Today's Voter ID decision could have legs

I hate to say that I told you so. I really do. But not enough to refrain from saying it.

I have always thought that the argument that voter identification is unconstitutional because it imposes an "additional qualification" on voters to be imaginative but fundamentally flawed. The argument is that the Wisconsin Constitution says that the legislature may require voters to be over 18, citizens of the United States and residents of the districts in which they seek to vote. It says that the legislature may provide for registration and disqualify certain categories of voters, i.e., felons and persons who are incompetent. But, the argument goes, since the Constitution doesn't say the legislature can require photo identification, it can't.

The problem doesn't take a legal genius to identify. Photo ID is not an "additional qualification" outside of those listed in the Constitution, it is a means to ensure that the qualifications that the legislature can and has enacted are complied with, i.e,. it is a way to ensure that the person who seeks to vote is that person over 18 who is a United States citizen and resident of the district who has registered to vote.

Now you can argue that this is unnecessary or may not be the best way of doing that, but the courts don't get to decide what is "necessary" or "best." As the Court of Appeals ruled today, the legislature may enact reasonable election regulations so long as they are not so burdensome as to effectively deny the right to vote. Because that hadn't been proven, photo ID had to stand.

Today decision, in a case called League of Women Voters v. Walker, does not disturb a separate injunction against the law in NAACP v. Walker which remains pending before a different district of the Court of Appeals.   

However, it may very well result in reversal in NAACP as well. Here’s why.

Today’s decision makes clear that, under the Wisconsin Constitution, the legislature may enact reasonable election regulations unless a challenged regulation is so burdensome that it effectively denies potential voters their right to vote. This is not the standard that was applied by the court in NAACP. While we believe that case ought to be reversed and dismissed, it would appear that, at minimum, the Court of Appeals must vacate the NAACP decision and send the case back to the circuit court with instructions to apply the proper standard.

Full disclosure: Along with my colleagues at the Wisconsin Institute for Law & Liberty, I filed an amicus brief in League of Women Voters on behalf of a diverse group of community leaders, including a former lieutenant governor, a journalist, a retired Milwaukee police detective who specialized in voter fraud, and leaders in the Hispanic and African-American communities, urging that the court show appropriate deference to the legislature and the law be upheld.


Cross posted at Purple Wisconsin

The IRS scandal may have been unavoidable

As the IRS scandal plays itself out, there are three competing narratives. The first two look for whatever it was that motivated IRS workers in Cincinnati to target groups that seemed to be pushing conservative or libertarian causes. One theory is that a command came from the top - whether by express command or by the persistent demonization of the political opposition by our rather demagogic President and others in his administration. The other is that the genesis was the union that represents revenue agents. These theories, of course, are not mutually exclusive.

The countervailing theory, pushed heavily in Sunday's New York Times, is that there was no motivation - that this was just a misbegotten effort to "rationalize" the office's workload that just happened to target groups that the administration and union does not like. Sort of a screwed up form of serendipity. Wrong, but fortuitous.

There is, however, a fourth theory, It is that this particular form of abuse was baked in the books. There are certain parts of our society - think university faculties, legacy media operations and certain government offices - that are extraordinarily intellectually homogeneous and conformist. The assumption the groups like the ACLU or Voces de la Frontera who advance highly controverted  conceptions of the public good about which persons of different partisan persuasions differ - are somehow political and advance goals that "everyone" shares is in the air.

Organizations that advance different ideas about the public good - preferences for limited government and individual liberty in areas other than personal behavior - are seen as - here's one for you - the "other" - people who advance goals that "everyone" does not share and who are, therefore, "political" in a way that the ACLU and Voces are not.

If that's so, then no one needed to call for behavior that almost everyone know recognizes are reprehensible. It arose organically.

There is a lesson there for people who believe that ideological diversity is not important - that professors, reporters and bureaucrats are super men and women who can somehow arise above the biases that weigh down the rest of us.

There is a lesson there for those, like our President, who tell us not to fear concentrations of power because we can trust centralized decision-makers to behave in neutral and enlightened manners. One of the reasons that conservatives and libertarians prefer markets is not that (as the left mistakenly charges) that we think markets and business are always right, but that markets and businesses are far more likely to be allowed to fail when they are wrong.

