This is the story: Millennials don't like suburbs. They want to live in the city. Millennials don't like cars. They prefer transit. We should embrace the future and quit spending so much on roads. We should, instead, spend more on urban mass transit including projects such a streetcars that, on their face, seem indefensible.
But the story may be wrong. Over at Right Wisconsin, I write about some recent work that changes the story. Millennials like the suburbs. In fact, more of them are leaving the city than our moving in. While the relatively small cohort that is college educated may be more likely to reside in the city than previous generations, it is unclear whether this is a long term preference or an artifact of delayed marriages and family formation.
I find this completely unsurprising. Whenever someone suggests that human beings are about to radically change their behavior, there is a substantial probability that the claim is wrong. We Baby Boomers were so unique that, with Joni Mitchell, we believed our enthusiasms were not just the "time of the year" but the "time of man."
As it turned out, not so much.
Cross posted at Purple Wisconsin.
Tuesday, April 21, 2015
Monday, April 20, 2015
Of discrimination, indoctrination and school choice
Writing in the Journal Sentinel, Barbara Miner says that private schools participating in the choice program can "ignore" Wisconsin laws prohibiting discrimination. She then goes on to bemoan the fact that her tax dollars are being used to indoctrinate children in ways that do not meet her approval.
She makes clear that her concern is about Catholic and more traditional religious schools, singling out schools that might teach that " homosexuality is wrong, sex outside of marriage is a sin and artificial birth control is contrary to the law of God." In a jaw dropping statement, she suggests that, in her youth, the Catholic Church was more concerned about social justice than human sexuality. Ms. Miner is older than I am, but I went to Catholic school long enough ago to have attended the Tridentine Mass. I am pretty sure that there was not some "golden era" where the Church was "cool" about premarital sex, sexual orientation and abortion or contraception. In fact, based on my son's experience in Catholic school, I'd guess that sexual matters are less emphasized today that when Sister Maria Immaculata was in charge
In any event, Miner is wrong about the reach of anti-discrimination laws. While there are certainly laws addressing discrimination that do not apply to private schools, there are specific prohibitions of discrimination that apply to the voucher program. Schools cannot discriminate in the selection of students. As to those voucher students attending private religious schools, state law expressly provides that these schools "may not require [a voucher student] to participate in any religious activity" if his or her parent or guardian requests in writing that they be exempt. Sec. 118.60(7)(c); 119.60(7)(c)
To be sure, religious schools may teach willing students things that Ms. Miner thinks are wrong. But, every day, public schools teach children things that religious traditionalists believe to be wrong. Absolute neutrality is simply impossible and "public policy" in a diverse society ought to focus on respecting different points of view rather than enforcing orthodoxy.
Miner is wrong about one more thing. She says that test scores for students participating in the voucher program are "no better" than for children attending public schools. When properly evaluated, this is not true. But even on the flawed measure that Miner is using (comparing an annual snapshot of average WKCE stores among schools), a recent report by the Wisconsin Institute for Law & Liberty found that the test scores for voucher students in Catholic and Lutheran schools (many of which are run by the conservative Wisconsin and Missouri synods) are higher than those for comparable student populations in Milwaukee. In other words, the very religious schools that Miner objects to seem to do a very good job of educating poor children.
Cross posted at Purple Wisconsin
She makes clear that her concern is about Catholic and more traditional religious schools, singling out schools that might teach that " homosexuality is wrong, sex outside of marriage is a sin and artificial birth control is contrary to the law of God." In a jaw dropping statement, she suggests that, in her youth, the Catholic Church was more concerned about social justice than human sexuality. Ms. Miner is older than I am, but I went to Catholic school long enough ago to have attended the Tridentine Mass. I am pretty sure that there was not some "golden era" where the Church was "cool" about premarital sex, sexual orientation and abortion or contraception. In fact, based on my son's experience in Catholic school, I'd guess that sexual matters are less emphasized today that when Sister Maria Immaculata was in charge
In any event, Miner is wrong about the reach of anti-discrimination laws. While there are certainly laws addressing discrimination that do not apply to private schools, there are specific prohibitions of discrimination that apply to the voucher program. Schools cannot discriminate in the selection of students. As to those voucher students attending private religious schools, state law expressly provides that these schools "may not require [a voucher student] to participate in any religious activity" if his or her parent or guardian requests in writing that they be exempt. Sec. 118.60(7)(c); 119.60(7)(c)
To be sure, religious schools may teach willing students things that Ms. Miner thinks are wrong. But, every day, public schools teach children things that religious traditionalists believe to be wrong. Absolute neutrality is simply impossible and "public policy" in a diverse society ought to focus on respecting different points of view rather than enforcing orthodoxy.
Miner is wrong about one more thing. She says that test scores for students participating in the voucher program are "no better" than for children attending public schools. When properly evaluated, this is not true. But even on the flawed measure that Miner is using (comparing an annual snapshot of average WKCE stores among schools), a recent report by the Wisconsin Institute for Law & Liberty found that the test scores for voucher students in Catholic and Lutheran schools (many of which are run by the conservative Wisconsin and Missouri synods) are higher than those for comparable student populations in Milwaukee. In other words, the very religious schools that Miner objects to seem to do a very good job of educating poor children.
Cross posted at Purple Wisconsin
S
Sunday, April 12, 2015
Acting Anew?
In the Milwaukee Journal Sentinel, Todd Robert Murphy writes that America is divided. He believes that we must act "anew" although he does not explain what that means. In this space, I recently wrote about tolerating speech with which we disagree. I do not suggest that we all need to agree, but it would help if we didn't automatically assume that the other guy is a bastard.
Murphy refers to the reaction to police shootings in which the victim is black and the officer is not. I have been astonished at the extent to which the facts don't matter in the aftermath of these events. Otherwise intelligent people claim that there is some kind of "open season" on black males when the statistics simply don't support that. In fact, they suggest the opposite. People who ought to know better hang on to narratives - "hands up, don't shoot" - long after they have been discredited.
This is an odd thing. There are reasons to be concerned about the police that have nothing to do with race. Giving people guns and exposing them to people at their worst can lead to bad things. (This is why police cameras are probably a good idea.) But it should not be hard for any of us to understand that each of these cases is different and that guilt and innocence depends on the facts and not which narrative - racist cop or young thug - feels right to us. Perhaps this is one way that we might "act anew."
We often hear calls for a dialogue about race - generally from people who want anything but that. A dialogue is not a lecture. It is not limited to confession and the prescription of penance. a conversation about race would certainly be uncomfortable, but that discomfort would be shared all round.
Roger Clegg wanted to have a dialogue about race. Roger is General Counsel of the Center for Equal Opportunity. He is fiercely intelligent but gentle-mannered; one of the nicer people I know. CEO had done a study that demonstrated just how strongly the University of Wisconsin prefers African-American applicants over similarly situated whites, Asians and even Hispanics. (The preference still doesn't result in a large black enrollment at Madison.) When he came to Madison to discuss the report, he was accosted by screaming hordes whose idea of a dialogue is shouting over what you don't want to hear.
Maybe being willing to listen to what we don't want to hear - even when, in the end, we think it is wrong - is another way that we might "act anew."
A large part of our intelligentsia has come to believe that traditional Christian, Jewish and Islamic views on human sexuality are not only wrong, but manifestations of hate. Those who hold them are bigots or psychologically maladjusted ("phobic") and must not be permitted to act on - or even to express - their views without legal sanction (for the former) and social ostracism (for the latter). They believe, like the Medieval Church, that error has no rights.
On the merits, I am closer to the new received wisdom than I am to the religious traditionalists. But it strikes me as arrogant to dismiss the latter as bigots and inconsistent with the very idea of a free society to deny them a space to live in accordance with their consciences. (Analogies to race are, I think, inappropriate but that's a subject for another day.)
Perhaps finding more room to tolerate not what only those people we believe have been historically ostracized, but those we believe to be wrong is another way to "act anew."
Cross posted at Purple Wisconsin
Murphy refers to the reaction to police shootings in which the victim is black and the officer is not. I have been astonished at the extent to which the facts don't matter in the aftermath of these events. Otherwise intelligent people claim that there is some kind of "open season" on black males when the statistics simply don't support that. In fact, they suggest the opposite. People who ought to know better hang on to narratives - "hands up, don't shoot" - long after they have been discredited.
This is an odd thing. There are reasons to be concerned about the police that have nothing to do with race. Giving people guns and exposing them to people at their worst can lead to bad things. (This is why police cameras are probably a good idea.) But it should not be hard for any of us to understand that each of these cases is different and that guilt and innocence depends on the facts and not which narrative - racist cop or young thug - feels right to us. Perhaps this is one way that we might "act anew."
We often hear calls for a dialogue about race - generally from people who want anything but that. A dialogue is not a lecture. It is not limited to confession and the prescription of penance. a conversation about race would certainly be uncomfortable, but that discomfort would be shared all round.
Roger Clegg wanted to have a dialogue about race. Roger is General Counsel of the Center for Equal Opportunity. He is fiercely intelligent but gentle-mannered; one of the nicer people I know. CEO had done a study that demonstrated just how strongly the University of Wisconsin prefers African-American applicants over similarly situated whites, Asians and even Hispanics. (The preference still doesn't result in a large black enrollment at Madison.) When he came to Madison to discuss the report, he was accosted by screaming hordes whose idea of a dialogue is shouting over what you don't want to hear.
Maybe being willing to listen to what we don't want to hear - even when, in the end, we think it is wrong - is another way that we might "act anew."
A large part of our intelligentsia has come to believe that traditional Christian, Jewish and Islamic views on human sexuality are not only wrong, but manifestations of hate. Those who hold them are bigots or psychologically maladjusted ("phobic") and must not be permitted to act on - or even to express - their views without legal sanction (for the former) and social ostracism (for the latter). They believe, like the Medieval Church, that error has no rights.
On the merits, I am closer to the new received wisdom than I am to the religious traditionalists. But it strikes me as arrogant to dismiss the latter as bigots and inconsistent with the very idea of a free society to deny them a space to live in accordance with their consciences. (Analogies to race are, I think, inappropriate but that's a subject for another day.)
Perhaps finding more room to tolerate not what only those people we believe have been historically ostracized, but those we believe to be wrong is another way to "act anew."
Cross posted at Purple Wisconsin
Friday, April 10, 2015
Will the lawsuit against the Chief Justice amendment succeed?
At Right Wisconsin, I have a preliminary analysis of Chief Justice Shirley Abrahamson's attempt to block the change to the manner in which the Chief Justice of our Supreme Court is selected. There are multiple claims but I think it helps to see them as falling into two categories.
First, she argues about what the amendment means. She claims that it does not apply until her current term expires. To make it apply now, she says, would be a "retroactive" application. There is a presumption against retroactive application of new laws (that's true) and the amendment, she argues, does not clearly say that it applies immediately. She even goes so far to suggest that voters "were not told" and "did not understand" that it might displace her as Chief Justice before the expiration of her current term.
This argument is beset with problems. First, the amendment does not operate "retroactively." It goes into effect on the day that the election results are certified and changes designation of the Chief Justice from that day forward, i.e., it operates prospectively. Normally, we thing of a retroactive law as one that imposes new consequences for past behavior or that disturbs vested rights or relationships. (More on that later.) It does not mean that one has the right to believe that the law will not change for some given period of time.
In fact, if application of the amendment to the incumbent Chief Justice is "retroactive," it is unclear why it would no longer be so once the incumbent's current term expires. If a prospective application requires the existence of a vacancy in the office of the Chief Justice, there will be none until the incumbent either relinquishes the office or leaves the Court. In other words, the argument proves too much.
