This past Saturday morning, I had the privilege of speaking at Community Brainstorming, a weekly forum held at St. Matthew's AME Church. The topic was the Supreme Court's recent decision in Shelby County. Although Shelby County is often simply described as "gutting" the Voting Rights Act, it actually struck down the 48 year old formula by which certain states are required to seek the permission of the federal Department of Justice before they can implement any change in their election laws. Denying or abridging the right to vote on the basis of race continues to be prohibited by the Voting Rights Act and the United States Constitution.
I don't want to repeat the arguments for and against the result in Shelby County. Wisconsin was never one of these pre-clearance jurisdictions. I want to make a larger point about federalism.
In the course of our debate, Chris Ahmuty, Executive Director of the ACLU, asked why we should be worried about the rights of the states as opposed to the rights of the people. I think that's the wrong question; what our President would call a "false choice."
Although we so often lose track of the point, our system of federalism was conceived as check on governmental abuses. In other words, it is one of the ways in which the liberties of the people are protected. This happens in two ways. First, it is far easier for any one of us to exert influence on the state and local level than to have an impact on what happens in Washington DC. This is particularly true today, when much of what the federal government does is the product of administrative regulations and fiat. Under the Voting Rights Act regime of preclearance, it is not the President or Congress, but lawyers in the Department of Justice who hold up laws enacted by the legislatures and executives of covered states.
But even more importantly, a system of federalism disciplines government. The ability of, say, Illinois to overreach is limited by the ability of its citizens to move to Wisconsin. The option to vote with one's feet can protect liberty just as much as the ability to vote for politicians.
Of course, there is a proper role for the national government. That is why we have federalism and not confederation. But the presumption that Washington knows better - or even that Washington will always be friendlier to racial minorities - is not self evidently true.
I understand that, if you believe that the government ought to heavily tax and regulate a minority of the population - say those that are wealthier or own businesses - then this view will be less appealing to you. You will worry that the people who you want to take from money from or businesses that you want to control will leave. This may be why I suspect my view of federalism was not shared by many of the Brainstorming attendees.
But it seems to me that, if you believe that your policies are right, if you think that "the blue model" leads to Seattle and not Detroit (and "red model" produces, say, rural Mississippi and not Dallas), then you ought to have the courage of your convictions.
Cross posted at Purple Wisconsin.
Sunday, July 28, 2013
Friday, July 26, 2013
A more substantial disregard of the law
I was happy to see that the editorial board of the Milwaukee Journal Sentinel has decided that respect for the rule of law has become an important issue. What I found astonishing is that, while the board mentioned the desire of a few rogue Republicans who wanted states to "nullify" the badly misnamed "Affordable Care Act" by arresting federal officials who sought to enforce it (admittedly a goofball idea), it has ignored the actual nullification undertaken by the President.
There is no legal justification - none - for delaying the implementation of the law's employer mandate. (Yes, I know a few people have tried a justification but have only managed to resemble Jon Lovitz' Tommy Flanagan.) The law clearly requires that the employer mandate be enforced beginning in 2014 and the President's failure to do so is a blatant disregard of his constitutional duty to faithfully execute the laws. That editorial writers and others ostensibly dedicated to the "rule of law" are not up in arms about this is amazing.
While it doesn't matter why the administration is doing this, I think that there are two reasons. First, it has finally figured out that implementation of the plan is going to be a train wreck. They don't that to occur during an election year.
Second, we have always been told that ObamaCare was a complex mechanism that required all of its various elements to work. For example, in defending the individual mandate, the administration argued that it was necessary because of the requirements for community rating (sick people cannot be charged more) and guaranteed issue (pre-existing conditions must be covered.) Once you enact the latter two, people must be compelled to buy coverage or the cost of insurance will go through the roof. Once you set up exchanges and subsidies, you need the employer mandate to prevent - or at least limit - the dumping of employer coverage.
So ObamaCare cannot work without the employer mandate or, for that matter, verification of a person's eligibility for coverage (which has also been scuttled by Obaman decree). It doesn't take a cynic to think that the President is delaying the necessary pain to get the public wedded to the benefits that cannot exist for long without them. The hope is that the political landscape will change so that a law which Republicans have always said cannot work can be modified in a way that the Democrats prefer.
However you feel about health care policy, this should not be made to happen by ignoring mandated provisions of the law.
The Journal Sentinel editorial raises the City of Milwaukee's defiance of state repeal of residency requirements and the Mukwonago School Board's commitment to hang on to its "Indians" nickname as examples of "ignoring the law." Perhaps, but neither holds a candle to what Obama has done.
There are occasions when the only way - or at least the only practical way - to challenge an unconstitutional law is to violate it and then raise its unconstitutionality in ensuing enforcement proceedings. To be sure, there are other ways to do it but there can be difficulties that can make those routes impractical or even unavailable. I'm not saying this is so for the City of Milwaukee or Mukwonago schools, but the point is that both bodies will quickly have to defend their position in court.
Because of restrictive rules regarding standing (i.e.., the ability of a person to even bring a suit) in federal court, that may not happen with the President's defiance of the law. All the more reason that those who value the rule of law should be speaking loudly.