The tragedy is that these lessons are likely to be lost on those that most need to learn them.

Cross posted at Purple Wisconsin

Pro-life and Pro-state?

My Purple Wisconsin colleague Alex Runner has written a nice post about what he sees as the implications of being pro-life. To be truly pro-life, in Alex' view, requires the support of some level of government support for persons with unwanted pregnancies and other redistributive programs.

Up to a point, of course, very few people disagree with that. While Democrats act like Republicans want to completely abolish "social safety net programs," I have run across precious few who actually do. (My own view is that such programs should be generous, temporary and contingent; but that's another topic.)

What Alex means is that, to be more effectively pro-life, Republicans ought to support more goverment spending than they do.

It seems to me that relatively little of our current political squabbles are about the social safety net, by which I mean support for person who, without aid, would be in poverty. ObamaCare, Social Security, Medicare, public employee collective bargaining, tax rates - all of these may touch upon social safety net programs but they are primarily about persons who are not poor. Indeed, neither political party spends much time talking about poor people.

So I might stipulate that effective anti-poverty measures are a good thing. But that leaves much to talk about. Here are a few points that I would raise in response to Alex' thoughtful post.

First, there is no necessary moral connection between insisting that human life not be taken and one's willingness to cover the costs associated with not taking it. It may well be expensive - and hard - for you not to kill your child. That doesn't meant that society has to hold you harmless for doing the right thing.

Second, the most effective anti-poverty program has been capitalism. There is no close second. Government subsidies will always be a poor subsitute for a prosperous society. The War on Poverty pulled very few people out of poverty. While it certainly offered some amelioration of the condition of poor persons, it did so quite inefficiently and in a way that has done little to improve the long term prospect of beneficiaries. To the extent that high levels of taxation and redistribution retard economic growth, they may be more likely to create than reduce poverty.

Third, safety net programs are not an unalloyed good. They can foster dependency and retard family formation. To the extent that they do this, they often an awful bargain - immediate relief in exchange for long term destitution. In the great run of cases, the goverment will never be able to do for you what you can do for yourself. It will never be able to provide the support that a family can.

Indeed, I would argue that one of the tragedies of modern liberalism is it's willingness to believe that the state can function as a person's family. It cannot. Christian Schneider's excellent report on the state of marriage in Wisconsin and supporting op-ed reflect what is perhaps the largest cause of poverty and dysfunction in our society. Government contributed to it, but, unfortunately, can do little to reverse it.

Finally, assistance to poor persons is not the exclusive province of government. Alex complains that private charity is too often inadequate but, if that is so, the extent to which government "crowds out" the activities of what are sometimes - but not quite accurately - called subsidiary organizations is part of the problem and not solely a solution. My own view is that, while government social programs will probably always be necessary,  we ought to have a strong preference fo private charity. It does not involve coercion and is less likely to foster the kind of dependency and counter-productive behavior associated with public programs - precisely because it can make the kind of moral demands and provide the moral support that a bureaucracy cannot.

Cross posted at Purple Wisconsin.

Best wishes for Mr. Zielinski

News is that Graeme Zielinski has resigned from the employ of the state Democratic Party. There is no sense in sugar coating Graeme Zielinski. He cultivated a singularly mean spirited and hateful public persona. One can only hope it was an act. That he actually believed the things he said is a scary thought.

My own view is that these scorched earth verbal ejaculations are of little value and counterproductive. But folks on both the left and right continue to indulge them, so I suspect I am wrong. Maybe they keep the base riled up and make some headway among the undecided - and largely uninterested and uninformed - voters who decide close elections.

Still there are things that are bigger than politics. He says he is facing a "health scare" and I wish him well.

When he comes back, I hope he will have learned something. You can have strong opinions without hating people who disagree.

Cross posted at Purple Wisconsin

The lessons of serial scandal

As George Will suggests today, the real import of the perfect storm of scandal that has surrounded the Obama administration isn't that it highlights the dishonesty and political venality of the current administration.

To be sure, the extent of corruption and will to power that is suggested by the Benghazi lies and the abuses of the IRS and DOJ are disturbing but what it even more concerning is the way in which the source of this wrongdoing was baked into the Obama administration from the outset.