Second, while there is a presumption against retroactive laws, there is no per se prohibition of retroactivity. (Retroactive application can cause other problems but we'll get to that.) It seems clear that the law was intended to change selection of the Chief Justice immediately. There is no "grandparent" provision. The legislature declined to insert one. The selection method is not conditioned upon a vacancy or the completion of a term; it requires a new selection every two years.
It is simply not true that "no one thought" that the amendment could displace the current Chief Justice. In fact, voters were repeatedly told not only that it would do so, but that this was its sole purpose. Proponents of the amendment denied the latter, but not the former.
In any event, I wonder if the federal court will want to reach this question. The ultimate authority on the meaning of the amendment resides with state courts. While federal courts can address state law questions when that is necessary to resolve federal claims, they often, under certain circumstances, defer to state courts to first construe the state law in question. That could happen here in two difference ways. If someone were to file a state court action raising the issue, the federal court might choose to abstain. Alternatively, the federal court might request the Wisconsin Supreme Court to construe the amendment. While this might be awkward for the Supreme Court, it is not impermissible.
There is a third possibility. The federal court might find the federal claim - a constitutional challenge that we have not yet discussed - to be wholly without merit. In fact, it should do so - the claim is close to frivolous. If it dismisses that claim, it should probably dismiss the request to decide whether the law applies during Chief Justice Abrahamson's current term. That is a state law question over which federal courts have no jurisdiction. While there is a concept called supplementary jurisdiction that sometimes permits such claims to be heard, this does not seem like a good case for its application.
So what about that constitutional challenge? The complaint alleges that, if the amendment applies during Chief Justice Abrahamson's current term, it violates the federal constitution. The principal argument is that the Chief Justice has a property interest in being the Chief Justice which is being deprived without due process. But there are some old U.S. Supreme Court cases that say that an elected official, unlike other public employees, has no property interest in his or her office.
If you argue that these cases are outdated or establish only a "default" rule, controlling doctrine makes clear that you must identify a state law source for the claim that the Chief Justice has an entitlement to her position. She can't do that. Nothing in Wisconsin law ever created such an entitlement (a fixed term of office does not do that). Moreover, state law - indeed the state Constitution - was just amended to make clear that there is no such entitlement. A duly enacted constitutional amendment is not a due process violation.
The complaint goes on to argue that the voters who elected her in 2009 were denied due process and equal protection of the law because their election of her "as Chief Justice" has been frustrated. It is, of course, a complete fiction that she was elected "as" Chief Justice. She simply stood for election to the Court. We don't elect the Chief Justice in Wisconsin. That voters knew she was Chief Justice and would remain so unless the law changed is not the same as electing her to that position. It is true that she ran aggrandizing ads referring to herself as "Wisconsin' Chief," but the purpose of those was to elevate her over her opponent, not to ask voters whether she should continue in that role as well as remain on the Court. No voter has ever elected her - as opposed to her colleagues - to be Chief Justice. No voter in 2009 had the option to retain her on the Court but displace her as the Chief.
But even were that not so, the "frustration" of the voters decision in 2009 is a product of a decision in 2015 by … the voters. We would not have thought that the folks who voted for Scott Walker in 2010 would have been denied due process and equal protection if he was recalled in 2012. While recall statutes existed in 2010, so did the process for amending the Constitution.
It is simply not the case that, once voters elect someone, the accoutrements and responsibilities of that office - or even the term of office - cannot be changed until completion of the term. This is particularly true when the change is accomplished by the voters themselves by amending the state's highest law, its Constitution.
Cross posted at Purple Wisconsin
First, she argues about what the amendment means. She claims that it does not apply until her current term expires. To make it apply now, she says, would be a "retroactive" application. There is a presumption against retroactive application of new laws (that's true) and the amendment, she argues, does not clearly say that it applies immediately. She even goes so far to suggest that voters "were not told" and "did not understand" that it might displace her as Chief Justice before the expiration of her current term.
This argument is beset with problems. First, the amendment does not operate "retroactively." It goes into effect on the day that the election results are certified and changes designation of the Chief Justice from that day forward, i.e., it operates prospectively. Normally, we thing of a retroactive law as one that imposes new consequences for past behavior or that disturbs vested rights or relationships. (More on that later.) It does not mean that one has the right to believe that the law will not change for some given period of time.
In fact, if application of the amendment to the incumbent Chief Justice is "retroactive," it is unclear why it would no longer be so once the incumbent's current term expires. If a prospective application requires the existence of a vacancy in the office of the Chief Justice, there will be none until the incumbent either relinquishes the office or leaves the Court. In other words, the argument proves too much.
Second, while there is a presumption against retroactive laws, there is no per se prohibition of retroactivity. (Retroactive application can cause other problems but we'll get to that.) It seems clear that the law was intended to change selection of the Chief Justice immediately. There is no "grandparent" provision. The legislature declined to insert one. The selection method is not conditioned upon a vacancy or the completion of a term; it requires a new selection every two years.
It is simply not true that "no one thought" that the amendment could displace the current Chief Justice. In fact, voters were repeatedly told not only that it would do so, but that this was its sole purpose. Proponents of the amendment denied the latter, but not the former.
In any event, I wonder if the federal court will want to reach this question. The ultimate authority on the meaning of the amendment resides with state courts. While federal courts can address state law questions when that is necessary to resolve federal claims, they often, under certain circumstances, defer to state courts to first construe the state law in question. That could happen here in two difference ways. If someone were to file a state court action raising the issue, the federal court might choose to abstain. Alternatively, the federal court might request the Wisconsin Supreme Court to construe the amendment. While this might be awkward for the Supreme Court, it is not impermissible.
There is a third possibility. The federal court might find the federal claim - a constitutional challenge that we have not yet discussed - to be wholly without merit. In fact, it should do so - the claim is close to frivolous. If it dismisses that claim, it should probably dismiss the request to decide whether the law applies during Chief Justice Abrahamson's current term. That is a state law question over which federal courts have no jurisdiction. While there is a concept called supplementary jurisdiction that sometimes permits such claims to be heard, this does not seem like a good case for its application.
So what about that constitutional challenge? The complaint alleges that, if the amendment applies during Chief Justice Abrahamson's current term, it violates the federal constitution. The principal argument is that the Chief Justice has a property interest in being the Chief Justice which is being deprived without due process. But there are some old U.S. Supreme Court cases that say that an elected official, unlike other public employees, has no property interest in his or her office.
If you argue that these cases are outdated or establish only a "default" rule, controlling doctrine makes clear that you must identify a state law source for the claim that the Chief Justice has an entitlement to her position. She can't do that. Nothing in Wisconsin law ever created such an entitlement (a fixed term of office does not do that). Moreover, state law - indeed the state Constitution - was just amended to make clear that there is no such entitlement. A duly enacted constitutional amendment is not a due process violation.
The complaint goes on to argue that the voters who elected her in 2009 were denied due process and equal protection of the law because their election of her "as Chief Justice" has been frustrated. It is, of course, a complete fiction that she was elected "as" Chief Justice. She simply stood for election to the Court. We don't elect the Chief Justice in Wisconsin. That voters knew she was Chief Justice and would remain so unless the law changed is not the same as electing her to that position. It is true that she ran aggrandizing ads referring to herself as "Wisconsin' Chief," but the purpose of those was to elevate her over her opponent, not to ask voters whether she should continue in that role as well as remain on the Court. No voter has ever elected her - as opposed to her colleagues - to be Chief Justice. No voter in 2009 had the option to retain her on the Court but displace her as the Chief.
But even were that not so, the "frustration" of the voters decision in 2009 is a product of a decision in 2015 by … the voters. We would not have thought that the folks who voted for Scott Walker in 2010 would have been denied due process and equal protection if he was recalled in 2012. While recall statutes existed in 2010, so did the process for amending the Constitution.
It is simply not the case that, once voters elect someone, the accoutrements and responsibilities of that office - or even the term of office - cannot be changed until completion of the term. This is particularly true when the change is accomplished by the voters themselves by amending the state's highest law, its Constitution.
Cross posted at Purple Wisconsin
Thursday, April 09, 2015
Free speech is OK for everyone
Emily Mills writes about one response to Purple Wisconsin blogger Claire Van Fossen's call for an end to the police and her "resolution" not to call the police when she is "in a jam." It should surprise no one that the post was met with strong and widespread criticism and even derision.
Those responses should have been directed at what she wrote and not at her. But the comment sections on blogs are cesspools. Someone apparently thought it clever to suggest that Van Fossen might safely be sexually assaulted since she wouldn't call the cops. While it probably wasn't intended as a threat, that type of personal attack is disgusting. Ms. Mills' point is that women are often met with misogynistic responses to their arguments.
I want to get beyond that, but it would be wrong not to acknowledge that she has a point. While I wouldn't say its common, I've heard men express anger at or disagreement with a woman in misogynistic ways before and it has always struck me as creepy. Putting aside considerations of gender fairness (which I do not discount), I am old enough to remember when young men were taught that a gentleman did not do things like that. More fundamentally, there is something dehumanizing about it. As Mills points out, it's quite OK to disagree sharply with a woman but there is no need to treat her like some lesser form of being.
I wish it were a more isolated phenomenon. But Judge Rebecca Bradley was subjected to crude and dismissive innuendo when she had the gall to stand for election as Governor Scott Walker's appointee to the Circuit Court. There were misogynistic attacks on Lt. Gov. Rebecca Kleefisch and Vice Presidential candidate Sarah Palin. Outspoken conservative women are regularly accosted with the "c" word. It is quite OK to disagree sharply with conservative women, but there is no need to treat them like some lesser form of being.
I don't mention this to claim equal time for my side in the victim sweepstakes but to pose a question. My guess is that the people who attack conservative women in this way would otherwise regard themselves as "feminists" or "pro-women." I suspect that in some ways they are. So what moves them to turn into Tucker Max whenever a woman doesn't think like she's supposed to?
The answer may be that their animus is not based on gender. Gender is simply the way in which it is expressed. Attackers try to find the most hurtful thing they can say. That can take the form of racial or gender based insults, but it can also take other forms. The problem of civility in public discourse involves a lot more than hatred calibrated in the categories recognized by the political left.
For example, during the last Presidential cycle, the Vice President of the United States likened Republicans to slaveholders. Another Vice President, Al Gore, not too subtly hinted that opponents of affirmative action intend for blacks what hunters wish for ducks. Last week, a pizza parlor in Indiana was subjected to vile threats for holding retrograde views on same sex marriage. What's going on?
Jonah Goldberg recently wrote about Francis Fukuyama's coining of the term "megalothymia"- the compulsive need to feel superior to others:
And boy howdy, do we have a problem with megalothymia in America today. Everywhere you look there are moral bullies utterly uninterested in conversation, introspection, or persuasion who are instead hell-bent on grinding down people they don’t like to make themselves feel good. If you took the megalothymia out of Twitter, millions of trolls would throw their smartphones into the ocean.
What can be done about this? Nothing. Even the suggestion that the government police discourse ought to be off the table. But if much of what we see as hatred is motivated by megalothymia - by the rapture of holding oneself righteous - then it may be susceptible to self correction.
I find that in most cases - and this includes the Van Fossen post - the position taken by people I disagree with are based on explicable premises (even if I think they are wrong) and an articulable logic (even if I believe it doesn't bear scrutiny). In other words, they are sincere and there is a reason they say what they do. That reason can rarely be reduced to corruption, hatred, bigotry, insanity, etc.
