wisconsin

The eggshell President

Over at Right Wisconsin, I have a column on the notion that Barack Obama is somehow subjected to more abuse or disrespect than other Presidents. Until this week, I would have thought that the idea that opposition to President Obama can be dismissed as based on his race was either intellectually lazy or simple partisan mischief.

If in a particularly ornery mood, I might have pointed out that this view is, in its own way, a manifestation of political hatred and ignorance. It should not he hard to understand why conservatives and libertarians would be apoplectic over a President who, whether you like him or not, is a pretty strong statist and fairly far to the left by recent standards. You can disagree with them, but to believe that they could have no reason for their opposition other than race is to refuse to even listen to those you disagree with. it It is to accuse them of subscribing to a noxious set of views without the slightest evidence.

In short, flinging allegations of racism at the President's critics is every bit as divisive and demagogic as the worst you may imagine about the late 60s GOP's supposed "southern strategy."

But it may even be worse than that.

If all you do is follow the mainstream media (including this newspaper). you probably have never read this story. (Indeed, to get the story locally, you would have had to listen to the "hateful" people on talk radio who "destroy everything that is good in our lives.")

At a holiday parade in Norfolk, Nebraska,  someone entered a float that depicted the Obama Presidential Library as an outhouse. There was some kind of mannequin - described as "zombie-like" - that the proprietor of the exhibit said was supposed to be himself and not the President. He says he is a veteran and was depicting himself as dismayed by the poor care at VA hospitals.

Others disagree. They say that he was portraying the President outside of an outhouse. I don't care. Let's assume it was the President.

The float was, in my view, simple-minded and unimaginative. Potty humor got old for me sometime around 1962.  I also tend to agree with the idea that Fourth of July parades aren't the best venue for political commentary.

The float certainly was not original. President George W. Bush's future Presidential library was also portrayed by as an out house - but not by an obscure float in a relatively small town. To the contrary, the Bush Presidential Outhouse was a product of Mike Luckovich, a nationally syndicated political cartoonist who has received two Pulitzer prizes for his brand of progressive potty humor.

And that was his constitutionally protected right. I would have thought that we were permitted to mock our Presidents. We've sure done a lot of it.

But, no. The Department of Justice has actually sent representatives to Nebraska to address this potential violation of our civil rights laws. It's Community Relations Services team has been dispatched to "resolve" this objectionable criticism of the boss.

I could explain all of the reasons why this is wrong, but I shouldn't have to.

If you aren't bothered by the idea that the federal government would send agents to investigate and "mediate" criticisms of the head of the federal government, you are not a civil libertarian. Don't tell me that you give to the ACLU. Don't explain how groovy you are on gay marriage, abortion, marijuana or the NSA. You have no regard for the First Amendment. You are committed to freedom for yourself and those like you, but not for others.

Cross posted at Purple Wisconsin.

Whither Mr. Penzey?

Bill Penzey strikes again.

In a recent version of his newsletter, he either describes - or endorses a description offered by some one else (standard punctuation doesn't seem to be among his interests) - of conservatives. He says - directly or by agreement - that conservatives - or at least the ones on talk radio - offer "poison to everything that's good in our lives as a roadblock to the path of Kindness that leads to cooking."

Now, I hadn't thought that cooking was a political act. I am aware that fevered imaginations can make it so just as some on both sides of our political divide convinced themselves that watching (or not watching) the World Cup was an ideological act. Let's put that silliness aside.

Would I ever say that the American left is a "poison to everything that's good in our lives ?"

Now, if anyone would be inclined to do so, it would be someone in a position like mine.  I believe that liberty is preferable to command and the direction of  life through politics - as opposed to markets or voluntary communities - should be avoided as much as can it be.

Although I enjoy what I do, I am sufficiently persuaded that this perspective is most conducive to a better life for everyone, that I spend about 60 hours per week advancing it. (I don't do it for money. Although I am very well paid, I made a lot more - over two to three times as much -  as a business lawyer.)

But I understand that intelligent and well-intentioned people can disagree with me. They offer a perspective  that ought to be respected - even as it may be robustly criticized. I'm too old to think that I have a monopoly on truth or morality.

But I guess Mr. Penzey is not. While I am sure that he doesn't see himself in this way, his newsletters suggest that he is simplistic and close-minded; one who fears and refuses to understand "the other."