More than most, the presumption of the Obama administration was that it would do very big things.  The assumptions were that 1) the country is a very troubling place and 2) "progressives" have the knowledge and capacity to make it better. There were relatively few limits to this hubris. From the day of his nomination, Obama literally promised to make a new world; to "begin to" heal the sick and stem the rising of the seas.

The arrogance of this is jaw dropping. The overpowering self righteousness was always at risk of dissolving into self-justification. If indeed we are charged with righting a cruel and indifferent and self destructive nation, then it is imperative that we remain in power. If we are the ones that the world has been waiting for, then little things like politics (i.e., the opinions of others) and procedural regularity are mere distractions.

"What difference, at this point,  does it make" that we deliberately misled the public about a terrorist attack that resulted in the murder of an American ambassador if that's what it took to ensure the re-election of the President? The IRS and AP events were wrong, but certainly ought not to cause us to worry about the Government managing our health care and histories. Do not fear the threat of tyranny, the President tells us, even as we see it all around us.


Will puts it this way:

Liberalism’s agenda has been constant since long before liberals, having given their name a bad name, stopped calling themselves liberals and resumed calling themselves progressives, which they will call themselves until they finish giving that name a bad name. The agenda always is: Concentrate more power in Washington, more Washington power in the executive branch and more executive power in agencies run by experts. Then trust the experts to be disinterested and prudent with their myriad intrusions into, and minute regulations of, Americans’ lives. Obama’s presidency may yet be, on balance, a net plus for the public good if it shatters Americans’ trust in the regulatory state’s motives.

Cross posted at Purple Wisconsin.

Here's the truth about the streetcar legislation

There have been repeated public reports that the Joint Finance Committee has approved a provision in the budget that would "block" the Milwaukee Streetcar Project. These reports are inaccurate.

The legislation would not prevent the City of Milwaukee from building a streetcar or using federal funds for a street car or  for any other local transit project. All it would do was prevent Milwaukee - or any other city - from forcing utilities to relocate embedded infrastructure without compensation.

Here's why that matters. To build the street car line, WE Energies and a variety of telecommunication utilities will have to relocate utility facilities - cables, pipes, etc. - that are buried in the street along the proposed use. Exactly now much this will cost is unknown, but it could be as much as - if not more than - the projected cause to build the streetcar itself.

The City of Milwaukee has budgeted nothing for these costs. It proposes to force the utilities to move these facilities at their own expense and, presumably, pass that cost on to ratepayers. In other words, people in places like Waukesha and Racine will wind up paying for much of the cost of a street car loop in downtown Milwaukee.

Current law provides that this may occur only if the Public Service Commission finds that imposing such costs on utilities is reasonable. This is the issue that I and my colleagues at the Wisconsin Institute for Law & Liberty have raised before the PSC on behalf of Brett Healy and 34 other WE Energy rate payers. (We were subsequently joined in raising the question by a number of the potentially affected utility.)

The issue is complex, but one of the arguments that we have advanced is that the imposition of these costs is unreasonable because the street car is "proprietary" in nature, i.e., it not an exercise of the police power to protect the safety, health and welfare of the public but an attempt to engage in an economic enterprise intended to confer a local economic benefit. This distinguishes it from things like road expansions and other projects for which utilities can be made to relocate facilities at their own expense.

In these circumstances, we have argued, the City ought to pay for what it wants. If the street car is the wonderful project that it is claimed to be, then the City of Milwaukee ought to pay for it.

The proposed legislation simply requires that they so say. It only provides that shifting these costs to rate payers who have had no say in whether the project ought to be built and who, for the most part, could not benefit from it is unreasonable as a matter of law.

If it passes, the City remains free to build it's street car. It must simply pay for the utility relocations. If the legislation does "kill" the street car, City residents don't want to do pay for it.

Purple Wisconsin blogger Jim Rowen suggests that the legislation would violate a 12 year old agreement resolving litigation over an earlier Environmental Impact Statement regarding local transit obligations.