I don't claim that I always succeed in this, but you ought to try to understand the other side as they understand themselves. You'll probably still disagree with them. You may even disagree sharply. You might still respond with sarcasm and strong language. But you will be far less likely to make that disagreement personal and far less likely to regard your interlocutor as an awful human being. You might pause before you liken them to slaveowners, Nazis, traitors or terrorists. It will be less likely that your argument includes references to rape or suggestions that someone be killed and the fruits of their ill-gotten white privilege liberated.
I am not suggesting that we can all just get along. Political differences are important and I don't think they can be minimized through some magical "third way" or "evidence-based" approaches. What I am saying is that we live in America in 2015 and not in Germany in 1933. Our political differences, thank God, generally do not involve or require hatred.
Cross posted at Purple Wisconsin
Wednesday, April 01, 2015
Mayor Barrett, Indiana followed Wisconsin's example
In yesterday's Milwaukee Journal Sentinel, Mayor Tom Barrett criticized Indiana's new religious freedom law, claiming that it sides with religious extremists and imposes a particular religion on the rest of us. He says that Indiana's law is a bad example and Wisconsin should not follow it.
Too late, Mr. Mayor. As I wrote on Right Wisconsin yesterday, Wisconsin's constitution has been interpreted to provide the same protection to religious freedom as the law just passed by Indiana. In Wisconsin, just as in Indiana, the state may not enact laws which substantially burden a person's religious freedom unless it can show that imposing this burden is necessary to achieve a compelling state interest. (A map showing which states provide this protection can be found here. It looks like 27 states provide this form of "extremist" and "inhospitable" protection for religious dissenters. Only five clearly do not.)
It turns out that the Mayor needn't worry about Wisconsin following Indiana's example. It was Indiana that followed ours.
There are a few other things that might surprise the Mayor. First, the 1996 state supreme court decision that adopted this "extreme" protection for religious freedom was unanimous. It was written by former Justice Janine Geske and joined by Chief Justice Shirley Abrahamson and Ann Walsh Bradley. You can't blame "the conservatives" for this one.
Second, it jumps the gun to say, as the Mayor does, that Indiana's law (or Wisconsin's constitution) means that a baker or florist can refuse to provide goods or service to a same-sex wedding. A court would have to decide whether, in the particular circumstances, the state has a compelling interest in applying its anti-discrimination law to a religious objector. The answer to that question may vary from business to business. For example, the claim of a large business providing goods or services unrelated to marriage or sexuality (think Chik-fil-a or WalMart) may be outweighed by the state's interest in making certain public accommodations available to all. The claim of a wedding photographer who does not wish to involve herself in a ceremony that she feels endangers the immortal souls of all involved may not be.
The one thing that we can say based on experience with states who provide heightened protection for religious freedom is that such claims are rarely made.
I am aware that some people have tried to argue that Indiana's law is somehow different from the similar protection provided to religious freedom by the federal government and twenty-x states. The arguments fail. As the Supreme Court recognized with respect to federal law in last term's Hobby Lobby decision, a religious objector - or group of objectors - engaged in a for profit or business or operating in the corporate form do not forfeit their religious liberty.
Nor is it surprising that the protection of religious liberty might apply to private parties seeking to enforce a government law. Indeed, that's precisely how protections of constitutional or statutory liberty normally work. Imagine, for example, that Wisconsin passed a law permitting "wrongful death" actions by private parties (say the father of the aborted child) against women who exercise their constitutional freedom to choose an abortion. Under commonly accepted doctrine, a woman facing such a suit would be able to present a constitutional defense,
Of course, even though he did not do his homework, it is open to Mayor Barrett or anyone else to argue that Wisconsin, as well as Indiana, has got it wrong - that religious dissenters - even Mom and Pop bakers and florists - should be forced to act contrary to their religious conscience and that no special regard for their religious liberty claim ought to be part of the law.
But before you conclude this is so, read this column by New York Times columnist Ross Douthat. The answer is not a simple matter of respecting "rights" or prohibiting discrimination. (There are rights and discrimination claims on both sides of the question.) The question is not answered by whether or not you agree with religious objections to homosexuality or same-sex marriage. (While I have opposed legal recognition of same-sex marriage on secular grounds, I do not have religious or moral objections to either.) Majority religious beliefs are unlikely to be subject to legal burden, so protections of religious liberty are always going to apply to beliefs that the majority does not share. It can't be resolved by facile comparisons to race. Race is unique in American history.
You have to ask yourself whether the idea of freedom in our country is large enough to permit dissent on the question of human sexuality. Is it really necessary to extirpate all remnants of traditional religious viewpoints? Slogans and catch phrases won't accomplish the heavy lifting required to answer those questions.
Cross posted at Purple Wisconsin.
Too late, Mr. Mayor. As I wrote on Right Wisconsin yesterday, Wisconsin's constitution has been interpreted to provide the same protection to religious freedom as the law just passed by Indiana. In Wisconsin, just as in Indiana, the state may not enact laws which substantially burden a person's religious freedom unless it can show that imposing this burden is necessary to achieve a compelling state interest. (A map showing which states provide this protection can be found here. It looks like 27 states provide this form of "extremist" and "inhospitable" protection for religious dissenters. Only five clearly do not.)
It turns out that the Mayor needn't worry about Wisconsin following Indiana's example. It was Indiana that followed ours.
There are a few other things that might surprise the Mayor. First, the 1996 state supreme court decision that adopted this "extreme" protection for religious freedom was unanimous. It was written by former Justice Janine Geske and joined by Chief Justice Shirley Abrahamson and Ann Walsh Bradley. You can't blame "the conservatives" for this one.
Second, it jumps the gun to say, as the Mayor does, that Indiana's law (or Wisconsin's constitution) means that a baker or florist can refuse to provide goods or service to a same-sex wedding. A court would have to decide whether, in the particular circumstances, the state has a compelling interest in applying its anti-discrimination law to a religious objector. The answer to that question may vary from business to business. For example, the claim of a large business providing goods or services unrelated to marriage or sexuality (think Chik-fil-a or WalMart) may be outweighed by the state's interest in making certain public accommodations available to all. The claim of a wedding photographer who does not wish to involve herself in a ceremony that she feels endangers the immortal souls of all involved may not be.
The one thing that we can say based on experience with states who provide heightened protection for religious freedom is that such claims are rarely made.
I am aware that some people have tried to argue that Indiana's law is somehow different from the similar protection provided to religious freedom by the federal government and twenty-x states. The arguments fail. As the Supreme Court recognized with respect to federal law in last term's Hobby Lobby decision, a religious objector - or group of objectors - engaged in a for profit or business or operating in the corporate form do not forfeit their religious liberty.
Nor is it surprising that the protection of religious liberty might apply to private parties seeking to enforce a government law. Indeed, that's precisely how protections of constitutional or statutory liberty normally work. Imagine, for example, that Wisconsin passed a law permitting "wrongful death" actions by private parties (say the father of the aborted child) against women who exercise their constitutional freedom to choose an abortion. Under commonly accepted doctrine, a woman facing such a suit would be able to present a constitutional defense,
Of course, even though he did not do his homework, it is open to Mayor Barrett or anyone else to argue that Wisconsin, as well as Indiana, has got it wrong - that religious dissenters - even Mom and Pop bakers and florists - should be forced to act contrary to their religious conscience and that no special regard for their religious liberty claim ought to be part of the law.
But before you conclude this is so, read this column by New York Times columnist Ross Douthat. The answer is not a simple matter of respecting "rights" or prohibiting discrimination. (There are rights and discrimination claims on both sides of the question.) The question is not answered by whether or not you agree with religious objections to homosexuality or same-sex marriage. (While I have opposed legal recognition of same-sex marriage on secular grounds, I do not have religious or moral objections to either.) Majority religious beliefs are unlikely to be subject to legal burden, so protections of religious liberty are always going to apply to beliefs that the majority does not share. It can't be resolved by facile comparisons to race. Race is unique in American history.
You have to ask yourself whether the idea of freedom in our country is large enough to permit dissent on the question of human sexuality. Is it really necessary to extirpate all remnants of traditional religious viewpoints? Slogans and catch phrases won't accomplish the heavy lifting required to answer those questions.
Cross posted at Purple Wisconsin.
Thursday, March 26, 2015
Yeah, actually no, the Handmaid's Tale is not like the real world
While I was reading the Journal Sentinel earlier this week, I came upon an astonishing sentence. In reviewing a local production of a theatrical adaption of Margaret Atwood's novel, The Handmaid's Tale, Mike Fischer (who is, I hasten to add, not the Mike Fischer who works with me) writes that the play begins with a series of images "making clear that this dystopian look at the future also bears a stark resemblance to the way we live now."
Really?
I don't know if the reviewer is asserting his own view or describing the stance of the production, but Atwood's "dystopian look" at an imagined future conjures a militaristic theocracy in which most women lose all of their rights and are forbidden to read. Some women are ceremoniously raped to produce children.
I understand that the term "stark resemblance" is one of those clichés that people toss about without thinking about the precise meaning. But a "stark" resemblance is one that is "plain," "obvious" and "clear." Whatever one may think about feminism and its progress, the way we "live now" bears virtually no resemblance to Atwood's dystopia. If it does, someone better break out the rifles.
Cross posted at Purple Wisconsin
Really?
I don't know if the reviewer is asserting his own view or describing the stance of the production, but Atwood's "dystopian look" at an imagined future conjures a militaristic theocracy in which most women lose all of their rights and are forbidden to read. Some women are ceremoniously raped to produce children.
I understand that the term "stark resemblance" is one of those clichés that people toss about without thinking about the precise meaning. But a "stark" resemblance is one that is "plain," "obvious" and "clear." Whatever one may think about feminism and its progress, the way we "live now" bears virtually no resemblance to Atwood's dystopia. If it does, someone better break out the rifles.
Cross posted at Purple Wisconsin
Thursday, March 19, 2015
Pocan walks into it
Politicians love to cherry pick statistics. Sometimes this leads to inadvertent little treasures. Recently, Rep. Mark Pocan went on public radio to criticize the passage of a right-to-work laws in Wisconsin. He took a shot at Governor Walker saying that, in a recent one year period, Wisconsin was "dead last" in the Midwest in job creation. The Journal Sentinel's Politifact writer gave it a "mostly true" rating. For a variety of reasons, I believe that's too high and, in any event, I don't think the comparison is very meaningful. What the numbers really show is North Dakota and Michigan doing better than a tightly bunched group of seven states.
But there was something else interesting about it.
The "top four" states by Pocan's measure were right to work states.
Were Pocan testifying at a trial, the opposing lawyers would be telling the story of the ensuing cross-examination for the rest of their lives. It would be something like Ndamukong Suh bearing down on Jay Cutler from the blind sight. Whatever happened next would not be pretty.
Of course, this doesn't "prove" that right to work contributes to job growth and, yes, I know that three of the bottom six were also right to work states. (Remember, Wisconsin was not a right-to-work state for the period in question.) But Pocan winds up being hoisted on his own ill-chosen petard.
Cross posted at Purple Wisconsin
But there was something else interesting about it.
The "top four" states by Pocan's measure were right to work states.
Were Pocan testifying at a trial, the opposing lawyers would be telling the story of the ensuing cross-examination for the rest of their lives. It would be something like Ndamukong Suh bearing down on Jay Cutler from the blind sight. Whatever happened next would not be pretty.
Of course, this doesn't "prove" that right to work contributes to job growth and, yes, I know that three of the bottom six were also right to work states. (Remember, Wisconsin was not a right-to-work state for the period in question.) But Pocan winds up being hoisted on his own ill-chosen petard.