Of course, there's another possibility - one that I suspect is just as likely as not. It could well be that Penzy's all-in lefty posturing is a marketing ploy. He sells what I suspect are commodity products - one that are really not much different from those of his competitors. To differentiate his spices, he wants to convey a message to the earth mothers and aging hippies that, by buying Penzey's, they are still part of the revolution.

At heart, he's just another capitalist.

Cross posted at Shark and Shepherd home page.

Burke's posing on campaign contributions

Mary Burke's says that she'll ban out-of-state campaign contributions. Given that she is going after out-of-state cash, it was cynically offered as a way to step on the announcement that Governor Walker is far ahead in fundraising.

In any event, such a prohibition would  almost certainly be unconstitutional.

It could not, under current constitutional doctrine, be justified by a desire to prevent Wisconsin candidates from associating with out-state donors or to keep those donors from being heard on Wisconsin elections. It would be permitted only if courts could be persuaded that out-of-state money - by virtue of its origin and not its amount (out-of-state contributors are subject to the same limits as everyone else) - presents a larger risk of quid pro quo corruption.

That strikes me as a hopeless task and it has failed whenever it has been tried. The question that critics of out-of-state money ask is this: Why would someone in Texas care about an election in Wisconsin?

The question answers itself. In federal elections, it's easy. A Member of Congress from Wisconsin gets the same vote on matters that affect Texas as one of its own representatives.

In state elections, it's just as easy. For someone to be able to get something from a Wisconsin elected official, he or she must have some interest in the state of Wisconsin. If that's so, then the risk of corruption is no greater than that presented by residents of the state - who also have interests in the state of Wisconsin. In other words, the threat of corruption is no greater with, say, the CEO of Georgia Pacific or a PAC associated with the national office of AFSME than it is with a local union or the CEO of Epic Systems.

If one is truly "outside" the state - i.e., someone with no tangible interest in state government - then there can be absolutely no risk of quid pro quo corruption. If George Soros or Sheldon Adelson have no business here, then they cannot benefit from state government. Their interest must be purely ideological, i.e., it must reflect a view about what is best for the state and, by extension, the country. If states are the laboratories of democracy and if a significant piece of national policy consists of the external effects of the policies of the individual states, it's not hard to see why a conservative or liberal donor in another state might care about what happens here.

Indeed, I suspect that much of the heavy spending from out-of-state donors on both sides is ideological.

When people criticize out-of-state contributions, they are really claiming that "outsiders" should have nothing to say about our elections. That strikes me as understandable, if a bit insular. But it's not enough, under our Constitution as interpreted by the Supreme Court to restrict the rights of expression and association involved with making and receiving campaign contributions.

Cross posted at Purple Wisconsin

More misinformation on Hobby Lobby

Yesterday's Milwaukee Journal Sentinel published a column by Leonard Pitts criticizing the Hobby Lobby decision. It stands in substantial need of correction.

Pitts writes:

I once saw a protest sign to the effect that if men gave birth, contraception would be bacon-flavored and dispensed from vending machines. Can anyone argue the truth in that?

I can. Pitts needs an editor, because contraception is dispensed from vending machines. At least it is in men's rooms. I can't speak for the women's. Birth control pills, as far as I know, are not because they must be filled by prescription. But the FDA apparently allows Plan B by vending machine. My guess is that, if a strong medical case could be made for over the counter availability of traditional birth control pills, there would be wide spread support.

Pitts writes:

Would we even be having this debate if some company has a religious objection to Viagra - or vasectomies?

We probably would not be  - but not for the reason he thinks. We wouldn't be having it because Obamacare does not compel anyone to cover Viagra or vasectomies. Most insurance plans do cover them but, then again, most cover contraception as well - and did so before there was a mandate.

If government did mandate coverage of vasectomies, there may well be some companies - say those run by very traditional Catholics - who might object. The claim of such objectors under RFRA would be subject to the same analytic framework as Hobby Lobby's.

Pitts writes:

If it is too much to ask Wheaton College to fill out a form because an employee will be "triggered' to buy contraception on her own, does the school also have the right to scrutinize and approve other purchases made with the salary she earns from them?

Not a chance. There is a difference between being made to pay for something - or to participate in its purchase - and to seek to control the use someone makes of an employee's money after it has been paid to her and becomes "hers." If Pitts can't see that, be needs to try harder.