No way. That agreement does not commit the state to any particular project nor does it require that the local funding of any approved project be arranged in any particular way. It is expressly subject to state law and does not - and could not - require that state law be configured in any particular way. It's a desperate argument. It won't work.

Our petition to the PSC was not about the merits of the street car project. But, I have to say, that the justification for the project is astonishingly weak. A street car is a technology that was found to be outmoded and undesirable almost seventy years when fewer people had cars and the population was not as dispersed as it is today. The operating costs of street car per both vehicle and passenger mile are much higher than buses. They are able to move less people than buses. They use more energy per passenger mile. They are notoriously slow and cause traffic congestion. They are, in most applications (there are a few exceptions not applicable here) a notoriously bad idea that would seem to require a theocratic devotion to anything that runs on rails to support.

If the City doesn't want to spend its own money on this, I won't be surprised. But, if that is what happens, it will the good sense of Milwaukee taxpayers and not this legislation that "killed" the streetcar.

Cross posted at Purple Wisconsin.

Milwaukee County's Board of Supervisors: You could not make us up!

If someone bent on reducing the size, compensation or powers of the Milwaukee County Board of Supervisors had installed Manchurian Supervisors - sleeper agents primed to act like a pack of idiots at a time calculated to hurt the Board politically - she could not have done better than the current - and presumably authentic - crew of Dimitrijevic and company.

I don't believe in conspiracy theories, but, if I did, we'd be through the looking glass with this bunch. You have to want to look bad to bad to foul up so thoroughly.

Let's assume that you are an ardent opponent of Act 10 and an active supporter of decertified county unions. You could do one of two things.

You might recognize that, while these unions are no longer certified collective bargaining agents, they are still associations of the county employees who choose to belong to them and that they are free to advocate for certain working conditions. You could meet with them. You could listen to them. You might even vote for the terms and conditions that they want.

But you'd have to be upfront about it. What you could not do is violate the open meetings law. You could not enter - or propose to enter into - agreements with these associations as bargaining agents of the employees. You'd want to acknowledge what you were doing.

I wouldn't advise it but you could even go a step beyond. You might persuade yourself - although you'd be wrong - that Act 10 is unconstitutional and that you are really entitled to collectively bargain with those unions that have been decertified under its terms.

Of course, you'd have to ignore the advice of your own lawyers. This is something that serious people tend not to do, but at least you'd be an honest fool.

But, once again, you could not violate the open meetings law. You should not skulk in the corners to hide what's happening and you should definitely not misrepresent  what you were up to.

In either scenario, you would not want to do these ill advised things while there were serious legislative proposals to restructure the board.

You would not resort to that last refuge of the scoundrel and the clueless and imply that those advancing those proposals are racist.

You would not do any of these things.

But here's the thing.

If you knew better, you would probably not be a member of the board majority. Because, up there, it looks like Manchurian Supervisors - each and every one.

Cross posted at Purple Wisconsin.

World Ends ! Women and minorities hit hardest !

So goes the old joke about a New York Times headline. The target is the tendency of the American left to want to see everything through the lens of race and gender.

Over the years, the left has repeatedly demonstrated that it is beyond satire. So it goes. Three members of Congress introduced a resolution expressing concern that climate change may cause "food insecurity" and "food insecure" women may be forced into "sex work" (we used to call it prostitution) and early marriage.

Were that to happen (I'm not persuaded it's likely), that would indeed be an awful consequence. But one would think that starvation or, if you prefer, "food insecurity" would be a problem for everyone.


Cross posted at Purple Wisconsin.

An Earth Day reflection

So it's Earth Day.

Excuse me, but I'm nonobservant.

Oh, I did once. In fact, I was there at the beginning. I remember celebrating the very first Earth Day as an eighth grader at Greenfield Middle School. I can even remember the old Ecology flags. Indeed, I can remember the term"ecology."

But I lost the faith. Reality can do that to you. The past 43 years of the environmental movement have been marked by too many shoes that did not drop and too many scares that took on the aura of hysteria upon sober reflection. Global freezing became global warming. Global warming became climate change. The Population Bomb turned out to be a dud. The fossil fuels that were supposed to be gone by now are not.

This is not to say that reasonable environmental safeguards aren't necessary. It's just that I tend to believe that the environmental impacts of public policies ought to be based on a rational assessment of costs and benefits without a metaphysical overlay.