Cross posted at Purple Wisconsin
Wednesday, March 04, 2015
Lack of candor comes in many forms
Another observation about last week's hearing on right to work. There was a false narrative about disinterest being pushed by the opponents of right to work, almost laughably portrayed by Gordon Lafer, who identified himself as an economics professor at the University of Oregon. Professor Lafer began with a show of how no one had paid him and he is an academic who goes where the evidence leads him. I am sure that he believes that and tries to conduct himself accordingly.
But no one paid me to be there either and I am a public interest lawyer and legal scholar who goes where the evidence leads me. I truly believe that and try to conduct myself accordingly.
But it takes incredible chutzpah for Professor Lafer to castigate others as ideological or interested, as he did in this op-ed criticizing a study on right to work by the Wisconsin Policy Research Institute. He is also a research associate at the left wing Economic Policy Institute. It receives funding from unions. It is every bit as "ideological" as WPRI.
What I will admit - and Professor Lafer apparently will not - is that, in a career that, like his, is now in its fourth decade, I think I've learned some things about the world and have some notions about how it works. In my case, this has lead to a libertarian conservative perspective. He has come to see things differently. But both of us would be fooling ourselves and misleading others if we denied having a perspective from which we've come to approach things.
This doesn't mean that I - and, I hope, Professor Lafer - will say anything or do bad work. I try very hard not to. If a particular legal argument won't work, I don't make it. WILL's research reports aspire to be accurate and thorough. None of us are free of confirmation bias and we all make mistakes, we try to do good work.
Senators Wirch and Larson made a show of pointing out that certain of the witnesses in favor of Right to Work did - or have - received funding from the Lynde and Harry Bradley Foundation. Given the scope of Bradley's activities, all this means is that the speakers are active in the libertarian and conservative policy world. In other words, all it establishes is that they have a perspective that I, for one, am perfect willing to admit.
The ultimate irony, of course, is that Senator Wirch and Larson and the Democrats benefit substantially from coerced support of labor unions. They should be careful about asking cui bono (who benefits) lest some one hold up a mirror.
Cross posted at Purple Wisconsin
But no one paid me to be there either and I am a public interest lawyer and legal scholar who goes where the evidence leads me. I truly believe that and try to conduct myself accordingly.
What I will admit - and Professor Lafer apparently will not - is that, in a career that, like his, is now in its fourth decade, I think I've learned some things about the world and have some notions about how it works. In my case, this has lead to a libertarian conservative perspective. He has come to see things differently. But both of us would be fooling ourselves and misleading others if we denied having a perspective from which we've come to approach things.
This doesn't mean that I - and, I hope, Professor Lafer - will say anything or do bad work. I try very hard not to. If a particular legal argument won't work, I don't make it. WILL's research reports aspire to be accurate and thorough. None of us are free of confirmation bias and we all make mistakes, we try to do good work.
Senators Wirch and Larson made a show of pointing out that certain of the witnesses in favor of Right to Work did - or have - received funding from the Lynde and Harry Bradley Foundation. Given the scope of Bradley's activities, all this means is that the speakers are active in the libertarian and conservative policy world. In other words, all it establishes is that they have a perspective that I, for one, am perfect willing to admit.
The ultimate irony, of course, is that Senator Wirch and Larson and the Democrats benefit substantially from coerced support of labor unions. They should be careful about asking cui bono (who benefits) lest some one hold up a mirror.
Cross posted at Purple Wisconsin
Tuesday, March 03, 2015
Right to work and free markets
Last week, I was one of several invited witnesses at the Senate hearing on proposed right to work legislation. I made two points, One was that no legal challenge to the proposed legislation was likely to invalidate it. There is a minor preemption issue regarding the notice period for revocation of a consent to have dues deducted, but Wisconsin can have right to work if the legislature and the Governor so decide. No court will block it. I'm not sure anyone really disagrees with that.
The second was to correct the mischaracterization of the legal nature of collective bargaining agreements and what right to work actually does. As I wrote at Right Wisconsin, opponents typically argue that right to work interferes with a private and voluntary contractual arrangement to give some employees a "right to freeload."
But a collective bargaining agreement is normally not free of legal compulsion and regulatory interference. The government forces employers to recognize a union supported by a majority of employees and requires it to negotiate on all mandatory subjects of bargaining. In the absence of legal interference, none of that would be required.
Moreover, because the union can choose to be an exclusive representative (some people argue that it must do so) the law forbids employers from negotiating with anyone other than the union and forces all employees - even those who never wanted a union or who do not like the demands it made or contract it negotiated - to abide by its terms. This too is anything but a voluntary, free market arrangement.
In short, the government is all over collective bargaining. It creates it through a series of legal compulsions and restrictions. To say that right to work interferes with freedom of contract ignores all of that.
Calling objecting employees "freeloaders" - people who get something that they are not paying for - assumes that they want what the union is selling. More productive employees who feel aggrieved by lockstep compensation and union protection of less productive workers; younger workers who don't want seniority; employees who do not like the causes and candidates that the union supports (and who understand that the reductions in "fair share" or "agency" payments do not relieve them of supporting them) are all compelled to pay for what they don't want and associate with those they do not wish to associate with.
It is, of course, true that they can just go work elsewhere. It is odd, however, to hear Democrats make that type of argument given that they make it no other context. They don't say the employers should not be forced to pay a minimum wage, provide a certain number of sick days, etc., because those workers "who don't like it can just find another job." Moreover, as I noted before, the burden placed on objecting employers is, to a significant degree, the product of government compulsion. The law has made employers recognize the union and bargain. It has made the union an exclusive representative. It hardly seems unreasonable for the state to relieve objectors of this government created burden.
This will make collective bargaining impossible only if a large number of employees opt out. But why is it a problem - much less the evil and oppression that some claim it to be - to require unions to persuade workers that what they are offering is worth what they are charging.
Of course, one can argue that the "majority should rule" and that every worker should go along with what a bare majority of his co-workers want. But I don't see why that's true. We allow the majority to decide what government ought to do because, in the end, government must decide how it it to exercise its limited powers. But there is no corresponding argument that there must be a single contract between employers and a collective of workers. Some people may want that, but other arrangements are possible. Indeed, roughly 93% of all private workers are employed under these "other" arrangements.
The second was to correct the mischaracterization of the legal nature of collective bargaining agreements and what right to work actually does. As I wrote at Right Wisconsin, opponents typically argue that right to work interferes with a private and voluntary contractual arrangement to give some employees a "right to freeload."
But a collective bargaining agreement is normally not free of legal compulsion and regulatory interference. The government forces employers to recognize a union supported by a majority of employees and requires it to negotiate on all mandatory subjects of bargaining. In the absence of legal interference, none of that would be required.
Moreover, because the union can choose to be an exclusive representative (some people argue that it must do so) the law forbids employers from negotiating with anyone other than the union and forces all employees - even those who never wanted a union or who do not like the demands it made or contract it negotiated - to abide by its terms. This too is anything but a voluntary, free market arrangement.
In short, the government is all over collective bargaining. It creates it through a series of legal compulsions and restrictions. To say that right to work interferes with freedom of contract ignores all of that.
Calling objecting employees "freeloaders" - people who get something that they are not paying for - assumes that they want what the union is selling. More productive employees who feel aggrieved by lockstep compensation and union protection of less productive workers; younger workers who don't want seniority; employees who do not like the causes and candidates that the union supports (and who understand that the reductions in "fair share" or "agency" payments do not relieve them of supporting them) are all compelled to pay for what they don't want and associate with those they do not wish to associate with.
It is, of course, true that they can just go work elsewhere. It is odd, however, to hear Democrats make that type of argument given that they make it no other context. They don't say the employers should not be forced to pay a minimum wage, provide a certain number of sick days, etc., because those workers "who don't like it can just find another job." Moreover, as I noted before, the burden placed on objecting employers is, to a significant degree, the product of government compulsion. The law has made employers recognize the union and bargain. It has made the union an exclusive representative. It hardly seems unreasonable for the state to relieve objectors of this government created burden.
This will make collective bargaining impossible only if a large number of employees opt out. But why is it a problem - much less the evil and oppression that some claim it to be - to require unions to persuade workers that what they are offering is worth what they are charging.
Of course, one can argue that the "majority should rule" and that every worker should go along with what a bare majority of his co-workers want. But I don't see why that's true. We allow the majority to decide what government ought to do because, in the end, government must decide how it it to exercise its limited powers. But there is no corresponding argument that there must be a single contract between employers and a collective of workers. Some people may want that, but other arrangements are possible. Indeed, roughly 93% of all private workers are employed under these "other" arrangements.
Monday, March 02, 2015
Building trades and right to work
It's not going to happen, but some people argue that there should be a carve out from right to work legislation for the construction trades. Such an exception would, I am told, be unique to Wisconsin.
The justification would be that unions provide training and need dues in order to provide it. The problem is that this does not seem to be the case. WMC, and other proponents of right to work, have made the claim that employers provide 95% of the training funds spent by trade unions. PolitiFact says this isn't true. I think PolitiFact has it wrong; I know that they are looking at it in the wrong way.
The question is not where the funds "originate." All of the money originates with the employers and, at some point, comes to belong either to the employees or unions. Nor is the question who controls the funds once they leave the employer. It seems to me that we want to know whether the training funds are from general membership dues or whether they are a separately negotiated payment from the employer to the union. Based upon what I know, it is not "mostly false" that this is the case; it is absolutely true.
If that's right, then the reduction in dues need not affect the payments for training. If employers wish to continue paying for training conducted by unions - if, indeed, this is a valuable and critical benefit provided by unions - they can continue to do negotiate such payments. Because right to work would not require unions to train non-members, it is possible that fewer workers would receive this training. But is it likely? If the training provided by unions is, indeed, essential, those workers who receive it will have an advantage in seeking employment, i.e., they will be more valuable to and desired by employers. If that's so, then they will have an incentive to be in the union.
I have not heard that the construction industry has collapsed - or that buildings are falling down - in right to work states like Texas, Florida, North Carolina and Virginia. Perhaps this is why.
Cross posted at Purple Wisconsin
The justification would be that unions provide training and need dues in order to provide it. The problem is that this does not seem to be the case. WMC, and other proponents of right to work, have made the claim that employers provide 95% of the training funds spent by trade unions. PolitiFact says this isn't true. I think PolitiFact has it wrong; I know that they are looking at it in the wrong way.
The question is not where the funds "originate." All of the money originates with the employers and, at some point, comes to belong either to the employees or unions. Nor is the question who controls the funds once they leave the employer. It seems to me that we want to know whether the training funds are from general membership dues or whether they are a separately negotiated payment from the employer to the union. Based upon what I know, it is not "mostly false" that this is the case; it is absolutely true.
If that's right, then the reduction in dues need not affect the payments for training. If employers wish to continue paying for training conducted by unions - if, indeed, this is a valuable and critical benefit provided by unions - they can continue to do negotiate such payments. Because right to work would not require unions to train non-members, it is possible that fewer workers would receive this training. But is it likely? If the training provided by unions is, indeed, essential, those workers who receive it will have an advantage in seeking employment, i.e., they will be more valuable to and desired by employers. If that's so, then they will have an incentive to be in the union.
I have not heard that the construction industry has collapsed - or that buildings are falling down - in right to work states like Texas, Florida, North Carolina and Virginia. Perhaps this is why.
Cross posted at Purple Wisconsin
Sunday, March 01, 2015
Yes, the John Doe is on life support
Three weeks ago, I had a column in the Crossroads section of the Milwaukee Journal Sentinel, calling the John Doe investigation all but dead. An article in the paper, quoting me and a number of other legal experts, suggested the same thing.