Pitts writes:

In its rush to confer personhood on organizations and constrain women's choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by  a given business without first checking to make sure that you didn't offend the owner's religious sensibilities.

The only rights recognized in Hobby Lobby were human rights - the rights of the humans who built and own the company. I presume that Pitts believes that the humans who own the corporation he works for - the Miami Herald - have a First Amendment right to publish his work.

The question for the court was how to reconcile conflicting claims of right by human beings. The idea that this conflict can be made to go away because some humans are exercising those rights in a corporate form or in the course of a commercial pursuit is preposterous. It's still there and still must be addressed.

In Hobby Lobby, the Religious Freedom Restoration Act provided the framework for resolution of that conflict. As the Court made clear, that does not mean that any claim of religious offense will prevail.

Finally, Pitts is upset because the Hobby Lobby majority suggested that an  accommodation for nonprofits that required the insurers of objectors to provide contraceptives for free would be a less restrictive way to provide free contraceptive to employees of for profit companies like Hobby Lobby. But, several days after the Hobby Lobby decision, he thinks the Court "judged" that provision to be an unreasonable burden because it issued a temporary injunction freeing Wheaton College from having to fill out certain paperwork in connection with that accommodation.

Here Pitts gets into the legal weeds and entangles himself. It is not true, as he writes, that the Hobby Lobby court held that this accommodation would be legal as applied to religious nonprofits. It simply said  that it would be one less restrictive way to accomplish the government's objective of providing free contraceptives for employees of for profit companies. It did not say that it was the least restrictive way - which is what RFRA requires.

 His upset is premature. The court has not made a final decision on the Wheaton College case. It has only freed Wheaton from compliance - until its claims can be adjudicated. The injunction clearly indicates that a majority of the Court believes that Wheaton has a serious case, but that does not mean that Wheaton will win.

Cross posted at Purple Wisconsin

Why Sen. Johnson is right

Once again, I feel compelled to respond to a legal opinion offered by the Journal Sentinel's editorial board. In this case, the board believes that the case that I and my colleagues at the Wisconsin Institute for Law & Liberty on behalf of Sen. Ron Johnson should be dismissed. Although it will leave the "legal particulars" to the court (good call), the board thinks that Members of Congress and their staff "should" receive employer provided health insurance.
So do I.
But Congress did not.

It decided that Members and their staff should be in the same position as those most affected by the new Affordable Care Act. It decided that this would help Members and staff to understand the impact of the ACA and provide credibility to both Congressional proponents and opponents of the law. So it repealed federal health care benefits for Members and staff and said they may only be provided with insurance on exchanges. People who purchase in individual exchanges (the only ones that Members and staff qualify for) can't get tax free employer contributions.

When it came time to walk the walk, a minority of Members objected. They asked their colleagues to change the law and give back the benefits they had taken away. Congress refused. Unable to change the law, these Members asked the administration to bail them out and they did - writing a rule that undoes the law that is actually on the books.
Judge Griesbach will decide if Senator Johnson has standing to challenge the blatantly illegal rule that rewrites this mandate of equal status. I've been doing this too long to think I can predict the outcome of a case like this. But we believe that he does and , not as the board suggests, because of a generalized desire to see the law enforced.

Rather, the Senator has standing because it harms his relationship with his constituents and the ability to manage his personal staff in accordance with the law.
Rightly or wrongly, Congress decided that being in the same boat with those most affected by the ACA was important. Each Member is now entitled to insist on that status and is injured by the government's blatantly illegal rewrite of the law to evade it. (A Member can decline benefits for herself, but not for her staff.) In addition, each Member has an unavoidable legal responsibility to take certain steps to comply with the illegal "workaound" the law that Congress passed. This too supports standing.
The editorial board dismisses this interest in equal status as mere government "hypocrisy" and suggests that nothing should be done about that. What it doesn't understand is that a federal court is unlikely to dismiss what a co-equal branch of government has done as a mere stunt or meaningless act of political masochism. If Congress has a reason to do what it did, then Members of Congress - the very people affected by what it did -  have a reason to insist on it.
But whatever comes of the standing argument (something that we knew would be raised), the outcome of the case should not turn on whether it is "good" for Members and staff to get federal health benefits. Congress decided that they should not. If that decision was wrong, Congress itself controls the remedy. It can repeal the mandate of equal status that it adopted.
But so far it hasn't. In a nation of laws, it is not for the Executive Branch or the judiciary to do it for them. To say that Senator Johnson, for insisting on fidelity to the law, is engaged in a "political stunt" is quite disappointing. I would have not have thought we'd come to the point where convenience trumps the rule of law.