If I did, I might wish to offer up to Gaia Don Bodreaux's heartfelt gratitude for the way in which capitalism has made our world cleaner, healthier and safer.

Cross posted at Purple Wisconsin.

Now for something provocative ...

Don Boudreaux, a libertarian economist at George Mason, publishes a great blog called Cafe Hayek. In arguing for ,limited government, he asks liberals who don't like social conservatives and conservatives who don't like state intervention in the economy, why they support big government in other contexts. He writes the following:

Here’s why I ask the above questions: every time I’m in a supermarket check-out lane and catch the headlines of the reading materials on sale there – soap-opera digests, magazines featuring Oprah and other entertainment celebrities, and the like – I literally get a bit of a queazy feeling in the pit of my stomach. It somewhat sickens me that people care who Jennifer Anniston is dating, what Oprah is eating, or why male hunk du jour just ditched female sex-goddess du jour for some other equally vacuous if va-va-va-voom!-inducing babe. I don’t wish to prevent anyone from reading about or caring deeply about these matters about which I truly couldn’t care less. But it scares me that people who read that nonsense – because they care about that nonsense - have a say in how my life is conducted. I resent the fact that such people, if only through the ballot box, influence how government orders me about. 

The more expansive is the scope of government authority, the more my life is subject to commands issued in part under the influence of people who read Us magazine. 

Scary.

Is it?

Cross posted at Purple Wisconsin.

Recusal and Elections

Over at Right Wisconsin, I have a piece up on the issue of recusal in the state Supreme Court race. Challenger Ed Fallone is trying to make an issue of incumbent Pat Roggensack's support of a rule that a legal campaign contribution or independent expenditure by a party to or attorney in the case does not require recusal.

Of course, an individual judge or justice might decide that, in a particular circumstance, a contribution or expenditure might warrant recusal. The rule that Roggensack supported only makes clear that recusal is not automatically required.

(Roggensack, along with a majority of the court, has also taken the position that the recusal decision is to be left to the individual justice - a practice that is also followed by the United States Supreme Court. But that's a different issue.)

Fallone appears to have said different things about recusal at different times, but has apparently settled on the view that there ought to be some sort of rule requiring automatic recusal - at least for contributions of expenditures over a certain level.

But would he follow that rule himself? He has enjoyed support - in a variety of forms - from persons with an interest in overturning Act 10. Would he recuse himself in a case addressing the constitutionality of that law?

I suspect that answer would be "no." I imagine he would say that, under the circumstances. he believes that he could address the issue fairly and impartially. He would say, that in the context of the case and the circumstances surrounding support of his campaign, he believes that recusal is unwarranted.

In other words, he would avail himself of the discretion that the rule supported by Roggensack affords each justice. If I am wrong, then he should be willing to say so. If he believes that contributions are naturally corrupting or automatically give rise to the appearance of bias, then shouldn't recuse himself whether or not there is a rule requiring it or without regard to what other justices might do?
Of course, he won't and, in a sense,  I don't blame him. An automatic recusal rule would make it impossible for people like Ed Fallone to ever challenge an incumbent judge or for voters to hold elected judges accountable. If campaign contributions would render a judge unable to sit on cases that are important to the contributor, then those contributions would not be forthcoming.

While it is easy to regard this as a good thing in the case of a private party interested in the outcome of a private dispute, that is not the typical circumstance in supreme court elections. Contributions tend to come from groups and organizations interested in electing judges with a particular philosophy. To adopt a rule that would require recusal in any case in which these groups are interested would shut down the process. (A rule that was limited to contributions that come from private parties who are litigants in the case would be largely meaningless. None of our recent recusal controversies involve such a dispute and the amount that a party can contribute will be immaterial in a contested statewide race.)
Some people would count that a good thing - being relatively immune from challenge would certainly foster judicial independence. But, in Wisconsin, where judges have always been elected, we have struck a different balance, trusting in the voters to evaluate judicial candidates and incumbents.If that balance is the correct one, then rules which make elections impossible or futile should be regarded as suspect.

If you are interested in this topic, I wrote about it at length here.