Last week, Brendan Fischer of the Center for Media and Democracy wrote that it may not be. He says that, in a recent case seeking to end the investigation, the Seventh Circuit rejected claims that the Doe relied on an unconstitutional interpretation of campaign finance law
No, it didn't. Fischer's statement is wrong. The point is not even arguable.
In O'Keefe v. Chisolm, the court did not reject those claims; it declined to consider them. It held that the federal Anti-Injunction Act prohibited an injunction against the John Doe procedure. This was a procedural ruling that did not itself reach the merits of the Doe.* The closest that the court came to the merits was in dismissing personal claims against the prosecutors. Those claims could prevail only if it was "clearly established" at the time of the investigation that the theory upon which it was based was unconstitutional. The Seventh Circuit said that it might turn out to be constitutional to ban coordinated issue advocacy. But to say that an issue is unresolved is not to resolve it.
These are pretty elementary mistakes on Fischer's part. First year law students learn the difference between decisions on jurisdiction and decisions that reach the merits of the claim. They are taught the distinction between concluding that a claim is, as lawyers say, "colorable" and concluding that it is correct.
In any event, my argument is not that the Doe fails because banning coordinated issue advocacy is unconstitutional, although it may be. But even it's not, it remains the case that 1) Wisconsin has not adopted a constitutionally adequate definition of coordination, 2) Wisconsin has not clearly made whatever ban on coordination it has applicable to issue advocacy and 3) based on press reports, the activity that is being investigated is not coordination.
Indeed, a principal part of the Seventh Circuit's reasoning in O'Keefe was that a federal law suit was unnecessary because the Club could - and did - raise these objections in state court. Not only had it done so, it won before the judge overseeing the Doe.
Indeed, the weakness of the Doe is illustrated by the supposed "smoking gun" e-mails that Fisher cites. None of them are evidence of coordination. At most, they suggest - they don't establish - that Governor Walker may have raised money for advocacy organizations.
Fischer calls these activities "entirely unprecedented" in Wisconsin. Really? When Barack Obama came to town last fall, he appeared at a $16,000/plate sushi dinner. Where does Mr. Fischer think the money went? (In fact, the Presidents' frenetic fundraising for SuperPACs became something of a joke during the last election cycle. It wasn't a crime.)
Politicians often urge people to give money to political action committees and other organizations who will spend money that might benefit the politician making the request or those that she favors. If raising money constitutes coordination, that would, on the prosecutors' theory of the Doe, make these committees or organizations subcommittees of the requesting politician. Because the donations would almost certainly exceed the contribution limits (and wouldn't be reported as contributions to the requestor), crimes could be charged. That's not the law and, if it was, it would be unconstitutional.
I don't say that the John Doe is dead because there is a slim chance that it could be resurrected. But it doesn't look good. It never did.
*The plaintiffs in O'Keefe are seeking review in the Supreme Court. The Seventh Circuit's ruling that the Anti-Injunction Act can be applied to an action brought under section 1983, a federal civil rights law, seems inconsistent with the approach adopted by the Supreme Court and followed by every other Circuit Court of Appeals to have considered the issue. I and my colleagues at the Wisconsin Institute for Law & Liberty filed an amicus brief in support of their petition.
*The plaintiffs in O'Keefe are seeking review in the Supreme Court. The Seventh Circuit's ruling that the Anti-Injunction Act can be applied to an action brought under section 1983, a federal civil rights law, seems inconsistent with the approach adopted by the Supreme Court and followed by every other Circuit Court of Appeals to have considered the issue. I and my colleagues at the Wisconsin Institute for Law & Liberty filed an amicus brief in support of their petition.
Cross posted at Purple Wisconsin
Tuesday, February 24, 2015
More on TIFs, Schools and Streetcars
A recent Politifact undertook to fact check Alderman Joe Davis' statement that the use of Tax Increment District revenue to fund the Milwaukee streetcar would cost the Milwaukee Public Schools revenue. The newspapers' verdict is that Davis got it "mostly wrong." That's not a fair evaluation. My colleague Mike Fisher wrote to the author, James B. Nelson, explaining what he got wrong. Mr. Nelson did not respond, so I'll share Mike's critique at the conclusion of this post.
At Urban Milwaukee, MPS teacher Jay Bullock says that MPS can't be hurt by the loss of tax base that would be caused by TIF financing of the street car. Purple Wisconsin blogger Cindy Kilkenny, who initially didn't think so, says Jay is right. She shouldn't have given up so easily. There is more to be said here too.
Let's start with Jay. Under most scenarios, it would be city taxpayers and not MPS itself that would be are hurt by the street car financing. This is because, as he points out, school districts are subject to revenue limits. If MPS had more tax base available to it, the revenue limits - in any given year - would remain the same. Assuming that it is already spending the maximum amount that it can (and it is), then it would be normally be unable to collect more in taxes and spend more money. It might be able to reduce tax rates, but the reduction would , to some degree, be offset by a loss in state equalization aid because the district is now richer. State equalization aid works by trying to "equalize" school districts' tax base per member. How much the offset would be depends on a whole host of factors that would differ from year to year. Jay's argument is that the district would still have the same amount of money. (Of course, schools are only part of the property taxes paid by city residents.)
So assuming that we don't care about the taxpayer, all else equal, you might think that MPS should be indifferent to an increase in its tax base. But there are problems with the notion that a loss in tax base cannot hurt MPS. Everything else does not stay equal. First, it is possible for school districts to exceed their revenue limits through referenda. That's hard to do, but it happens. Second, state aid doesn't stay the same in relation to revenue limits. Indeed, after a substantial increase, state aid as a percentage of the cost of k-12 education in Wisconsin has been declining. When that happens, school districts have to pick up the difference and it is easier to do that if you have a robust tax base. If I'm MPS and I care about the future, I should not be indifferent to my community's tax base. Equalization aid notwithstanding, its better for a school district to be rich than it is to be poor.
Jay then channels developers in arguing that TIF districts don't cost taxpayers - or any other taxing entity - any money. That is sometimes true and sometimes false. The conceit of tax increment financing is that the city needs to spend money to support particular development or the development won't happen. The story is that using the additional tax revenue to generate that development to "repay" the city for this support doesn't hurt taxpayers because, without the support, there would have been no development and no additional taxes.At Urban Milwaukee, MPS teacher Jay Bullock says that MPS can't be hurt by the loss of tax base that would be caused by TIF financing of the street car. Purple Wisconsin blogger Cindy Kilkenny, who initially didn't think so, says Jay is right. She shouldn't have given up so easily. There is more to be said here too.
Let's start with Jay. Under most scenarios, it would be city taxpayers and not MPS itself that would be are hurt by the street car financing. This is because, as he points out, school districts are subject to revenue limits. If MPS had more tax base available to it, the revenue limits - in any given year - would remain the same. Assuming that it is already spending the maximum amount that it can (and it is), then it would be normally be unable to collect more in taxes and spend more money. It might be able to reduce tax rates, but the reduction would , to some degree, be offset by a loss in state equalization aid because the district is now richer. State equalization aid works by trying to "equalize" school districts' tax base per member. How much the offset would be depends on a whole host of factors that would differ from year to year. Jay's argument is that the district would still have the same amount of money. (Of course, schools are only part of the property taxes paid by city residents.)
So assuming that we don't care about the taxpayer, all else equal, you might think that MPS should be indifferent to an increase in its tax base. But there are problems with the notion that a loss in tax base cannot hurt MPS. Everything else does not stay equal. First, it is possible for school districts to exceed their revenue limits through referenda. That's hard to do, but it happens. Second, state aid doesn't stay the same in relation to revenue limits. Indeed, after a substantial increase, state aid as a percentage of the cost of k-12 education in Wisconsin has been declining. When that happens, school districts have to pick up the difference and it is easier to do that if you have a robust tax base. If I'm MPS and I care about the future, I should not be indifferent to my community's tax base. Equalization aid notwithstanding, its better for a school district to be rich than it is to be poor.
This is why - before a TID can be formed - the relevant municipal authorities must make a finding that the development would not occur "but for" the municipal subsidy. In reality, this "finding" is often untrue.
But in the case of TID funds being used for the Milwaukee streetcar, we know that it is untrue. We know that the development generating the tax funds to be used for the project would, for the most part, be generated in the absence of the streetcar because they are already being generated. The TID revenue to be diverted to the streetcar comes from an existing TID, No. 56, and a newly created TID, No. 82. Here are the facts as explained to Mr. Nelson by my colleague:
1) TIF 56: The development that this TIF was created to support has already taken place. The property in the TIF consists of the Marine Terminal Condominium and the two Harbor Front condominiums. They are built. The improvements made by the city, consisting mostly of extensions of the Riverwalk along these properties and street and lighting improvements, have been almost completely paid off. In the ordinary course these properties would revert to the normal tax rolls and the property taxes paid on them, which are substantial, would be used for general municipal purposes including MPS. By extending the TIF, the Mayor is excluding these already developed and valuable properties from the tax rolls for another 15 or 20 years. There will be no new development in this TIF district as a result of the streetcar.
(2) TIF 82: Consists of two parcels, one that will be the Couture and one that will be the 633 office building. The 633 building is already under construction. In the normal course the increased tax revenue from this building when completed would roll into the normal city tax rolls and could be used for general purposes including schools. Instead, by including the 633 Building in TIF 82, the taxes relating to this new and expensive office building will go to support the streetcar. The Couture is the only development within either of the two TIFs that even arguably fits the template of a building that would not be built if not for the TIF financing. Of course, it was planned long before the TIF was created but it may be true, as developer Barrett says, that he will abandon this project without the streetcar. So it is possible that the incremental tax revenue that will accrue from the Couture project would actually fit the TIF paradigm.
Bottom line: no TIFS, the tax revenue from the three condominiums and the 633 building become part of the City’s normal tax base. As noted, TIF financing for the streetcar has absolutely nothing to do with the development of these buildings as the condos are already there and the 633 project is financed and already underway.
So the TIFs really just remove these four properties from the normal tax rolls for 15 or 20 years and the general revenue for the City that they would otherwise produce goes to streetcar construction instead of other city needs including the schools.
Now it may well be that spending more on schools won't happen because MPS would have "taxed to the max" anyway and doesn't want to - or can't - get voter approval to spend more. Maybe the money gets spent of police protection or community centers. Maybe city taxpayers get a break. The point is that the City of Milwaukee taxpayer is footing the bill for this streetcar just as much as if the Mayor had raised tax rates to get the money.
Now, of course, if you believe that human beings have changed so that what was once a failed technology will now miraculously cause millions - even billions ! - in new development, that reality won't bother you. If you're a developer that likes the idea of the city manipulating transit to dump customers on your front step, it's all good. But it's wrong to pretend that you aren't making city taxpayers foot the bill.
Cross posted at Purple Wisconsin.
Another performance of Much Ado About Nothing
We talk a lot about civility in public discourse and, of course, there's a certain amount of judgment in what is civil and what is not. I, for one, would hate to see writers lose their distinctive voice through fear of offending. In my mind, civility is more an art than a science; more a collection of principles than a set of rules.
One of the principles ought to be a strong presumption that people who disagree with you aren't dishonest or evil. They usually will have a reason for thinking the way that they do even if you disagree with that reason.
This principle was recently violated - strongly and pervasively - by the reaction to School Choice Wisconsin's request for student directory data from certain school districts outside of Milwaukee and Racine. (Full disclosure: I and my colleagues at WILL represent and work with SCW on a variety of matters. It is one of the most professional policy and advocacy shops to be found.)
Some of our friends on the left lost their composure and behaved as if SCW had done something heretofore unknown and legally questionable. Some argued - the lack of grammatical prose and logical rigor made it hard to tell - that SCW or schools participating in the choice program or some other folks would or could use the information for a variety of criminal purposes.