Cross posted at Shark and Shepherd home page

The Myths of Hobby Lobby

Here is a statement that is objectively false.

In a stunningly misogynistic and regressive decision, five male justices of the Supreme Court of the United States have decided that if you are a woman your boss can force you to adhere to his religious beliefs.

- Kristen Hansen, Blue in a Red County (emphasis supplied).

Now I have no doubt that Ms. Hansen sincerely believes this, but it isn't true. Your boss can't force you to adhere to his religious beliefs. 

The statement is not even close. It is not arguably true. Nor is it metaphorically true. It is not true if translated into any other language on the face of earth. It's not true with fingers crossed behind your back.

It just isn't true.

As a result of Monday's decision in Burwell v. Hobby Lobby, no one will be forbidden to use any form of lawful contraceptive. All the Court said is that the government can't force your boss to pay for them - if he or she has a genuine religious objection to providing them.

In fact, the truth is almost the opposite of what Ms. Hansen thinks it is. The rationale behind Hobby Lobby is that the government cannot enable you to force your boss to follow your religion or ethical views regarding aboritfacients (Hobby Lobby covers all other forms of contraceptive, including the pill, the diaphragm, etc.) You cannot make her pay for things that her religion tells her are wrong - unless there is no other way to achieve a compelling governmentment interest. If, as protestors outside of the Court claimed, your birth control is none of your employer's business, don't ask her to pay for it. (And, yes, some of the owners who objected in this case were female.)

But wait - if your boss doesn't pay for something, doesn't that mean that you won't be able to get it? You'd think the problem with that claim would be clear upon stating it.

But I guess not.

To say that a person is "denied" access to something every time someone else is not forced to pay for it does troubling violence to both the English language and to our notions of individual freedom and responsibility. It would be to say that women (and men; these things are normally needed only when one of them is around and, if he is a man, he ought to be concerned too) have been "denied" access to contraceptives until passage of the ACA's mandate. It would be to say that those who work for employers who are not covered by the ACA or whose employers choose not to provide coverage are "denied" access. Neither is true.

To be sure, most of us would prefer that someone else pay for our stuff. And there are certainly people for whom even the relatively low cost of contraceptives can present difficulties. Given the relatively low cost of these drugs, it's not clear that many of them work for Hobby Lobby (it pays sales clerks twice the minimum wage) or, for that matter, any other employer who provides the relatively expensive insurance mandated by the ACA.  But let's put that aside. The solution is not to run roughshod over those closely held employers with a religious objection. If the government wants people to have these things for free, it can be done - and more honestly done - without forcing religious objectors to pay for it.

The irony here is that, in other contexts, we want "for profit" businesses to conduct themselves in accordance with moral precepts. We want them to be "good corporate citizens" - but apparently only to the extent that those moral precepts are approved by a political majority. 

And there's the problem. The guarantee of religious liberty is not limited to beliefs that "we" approve of. There would, in fact, be no need to protect religious beliefs shared or tolerated by a majority. It is unlikely that any law would ever be passed restricting them.

Now, if you don't like, this, you ought to call for repeal of the Religious Freedom Restoration Act. You can argue that someone's desire or need for free contraceptives (the mandate makes no distinction between the two) trumps someone's else's sincere moral convictions about the sanctity of human life and what it means to be complicit in what he or she believes to be an immoral act. But don't pretend that you aren't the one imposing your moral presuppositions on someone else. The fact that you think you are right makes you no less an authoritarian.

The decision is not misogynistic - "stunning" or otherwise. ("Regressive" is just an epithet meaning "I don't like it.") I understand that control over reproduction is critical for women. (It's actually pretty critical for men too; but there certainly is a difference.) But that doesn't permit us to dismiss the associated moral and religious questions. It doesn't mean that all methods of control are acceptable or need to be financially supported by everyone.

Hobby Lobby objected to four of twenty covered drugs that they believe to be abortifacients, i.e., drugs that its owners believe ends a life that has already begun. I had not thought that we had gotten to the point where opposition to abortion - or an unwillingness to pay for it - can be dismissed as misogynistic. That will certainly come as a surprise to the women who dominate the pro-life movement.