Cross posted at Purple Wisconsin

Snitching and Recusal: A very bad analogy.

My fellow Purple Wisconsin blogger Alex Runner is not, as far as I can tell, a lawyer. He seems like a bright guy and I enjoy his writing. But in his post today about Justice Pat Roggensack and her response to the complaint against Justice David Prosser, his lack of a legal education shows. With all due respect, he completely misunderstands the issues.

Alex compares the recusal of certain Justices to the "no snitching" culture which residents of our central cities struggle against. "They're not snitching," he writes. (Italics in the original.) We will, he laments, never know what really happened.

Wrong. Utterly long.

They all "snitched."

They all made statements to law enforcement officials. If Alex is interested, he can read them on line. Properly stated, Alex' problem is not that they refused to "snitch" but that he apparently doesn't believe - or like - what a majority of them had to say. Based on those statements, law enforcement officials declined to file charges. So "we know," based on that decision, that the responsible law enforcement agencies did not think that was possible to prove that anyone assaulted anyone else.

The Judicial Commission did file a disciplinary complaint with the Court. Because those justices who were witnesses to the event have recused themselves, the Court can't act on that complaint. (The Consitution requires four justices to constitute a quorum.) Alex goes on to say that the Court should have referred the matter to the Court of Appeals which he seems to think could have addressed the issue. He chides the recusing justices for not "allowing an outside, objective body to examine what transpired." To support his position, he cites another non-lawyer, Milwaukee Magazine editor Bruce Murphy.

Here are the main problems with Alex's critique.

First, if a majority of the Court recuses itself, then it cannot act to refer the matter to the Court of Appeals - whether one regards such a referral as pro forma or not. While some argue that a referring order is not necessary, the presiding judge of the Court of Appeals does not think so and it is he who has refused to appoint a panel to hear the case.

Second, even if a panel - Alex's "outside, objective body" - was formed, it could not decide the case. Under current law, only the Supreme Court itself can impose judicial discipline. If a quorum cannot sit on the case, then it can't be decided. One can argue that the law should be otherwise, but it's not. I'm sure that Alex, who so admirably promotes lawful behavior in his neighborhood, would agree that we cannot ignore the law now because it has become inconvenient.

Third, comparing the decision to recuse to a refusal to "snitch" trivializes the important - and difficult - ethical issues which each justice had to evaluate in deciding whether or not to recuse. The general rule is that a judge cannot sit on a case in which he or she is a witness. That prohibition is expressed both in statute and in the Code of Judicial Conduct.

One does not have to be a lawyer to understand why this is so. It is impossible to impartially evaluate your own testimony. The witness statements given by the Justices (i.e., what they said when they "snitched" to local law enforcement) reflect differing perceptions of the events. Deciding the case will require determining which of these differing perceptions most accurately captures what happened. It is humanly impossible to put aside what you believe that you saw and impartially evaluate your own version of events against the statements of others.

Nevertheless, some argue that the normal rule requiring recusal should be put aside pursuant to something called the "Doctrine of Necessity." This is the concept - rarely employed - that normal recusal rules can be disregarded if it is "necessary" to do so and there are sufficient assurances that normal precepts of due process and impartiality can be preserved. (My own analysis of the matter can be found here, here and here, including my suggestion as to how the Judicial Commission could more fruitfully address the matter.)

In a written opinion, Justice Roggensack considered the Doctrine of Necessity and explained why she believed that it could not be applied in this case. Perhaps Alex has carefully reviewed her opinion, read the cases that she cites and come to the conclusion that he disagrees with her legal analysis.

Perhaps he has, but a trite and facile comparison of her careful and thorough legal reasoning to "no snitchin'" does not suggest so.

I suppose one can argue that Justice Roggensack and her colleagues should have found a way around the normal rule of recusal and heard the case. Had they done so - given the content of the statements each of them gave to the police - it is almost certain that Justice Prosser would have been exonerated. What they say they saw simply does not warrant discipline.

But it would be hard to make an argument that the way in which they have addressed a difficult and unusual legal problem is much of a reason to unseat an incumbent Justice. "Yes to the Doctrine of Necessity" would not be much of a campaign slogan.