One of the principles ought to be a strong presumption that people who disagree with you aren't dishonest or evil. They usually will have a reason for thinking the way that they do even if you disagree with that reason.
This principle was recently violated - strongly and pervasively - by the reaction to School Choice Wisconsin's request for student directory data from certain school districts outside of Milwaukee and Racine. (Full disclosure: I and my colleagues at WILL represent and work with SCW on a variety of matters. It is one of the most professional policy and advocacy shops to be found.)
Some of our friends on the left lost their composure and behaved as if SCW had done something heretofore unknown and legally questionable. Some argued - the lack of grammatical prose and logical rigor made it hard to tell - that SCW or schools participating in the choice program or some other folks would or could use the information for a variety of criminal purposes.
First, it is absolutely clear that school directory data is not confidential. If you doubt this, let's read the law. Sec. 118.125 says that "directory data may be disclosed to any person" provided that parents or guardians or are aware of the type of information that has been designated as directory data and told them that they have fourteen days to object to its disclosure. Second, this is not some scary or nefarious or unknown provision of the law. It allows basic student information to be made available to people who might offer opportunities and services of potential interest to students and their parents. Camps, sports programs, colleges - all have legitimate reasons to contact families and families may well have an interest in hearing from them. Third, what SCW wanted to do - and will be doing - is perfectly consistent with the law and that purpose. It wants to make parents aware that the school choice program has been expanded to their area and tell parents how, if they are interested, to learn more. This is about as threatening as a letter from a drum and bugle corp or a local college.
This is why SCW was willing to amend its request at the request of the Green Bay School District. It didn't have to (and wasn't necessary to do so), but it could because all it wanted to do is send postcards to parents directing them to its website if they wanted to learn more about the program. SCW was not interested in a fight, it was interested in providing families with information and, to its credit, the Green Bay district agreed.
Could someone abuse a request for directory data? It's possible but this is not a new provision in the law. It was there in 1985 when, as a young lawyer representing the West Allis-West Milwaukee school district, I supervised the production of district records in a school desegregation case. If anyone has ever misused the law, I am not aware of it.
So the "story" was a nothing burger. It should have been easy to see that, but when you begin, as some people do, with the assumption that people you disagree with - say proponents of educational choice - are bad people, it's easy to miss the obvious and end up in the fever swamp.
T
Sunday, February 22, 2015
The UW will live
Recently, I wrote a piece at Right Wisconsin on the flap over the "Wisconsin Idea" at Right Wisconsin. Short version: the Wisconsin Idea is a common place generality that, at least in 2015, distinguishes the University of Wisconsin from nobody. No one has suggested that UW become a trade school or abandon research.
Are the proposed cuts to the UW budget "slashing" and "crippling" and "decimating?" Will they cause the UW to grind to a "halt?' I've read read repeated claims, in the Journal Sentinel and elsewhere, that they are and will.
Most of the media has elided the true nature of the proposed reduction by emphasizing that the cuts are roughly a 13% reduction in state aid. So they are. But most of the UW's revenue does not come from the state government. Much of the media has framed the story to imply that the UW campuses will have 13% less money to do what they do.
That is just false. The reduction in state aid amounts to 2.5% in revenue. That is how much less the UW will have to spend. I am sure that a cut of that magnitude will be felt, but it is simply not existential.
The Journal Sentinel's Politifact turned its attention to the magnitude of the cut. Some of the UW's revenue is restricted, i.e., it must be used for a particular purpose. Some of it is activity related. If, for example, you make money by selling tickets to a football game or running a basketball camp, you can't eliminate the game or the camp. It is sometimes claimed that over 60% of UW revenue falls into that category. Thus, Politifact suggested that one might argue the cut is "really" 6.5%.
I don't buy it. I am skeptical that 60% of the UW budget's is actually committed to uses that cannot be altered or delivered at a lower cost without violating some type of legal constraint. In fact to say so strikes me as facially implausible. But even if it were so, it would mean that roughly 60% of what the UW does would be untouched by the budget cuts and only the remaining 40% would see a 6.5% reduction. Unless you assume that the 60% is being spent for extraneous purposes, that fact is significant and saying that they "system" has been cut by 6.5% is, at best, wildly misleading. In fact, it's pants on fire wrong.
Having said that, I agree that the real world impact might be a bit heavier than using the 2.5% number suggests in that some uses of funds will be more vulnerable than others.
In addition, the university has hamstrung itself. It is bound by things like tenure and shared governance. These things make it difficult to more rationally allocate faculty. Having spent four years working full time on a law faculty, I am not persuaded that either of these things are as valuable as folks in academia commonly suppose they are. Tenure is supposed to protect the iconoclast and promote intellectual diversity, but the modern university is one of the more conformist institutions in our society. This is, in part, a product of shared governance. Faculties tend to replicate themselves. As one law professor once told me, "my colleagues' idea of diversity is to hire people who went to the same schools, worked in the same places, think the same way but look different."
I don't believe that tenure necessarily results in lazy professors. Most of my colleagues at Marquette - who generally only taught two classes each semester - contributed to the institution in additional ways, such as scholarship, development of curricula and clinical education and administration. But, regarding those few who did not, little could be done. In addition, the nature of these contributions tend to be chosen by the faculty member and not the administration. That's significant. For example, there is a presumption that all faculty should be engaged in research. This leads to a lot of dubious work. Some professors should teach more and write less, but the Dean generally cannot make that happen.
There are reasons for giving faculty some greater degree of autonomy than a corporation might, for example, give its marketing department. Moreover, the UW - and, for that matter, Marquette - couldn't possibly unilaterally move away from things like tenure, shared governance and light teaching loads. They'd bleed faculty and wouldn't attract good new professors. On this point, Chancellor Blank is correct. Our way of providing higher education is designed to be expensive.
But it is not knuckle-dragging philistinism to suggest that, when money is tight, some teachers should spend more time in the class room.
There is also a public fiction that cuts must be painless. Let's accept the fact that a cut in the UW budget will have real costs. The system won't be able to do things that, in an ideal world, we'd want it to do. It's a sad fact of life that money doesn't always stretch as far as we'd like. Wisconsin is still a high tax state. I think it is reasonable that there be a strong presumption against increasing them. (And, no, I'm not persuaded by arguments that restoring the cuts would only increase taxes a small amount. That's going to be true of any proposed reduction in government spending. All of those "small contributions" to this or that state program have resulted in a state with a relatively large tax burden.)
Here's another thing that you don't read. The UW's budget has been steadily increasing. For example, in 2002-2003, the system served approximately 140,000 students with a budget of roughly $ 3.5 billion, or a little under $ 25,000 per student. In 2011-2012, it enrolled a little over 155,000 students and had a budget of $ 5.9 billion, amounting to $ 36,000/student. That's a very large real increase. I'm sure that one can look behind these numbers in a variety of ways and it is certainly true that the increase has not come from additional state aid. But, at least at first blush, it doesn't seem like the UW is starved for money. Actually, it seems likes it has been doing quite well. Certainly much better than the taxpayers who it believes should pay more so that it will not have to make do with less.
I'm still not persuaded that the proposed UW cuts are a good idea. But I can't buy into the hair-on-fire hysteria with which they have been met.
Cross posted at Purple Wisconsin
Are the proposed cuts to the UW budget "slashing" and "crippling" and "decimating?" Will they cause the UW to grind to a "halt?' I've read read repeated claims, in the Journal Sentinel and elsewhere, that they are and will.
Most of the media has elided the true nature of the proposed reduction by emphasizing that the cuts are roughly a 13% reduction in state aid. So they are. But most of the UW's revenue does not come from the state government. Much of the media has framed the story to imply that the UW campuses will have 13% less money to do what they do.
That is just false. The reduction in state aid amounts to 2.5% in revenue. That is how much less the UW will have to spend. I am sure that a cut of that magnitude will be felt, but it is simply not existential.
The Journal Sentinel's Politifact turned its attention to the magnitude of the cut. Some of the UW's revenue is restricted, i.e., it must be used for a particular purpose. Some of it is activity related. If, for example, you make money by selling tickets to a football game or running a basketball camp, you can't eliminate the game or the camp. It is sometimes claimed that over 60% of UW revenue falls into that category. Thus, Politifact suggested that one might argue the cut is "really" 6.5%.
I don't buy it. I am skeptical that 60% of the UW budget's is actually committed to uses that cannot be altered or delivered at a lower cost without violating some type of legal constraint. In fact to say so strikes me as facially implausible. But even if it were so, it would mean that roughly 60% of what the UW does would be untouched by the budget cuts and only the remaining 40% would see a 6.5% reduction. Unless you assume that the 60% is being spent for extraneous purposes, that fact is significant and saying that they "system" has been cut by 6.5% is, at best, wildly misleading. In fact, it's pants on fire wrong.
Having said that, I agree that the real world impact might be a bit heavier than using the 2.5% number suggests in that some uses of funds will be more vulnerable than others.
In addition, the university has hamstrung itself. It is bound by things like tenure and shared governance. These things make it difficult to more rationally allocate faculty. Having spent four years working full time on a law faculty, I am not persuaded that either of these things are as valuable as folks in academia commonly suppose they are. Tenure is supposed to protect the iconoclast and promote intellectual diversity, but the modern university is one of the more conformist institutions in our society. This is, in part, a product of shared governance. Faculties tend to replicate themselves. As one law professor once told me, "my colleagues' idea of diversity is to hire people who went to the same schools, worked in the same places, think the same way but look different."
I don't believe that tenure necessarily results in lazy professors. Most of my colleagues at Marquette - who generally only taught two classes each semester - contributed to the institution in additional ways, such as scholarship, development of curricula and clinical education and administration. But, regarding those few who did not, little could be done. In addition, the nature of these contributions tend to be chosen by the faculty member and not the administration. That's significant. For example, there is a presumption that all faculty should be engaged in research. This leads to a lot of dubious work. Some professors should teach more and write less, but the Dean generally cannot make that happen.
There are reasons for giving faculty some greater degree of autonomy than a corporation might, for example, give its marketing department. Moreover, the UW - and, for that matter, Marquette - couldn't possibly unilaterally move away from things like tenure, shared governance and light teaching loads. They'd bleed faculty and wouldn't attract good new professors. On this point, Chancellor Blank is correct. Our way of providing higher education is designed to be expensive.
But it is not knuckle-dragging philistinism to suggest that, when money is tight, some teachers should spend more time in the class room.
There is also a public fiction that cuts must be painless. Let's accept the fact that a cut in the UW budget will have real costs. The system won't be able to do things that, in an ideal world, we'd want it to do. It's a sad fact of life that money doesn't always stretch as far as we'd like. Wisconsin is still a high tax state. I think it is reasonable that there be a strong presumption against increasing them. (And, no, I'm not persuaded by arguments that restoring the cuts would only increase taxes a small amount. That's going to be true of any proposed reduction in government spending. All of those "small contributions" to this or that state program have resulted in a state with a relatively large tax burden.)
Here's another thing that you don't read. The UW's budget has been steadily increasing. For example, in 2002-2003, the system served approximately 140,000 students with a budget of roughly $ 3.5 billion, or a little under $ 25,000 per student. In 2011-2012, it enrolled a little over 155,000 students and had a budget of $ 5.9 billion, amounting to $ 36,000/student. That's a very large real increase. I'm sure that one can look behind these numbers in a variety of ways and it is certainly true that the increase has not come from additional state aid. But, at least at first blush, it doesn't seem like the UW is starved for money. Actually, it seems likes it has been doing quite well. Certainly much better than the taxpayers who it believes should pay more so that it will not have to make do with less.