Alex concludes by saying that those who value "value ethics, transparency, rule of law, justice" ought to vote for Ed Fallone implying that Justice Roggensack does not believe in these things.

I read Wisconsin supreme court decisions for a living. I can assure Alex Runner that Pat Roggensack is not the monster he seems to think she is. She is a smart and conscientious jurist - as are her colleagues. We can disagree about the law without attacking the good faith of those we disagree with.

It could be that there are people who believe that there are "process" reasons to unseat Justice Roggensack. My own sense is that it takes an almost wilful misunderstanding of the issues to do so. I think that most folks who are voting for Ed Fallone are doing so because they want to move the Court to the left.

That is certainly their right, but a little candor about it - and a bit less character assassination - would be refreshing.

Cross posted at Purple Wisconsin.

Not so fast on new contracts

The MPS teachers' union wants to negotiate a new contract. They think that contract need not be compliant with Act 10 because of a Dane County circuit court decision holding that the law is unconstitutional. As I have written before, that decision does not create a window of opportunity to violate Act 10. Whether or not the union will ultimately be able to avoid Act 10 will depend on the decision of a higher court - almost certainly the Wisconsin Supreme Court.

If that court concludes that the Dane County circuit court was wrong - a conclusion that is highly likely - then any new contract that violates Act 10 will be unlawful and presumably void.

Moreover, the fact that a single circuit court judge in Madison thinks the Act is unconstitutional will have exactly no impact on the deliberation of higher courts. Lower court decisions are entitled to deference when they involve factual findings or the exercise of discretion. The decision holding Act 10 to be unconstitutional involved neither and is subjected, as lawyers like to say, to de novo

Negotiating a new contract would be even more problematic than that. The attorney for the plaintiffs in the Dane County case seems to think that a municipality that does not agree to negotiate terms that are forbidden by Act 10 would be engaged in an unfair labor practice. In his view, the Wisconsin Employment Relations Commission - to whom such charges are initially directed - would be bound by the circuit court decision because its members were defendants in the case.

But there are at least two problems with his argument. First, it us unclear that WERC, in its capacity as a tribunal, can be bound by a declaratory judgment in adjudicating the rights of a party who is not itself bound by that judgment.  For example, if the Mequon-Thiensville School District is charged with an unfair labor practice for complying with Act 10, it was not a party to the case finding it to be unconstitutional. The question is one that only a civil procedure professor (and I've been one of those) could love.

But there is a more fundamental problem. WERC's decisions are not final. They may be reviewed by a circuit court. That court will not be bound by the Dane County decision which - and this is black letter law - has no precedential value. A reviewing court need not follow it.

The future of Act 10 will be decided by the Wisconsin Supreme Court. If, as I think is almost certain to happen, the law is upheld then entering into agreements that are not permitted by it will create one hot mess. It will invite s a lawsuit in the short run and, in all likelihood, a tangled set of illegal obligations and payments to undo in the longer run.

 

Cross posted at Purple Wisconsin.

A question about voter identification

In light of yesterday's filing of voting fraud charges, I have the following question for opponents of voter ID.
Assume that the current law was amended to provide free copies of birth certificates. Assume that it also authorized a series of "registration weekends" in which DMV offices would be open for those who cannot make it during normal hours. Perhaps we could even set up a couple extra "outreach" stations during these weekends at which a DMV employee would be availbale to issue IDs. Finally, if someone was still unable to get an id card, they could still vote if they signed an affidavit - under penalty of perjury - explaining their inability to vote. Their photo would be taken at the time they signed the affidavit and filing a false affidavit would be a felony.
Would you still oppose voter identification laws?

Cross posted at Purple Wisconsin.

A campaign about nothing

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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin.

John Doe RIP

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

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


Cross posted at Purple Wisconsin.

Mad dogs and communications directors

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

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

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

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

Cross posted at Purple Wisconsin.

Not all cuts are created equal

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

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

Who would have known?


Cross posted at Purple Wisconsin

Spinning on tax cuts

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

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

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

Sounds like a middle class tax cut to me.

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

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

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

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

Cross posted at Purple Wisconsin.

Let my people go

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

Cross posted at Purple Wisconsin.