Cross posted at Purple Wisconsin
Thursday, February 05, 2015
Thus endeth the Doe?
We've recently read that a ruling by Judge Charles Clevert has "struck down" portions of Wisconsin's campaign finance law and may have effectively killed - if it is still alive - the John Doe investigation into "coordination" between Scott Walker's campaign and certain conservative groups. Both of these things are true, but they actually happened last May.
What Judge Clevert did last week was to enter a judgment formalizing - and reducing to legally prescriptive language (i.e., "you shall not do X") - a ruling of the Seventh Circuit Court of Appeals last spring in a case called Wisconsin Right to Life v. Barland. Most significantly, the Seventh Court held that the very scope of Wisconsin's campaign finance law was unconstitutional. As I wrote at the time, this ruling, at the very least, put the Doe inquiry on life support. Judge Clevert's recent order makes clear why this is the case.
Virtually all of Wisconsin's campaign finance laws are limited to activities undertaken for a "political purpose." The law itself defines this broadly, saying that it is anything done "for the purpose of influencing an election." While it has only sometimes admitted it, the Government Accountability Board has known for a long time that this definition is unconstitutionally vague and overbroad. The Supreme Court has made clear that not everything that might be said to have "the purpose" of influencing an election can be regulated. So the Barland court held that the state must limit its definition of "political purpose" to activities that constitute "express advocacy" - explicit calls to elect or defeat a candidate - or its "functional equivalent."
This is a pretty narrow definition. The Supreme Court has made clear, for example, that a communication (think of a campaign ad) can only be considered to be express advocacy (or its functional equivalent) if it is susceptible of no reasonable interpretation other than as a call to elect or defeat a candidate. In making this determination, it doesn't matter what the speaker "really" intended and very little consideration of the context is permitted. In other words, if it is at all possible to call something an issue ad, it's an issue ad. While the Court hasn't directly said so, it is hard to see how any ad that does not use "magic words" such as "vote for" or "defeat" can ever be considered express advocacy.
The implications for the Doe are obvious and Judge Clevert's order drives that home. It prohibits the defendants (which include the GAB and Milwaukee County District Attorney John Chisholm") from any criminal investigation that is inconsistent with this new and limited definition of "political purpose." If, as seems to be the case, those who were alleged to have coordinated with the Walker campaign did nothing but issue advocacy, then their activities could not fall within the constitutionally permissible definition of "political purposes." There would be literally nothing that can be lawfully investigated.
Some lawyers have argued that Barland's limitation of "political purpose" should not apply to coordinated communications. i.e., communications that have somehow been somehow been discussed with a candidate or someone who is deemed to be an agent of or closely related to a candidate. For reasons that I have explained elsewhere (including in briefs filed in related cases), I believe that this is wrong. People who advocate on issues frequently speak to elected officials and candidates. For example, liberal organizations who want to launch a campaign against right to work legislation will almost certainly discuss strategy and talking points with like-minded legislators - many of whom may be candidates for public office. Indeed, they have a constitutional right to do so. An overly expansive definition of "coordination" - one that does not clearly and narrowly define the conduct that constitutes coordination and the content of communications that might be considered coordination - does not give adequate protection to speakers.
John Chisholm and the GAB should never have started this Doe investigation. It was an unseemly and unprecedented assault on freedom of expression. Sound lawyerly judgment should have caused them to end it long ago. Now, it seems, they may have no choice.
Cross posted at Purple Wisconsin.
What Judge Clevert did last week was to enter a judgment formalizing - and reducing to legally prescriptive language (i.e., "you shall not do X") - a ruling of the Seventh Circuit Court of Appeals last spring in a case called Wisconsin Right to Life v. Barland. Most significantly, the Seventh Court held that the very scope of Wisconsin's campaign finance law was unconstitutional. As I wrote at the time, this ruling, at the very least, put the Doe inquiry on life support. Judge Clevert's recent order makes clear why this is the case.
Virtually all of Wisconsin's campaign finance laws are limited to activities undertaken for a "political purpose." The law itself defines this broadly, saying that it is anything done "for the purpose of influencing an election." While it has only sometimes admitted it, the Government Accountability Board has known for a long time that this definition is unconstitutionally vague and overbroad. The Supreme Court has made clear that not everything that might be said to have "the purpose" of influencing an election can be regulated. So the Barland court held that the state must limit its definition of "political purpose" to activities that constitute "express advocacy" - explicit calls to elect or defeat a candidate - or its "functional equivalent."
This is a pretty narrow definition. The Supreme Court has made clear, for example, that a communication (think of a campaign ad) can only be considered to be express advocacy (or its functional equivalent) if it is susceptible of no reasonable interpretation other than as a call to elect or defeat a candidate. In making this determination, it doesn't matter what the speaker "really" intended and very little consideration of the context is permitted. In other words, if it is at all possible to call something an issue ad, it's an issue ad. While the Court hasn't directly said so, it is hard to see how any ad that does not use "magic words" such as "vote for" or "defeat" can ever be considered express advocacy.
The implications for the Doe are obvious and Judge Clevert's order drives that home. It prohibits the defendants (which include the GAB and Milwaukee County District Attorney John Chisholm") from any criminal investigation that is inconsistent with this new and limited definition of "political purpose." If, as seems to be the case, those who were alleged to have coordinated with the Walker campaign did nothing but issue advocacy, then their activities could not fall within the constitutionally permissible definition of "political purposes." There would be literally nothing that can be lawfully investigated.
Some lawyers have argued that Barland's limitation of "political purpose" should not apply to coordinated communications. i.e., communications that have somehow been somehow been discussed with a candidate or someone who is deemed to be an agent of or closely related to a candidate. For reasons that I have explained elsewhere (including in briefs filed in related cases), I believe that this is wrong. People who advocate on issues frequently speak to elected officials and candidates. For example, liberal organizations who want to launch a campaign against right to work legislation will almost certainly discuss strategy and talking points with like-minded legislators - many of whom may be candidates for public office. Indeed, they have a constitutional right to do so. An overly expansive definition of "coordination" - one that does not clearly and narrowly define the conduct that constitutes coordination and the content of communications that might be considered coordination - does not give adequate protection to speakers.
John Chisholm and the GAB should never have started this Doe investigation. It was an unseemly and unprecedented assault on freedom of expression. Sound lawyerly judgment should have caused them to end it long ago. Now, it seems, they may have no choice.
Cross posted at Purple Wisconsin.
Saturday, December 27, 2014
Thoughts on Supreme Court reform
The legislature wants to amend the Constitution to allow the justices on the Supreme Court to select their own chief justice and to pass a statute setting a mandatory retirement age for judges. The latter does not require a constitutional amendment because the state constitution already empowers the legislature to set such an age at not less than 70. Current proposals would set the retirement age at 75.
I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.
It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.
The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.
But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.
There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)
Cross posted at Purple Wisconsin.
I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.
It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.
The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.
But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.
There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)
Cross posted at Purple Wisconsin.
Wednesday, December 17, 2014
What are you willing to give up for the Milwaukee streetcar?
I have a post on the streetcar project over at Right Wisconsin. The issue flips our common political assumptions in a number of ways.
Here is what is happening. Among other feats of financial ledgerdemain, the city wants to take $ 31,000,000 in tax revenue that is being generated by a project that is already underway - the 833 Building - and divert it to the streetcar. This money would undeniably be available if the streetcar was never built (the 833 project is already under construction) and, because of what the city proposes to do, cannot be made available for anything else.
It cannot be used for the schools.
It cannot be used to improve athletic facilities in the neighborhoods.
It cannot be used to rehabilitate inner city housing.
It cannot be used to fund community policing programs that might help to protect inner city residents while relieving tensions between the police and the minority community.
It cannot help build a new arena for the Bucks.
It cannot be spent for anything to help low income residents of Milwaukee.
It cannot be used to reduce the levy on a heavily taxed community.
Instead, it will be used to fund a transit technology that was the latest and greatest thing - in 1906. It will be used to fund a transit technology that is less energy efficient and slower than buses.
It will be used to fund a transit technology that was considered obsolete and counterproductive in the late 1940s. When the streetcar was offered for sale to Milwaukee's then-socialist government in the 1950s, the answer was no.
The justification for all of this is that it will be considered groovy by the well-heeled Millennials and empty-nested Baby Boomers that live downtown. These people don't actually need it, but they will like it. My colleagues and I joke that we will be able to ride the streetcar (which will stop close to our office on Burns Square) to the Milwaukee Club to meet with conservative donors at taxpayer expense. But, in reality, we won't. It will be quicker to walk.
Writing at Vox, left wing writer Matthew Yglesias calls the DC streetcar project the "worst transit project" in America and the case for a streetcar in densely populated DC is much stronger than it is here. This project is, at best, a naked exercise in redistribution from the less well off to the well heeled. In fact, it's boondoggle that will benefit nobody, If it's such a good idea - if it is more important than all of the things that I just mentioned - then why not let the people vote on it?
Cross posted at Purple Wisconsin.
Here is what is happening. Among other feats of financial ledgerdemain, the city wants to take $ 31,000,000 in tax revenue that is being generated by a project that is already underway - the 833 Building - and divert it to the streetcar. This money would undeniably be available if the streetcar was never built (the 833 project is already under construction) and, because of what the city proposes to do, cannot be made available for anything else.
It cannot be used for the schools.
It cannot be used to improve athletic facilities in the neighborhoods.
It cannot be used to rehabilitate inner city housing.
It cannot be used to fund community policing programs that might help to protect inner city residents while relieving tensions between the police and the minority community.
It cannot help build a new arena for the Bucks.
It cannot be spent for anything to help low income residents of Milwaukee.
It cannot be used to reduce the levy on a heavily taxed community.
Instead, it will be used to fund a transit technology that was the latest and greatest thing - in 1906. It will be used to fund a transit technology that is less energy efficient and slower than buses.
It will be used to fund a transit technology that was considered obsolete and counterproductive in the late 1940s. When the streetcar was offered for sale to Milwaukee's then-socialist government in the 1950s, the answer was no.
The justification for all of this is that it will be considered groovy by the well-heeled Millennials and empty-nested Baby Boomers that live downtown. These people don't actually need it, but they will like it. My colleagues and I joke that we will be able to ride the streetcar (which will stop close to our office on Burns Square) to the Milwaukee Club to meet with conservative donors at taxpayer expense. But, in reality, we won't. It will be quicker to walk.
Writing at Vox, left wing writer Matthew Yglesias calls the DC streetcar project the "worst transit project" in America and the case for a streetcar in densely populated DC is much stronger than it is here. This project is, at best, a naked exercise in redistribution from the less well off to the well heeled. In fact, it's boondoggle that will benefit nobody, If it's such a good idea - if it is more important than all of the things that I just mentioned - then why not let the people vote on it?
Cross posted at Purple Wisconsin.
Monday, December 15, 2014
Accountability and School Choice: Let's Begin
Because accountability - for both private schools participating in one of Wisconsin's three school choice programs will be an issue in the coming legislative session - we at the Wisconsin Institute for Law & Liberty released the first of what we expect to be a series of reports on the issue.
The first report is descriptive and is called, not surprisingly, "Let's Begin by Understanding Where We Are." The report describes and comments upon state accountability measures applicable in the choice and public sectors. It concludes that it is simply not possible to claim that the state holds public schools to a greater measure of accountability than private schools participating in the choice program or vice versa. (We do note, however, that accountability measures for schools in the choice program appear to be more immediate and the consequences more onerous.)
We do not claim that the accountability measures imposed on the schools in the choice program are "too strict." We did note that, "whatever one might think of the adequacy of these standards," the DPI's interpretation of them seems to be, in certain respects, more aggressive than state law provides. These issues relate not to the standard themselves, but to requirements that a single standard be chosen at the beginning of the school year and that DPI policy seems to rule out the exercise of statutorily mandated discretion in it s enforcements.
But we take no position in this report as to what the accountability standards should be. Our report was descriptive and comparative, not normative.
There is a reason for that and it goes back to the title of the report. We do not expect the standards to remain the same. We anticipate a robust debate about what they should be in which we expect to participate. But, as that debate begins, we thought it important to draw attention to what the standards are and to address, in part, the common argument that public schools are held accountable in a way that choice schools are not.
The recent story regarding the Ceria M. Travis Academy illustrates this. I - and WILL - are not familiar with the school and, for that reason, take no position on its recent difficulties. But however poorly the Travis Academy may be faring, it is hardly the only failing school in the city of Milwaukee. It is being held accountable. Are failing MPS schools - and there are plenty - facing the same consequences?
Cross posted at Purple Wisconsin.
The first report is descriptive and is called, not surprisingly, "Let's Begin by Understanding Where We Are." The report describes and comments upon state accountability measures applicable in the choice and public sectors. It concludes that it is simply not possible to claim that the state holds public schools to a greater measure of accountability than private schools participating in the choice program or vice versa. (We do note, however, that accountability measures for schools in the choice program appear to be more immediate and the consequences more onerous.)
We do not claim that the accountability measures imposed on the schools in the choice program are "too strict." We did note that, "whatever one might think of the adequacy of these standards," the DPI's interpretation of them seems to be, in certain respects, more aggressive than state law provides. These issues relate not to the standard themselves, but to requirements that a single standard be chosen at the beginning of the school year and that DPI policy seems to rule out the exercise of statutorily mandated discretion in it s enforcements.
But we take no position in this report as to what the accountability standards should be. Our report was descriptive and comparative, not normative.
There is a reason for that and it goes back to the title of the report. We do not expect the standards to remain the same. We anticipate a robust debate about what they should be in which we expect to participate. But, as that debate begins, we thought it important to draw attention to what the standards are and to address, in part, the common argument that public schools are held accountable in a way that choice schools are not.
The recent story regarding the Ceria M. Travis Academy illustrates this. I - and WILL - are not familiar with the school and, for that reason, take no position on its recent difficulties. But however poorly the Travis Academy may be faring, it is hardly the only failing school in the city of Milwaukee. It is being held accountable. Are failing MPS schools - and there are plenty - facing the same consequences?
Cross posted at Purple Wisconsin.
Wednesday, December 10, 2014
We need a better debate on Ferguson
Following last month's elections, I was intrigued by David Haynes call - or at least longing - for greater civility in our political discourse. I share his objective and his interest in Jonathan Haidt's writings on the topic. I have some differences with Haidt who I think does not understand American conservatives, but that's a topic for another post. We'll get back to Haidt in a moment.
What does it mean to engage in civil discourse? I'd start by suggesting that it requires us to assume - until proven otherwise - the good faith of our opponents. If you find yourself believing that everyone you disagree with is monstrous or corrupt, you are almost certainly wrong. It also requires an openness to the facts; a willingness to at least adjust your argument in the face of the evidence.
Not one, but two Purple Wisconsin bloggers have endorsed - or come awfully close to endorsing - violence in the wake of the failure to indict Officer Darryl Wilson in the shooting of Michael Brown. They call it "disruption."
What are we to make of this? Imagine that a conservative blogger here called for secession from the Obama "regime" or wrote a jeremiad defending the need to "disrupt" society until the President respected the constitutional limits on his authority or until the rights of the "53 %" who fund our government are respected. Imagine that a blogger had written that "black people" ignore other black people who cause "white death" or were "cooperating" with violent black criminals. Imagine that a blogger had claimed that only a "scarce" number of black people were trying to be "dutiful members of the human race."
The call for - or tolerance of - "disruption" is a very extreme position. Now, of course, if I thought that the white people in the United States were engaged in a systematic campaign of genocide against black people - if I thought there was an "indefatigable pattern of black death at white hands" (in fact, interracial crimes are more likely to be black on white) - I'd call for "disruption" as well. But that would be an astonishing belief. To the extent it is based on a claim of deliberate indifference to widespread homicide, it implies that most of us are very bad people.
And if I thought these things, I would be wrong. While I suspect that race can race play a role in interactions between citizens and the police, there are, in fact, only relatively small differences in the likelihood that black or Hispanic - as opposed to white persons - will be stopped by the police. According to Justice Department statistics, blacks are slightly more likely than whites to report having been the subject of a traffic stop (13% v. 10%) or street stop (0.7% v. 0.6%). Roughly 1 % of the 25 % of all citizens who have had a face to face encounter with the police are subjected to force or the threat of force. The percentage for blacks (3.7% of those experiencing police encounters) is higher than that for whites (1.2%) or Hispanics (2.2%), but the fact is that the use of force or threat of force is a very rare event for blacks generally as well as for blacks who are stopped by the police.
But what about these differences in the reported use of force? A far left group called ProPublica calculates that young black males are much more likely to be killed by police as young white males (31/1,000,000 vs. 1.47/1,000,000), but this does not make such events frequent or even tell us much about police conduct. Statistically, young black males are also much more likely to commit homicides and other violent crimes (even though the overwhelming majority do not do so) and this is going to affect those numbers in ways that have nothing to do with bias. Are these police shootings justified? Is race a factor? We don't know. We do know that they are rare. While the numbers are disputed, it appears that two hundred African Americans are killed by the police each year. But there are over 6200 African American murder victims each year. Even if every one of the deaths caused by the police are unjustified or could somehow be eliminated, the impact on black victimization rates would be negligible. In a very large country, the law of large numbers will mean that there are always incidents - involving both blacks and whites - to talk about, but there simply is not an "indefatigable" parade of the improper use of force against black suspects.
Of course none of this means that we should ignore or minimize police brutality when it occurs (and it does). It does not mean that we should not take allegations of police misconduct seriously. It does not even mean that race is never a factor when interactions between young black men and police go wrong. But calls for "disruption" are predicated on claims that it is somehow "common" for police to wrongfully kill black people. That predicate is wrong. If there is an African American blood bath, it is not the police (or, for that matter, white people) who are causing it. If we are concerned about reducing black deaths, the police -as imperfect as they may be - are not where we should begin. Indeed, we need to acknowledge that the police are, on balance, the solution and not the problem.
In other words, if, to quote the hashtag, "black lives matter," we have remember that police protection is far more important for people in the inner city than it is for most of us in the suburbs. Black lives in the city are at risk in a way that the lives of people who live in safer areas are not.
So there is simply no justification for calls for - or the tolerance of - "disruption" which will, of course, harm innocent black folks already targeted with high levels of violence - not by the police - but by people that the police are trying to stop.
But returning to Haidt, moral positions are not always determined by the facts. Here, there seems to be a studied indifference to the facts - both of the Brown case itself and the larger issue of police misconduct. There is a certain power and self righteous frisson in imagining oneself to be a sentinel of justice against "indefatigable" oppression; to regard oneself as part of a scarce cadre of decent people. Against that, facts don't count for much.
Cross posted at Purple Wisconsin.
What does it mean to engage in civil discourse? I'd start by suggesting that it requires us to assume - until proven otherwise - the good faith of our opponents. If you find yourself believing that everyone you disagree with is monstrous or corrupt, you are almost certainly wrong. It also requires an openness to the facts; a willingness to at least adjust your argument in the face of the evidence.
Not one, but two Purple Wisconsin bloggers have endorsed - or come awfully close to endorsing - violence in the wake of the failure to indict Officer Darryl Wilson in the shooting of Michael Brown. They call it "disruption."
What are we to make of this? Imagine that a conservative blogger here called for secession from the Obama "regime" or wrote a jeremiad defending the need to "disrupt" society until the President respected the constitutional limits on his authority or until the rights of the "53 %" who fund our government are respected. Imagine that a blogger had written that "black people" ignore other black people who cause "white death" or were "cooperating" with violent black criminals. Imagine that a blogger had claimed that only a "scarce" number of black people were trying to be "dutiful members of the human race."
The call for - or tolerance of - "disruption" is a very extreme position. Now, of course, if I thought that the white people in the United States were engaged in a systematic campaign of genocide against black people - if I thought there was an "indefatigable pattern of black death at white hands" (in fact, interracial crimes are more likely to be black on white) - I'd call for "disruption" as well. But that would be an astonishing belief. To the extent it is based on a claim of deliberate indifference to widespread homicide, it implies that most of us are very bad people.
And if I thought these things, I would be wrong. While I suspect that race can race play a role in interactions between citizens and the police, there are, in fact, only relatively small differences in the likelihood that black or Hispanic - as opposed to white persons - will be stopped by the police. According to Justice Department statistics, blacks are slightly more likely than whites to report having been the subject of a traffic stop (13% v. 10%) or street stop (0.7% v. 0.6%). Roughly 1 % of the 25 % of all citizens who have had a face to face encounter with the police are subjected to force or the threat of force. The percentage for blacks (3.7% of those experiencing police encounters) is higher than that for whites (1.2%) or Hispanics (2.2%), but the fact is that the use of force or threat of force is a very rare event for blacks generally as well as for blacks who are stopped by the police.
But what about these differences in the reported use of force? A far left group called ProPublica calculates that young black males are much more likely to be killed by police as young white males (31/1,000,000 vs. 1.47/1,000,000), but this does not make such events frequent or even tell us much about police conduct. Statistically, young black males are also much more likely to commit homicides and other violent crimes (even though the overwhelming majority do not do so) and this is going to affect those numbers in ways that have nothing to do with bias. Are these police shootings justified? Is race a factor? We don't know. We do know that they are rare. While the numbers are disputed, it appears that two hundred African Americans are killed by the police each year. But there are over 6200 African American murder victims each year. Even if every one of the deaths caused by the police are unjustified or could somehow be eliminated, the impact on black victimization rates would be negligible. In a very large country, the law of large numbers will mean that there are always incidents - involving both blacks and whites - to talk about, but there simply is not an "indefatigable" parade of the improper use of force against black suspects.
Of course none of this means that we should ignore or minimize police brutality when it occurs (and it does). It does not mean that we should not take allegations of police misconduct seriously. It does not even mean that race is never a factor when interactions between young black men and police go wrong. But calls for "disruption" are predicated on claims that it is somehow "common" for police to wrongfully kill black people. That predicate is wrong. If there is an African American blood bath, it is not the police (or, for that matter, white people) who are causing it. If we are concerned about reducing black deaths, the police -as imperfect as they may be - are not where we should begin. Indeed, we need to acknowledge that the police are, on balance, the solution and not the problem.
In other words, if, to quote the hashtag, "black lives matter," we have remember that police protection is far more important for people in the inner city than it is for most of us in the suburbs. Black lives in the city are at risk in a way that the lives of people who live in safer areas are not.
So there is simply no justification for calls for - or the tolerance of - "disruption" which will, of course, harm innocent black folks already targeted with high levels of violence - not by the police - but by people that the police are trying to stop.
But returning to Haidt, moral positions are not always determined by the facts. Here, there seems to be a studied indifference to the facts - both of the Brown case itself and the larger issue of police misconduct. There is a certain power and self righteous frisson in imagining oneself to be a sentinel of justice against "indefatigable" oppression; to regard oneself as part of a scarce cadre of decent people. Against that, facts don't count for much.
Cross posted at Purple Wisconsin.
Subscribe to:
Posts (Atom)