Yes, the handful of legislators who seemed to advocate arresting federal officials were off the rails. Perhaps the City of Milwaukee and Mukwonago schools should take a different route. But to get the vapors over these examples in the face of an extraordinary piece of national lawlessness is like the cop who writes a parking ticket in front of a bank that is being robbed.
Cross posted at Purple Wisconsin.
There is no legal justification - none - for delaying the implementation of the law's employer mandate. (Yes, I know a few people have tried a justification but have only managed to resemble Jon Lovitz' Tommy Flanagan.) The law clearly requires that the employer mandate be enforced beginning in 2014 and the President's failure to do so is a blatant disregard of his constitutional duty to faithfully execute the laws. That editorial writers and others ostensibly dedicated to the "rule of law" are not up in arms about this is amazing.
While it doesn't matter why the administration is doing this, I think that there are two reasons. First, it has finally figured out that implementation of the plan is going to be a train wreck. They don't that to occur during an election year.
Second, we have always been told that ObamaCare was a complex mechanism that required all of its various elements to work. For example, in defending the individual mandate, the administration argued that it was necessary because of the requirements for community rating (sick people cannot be charged more) and guaranteed issue (pre-existing conditions must be covered.) Once you enact the latter two, people must be compelled to buy coverage or the cost of insurance will go through the roof. Once you set up exchanges and subsidies, you need the employer mandate to prevent - or at least limit - the dumping of employer coverage.
So ObamaCare cannot work without the employer mandate or, for that matter, verification of a person's eligibility for coverage (which has also been scuttled by Obaman decree). It doesn't take a cynic to think that the President is delaying the necessary pain to get the public wedded to the benefits that cannot exist for long without them. The hope is that the political landscape will change so that a law which Republicans have always said cannot work can be modified in a way that the Democrats prefer.
However you feel about health care policy, this should not be made to happen by ignoring mandated provisions of the law.
The Journal Sentinel editorial raises the City of Milwaukee's defiance of state repeal of residency requirements and the Mukwonago School Board's commitment to hang on to its "Indians" nickname as examples of "ignoring the law." Perhaps, but neither holds a candle to what Obama has done.
There are occasions when the only way - or at least the only practical way - to challenge an unconstitutional law is to violate it and then raise its unconstitutionality in ensuing enforcement proceedings. To be sure, there are other ways to do it but there can be difficulties that can make those routes impractical or even unavailable. I'm not saying this is so for the City of Milwaukee or Mukwonago schools, but the point is that both bodies will quickly have to defend their position in court.
Because of restrictive rules regarding standing (i.e.., the ability of a person to even bring a suit) in federal court, that may not happen with the President's defiance of the law. All the more reason that those who value the rule of law should be speaking loudly.
Yes, the handful of legislators who seemed to advocate arresting federal officials were off the rails. Perhaps the City of Milwaukee and Mukwonago schools should take a different route. But to get the vapors over these examples in the face of an extraordinary piece of national lawlessness is like the cop who writes a parking ticket in front of a bank that is being robbed.
Cross posted at Purple Wisconsin.
Thursday, July 18, 2013
Bobo's false narrative on Zimmerman
One of the least thoughtful columns written in the wake of the Zimmerman verdict was written by Larry Bobo, a professor of African-American Studies at Harvard. (By way of full disclosure, I took Bobo's deposition many years ago but I remember little about it and I'm sure he remembers even less. He was a minor witness in a desegregation case.) He uses the verdict to argue that America is irretrievably racist because ... well ... "because" is where the trouble starts.
He writes:
In that universe, someone who is smart enough to have earned a Ph.D. could - even without a law degree - understand that we require guilt be proven beyond a reasonable doubt. If a jury does not have sufficient evidence to conclude who was the aggressor - if there is no way to choose between alternative hypotheses (i.e., did Zimmerman attack Martin or did Martin attack Zimmerman), then it must acquit.
I don't know exactly what happened that horrible evening. I am also pretty certain that Larry Bobo doesn't either. I do know that the jury's conclusion that the state did not prove it's case beyond a reasonable doubt can be explained on grounds other than racism.
Bobo's recitation of the "most elemental facts," by the way, is a typical trick of the post-modern academic. One raises a fact pattern or case (law professors are among the worst offenders) to a level of abstraction that allows one to assert connections and conclusions that would be unwarranted on a more "granular" (i.e., complete) view of the matter.
Cross posted at Purple Wisconsin
He writes:
The most elemental facts of this case will never change. A teenager went out to buy Skittles and iced tea. At some point, he was confronted by a man with a gun who killed him. There is no universe I understand where this can be declared a noncriminal act. Not in a sane, just and racism-free universe.Professor Bobo's understanding needs formation. A person might be found "not guilty" (not the same as a determination that his actions were "noncriminal") in a universe where we don't decide criminal cases based on a selective recital of the "most elemental facts." That universe - our universe - would insist on considering all of the relevant facts. In a sane, just and racism-free universe, we would understand that such a scenario could comprise a "noncriminal act" if the teenager attacked the man who reasonably used the gun in self defense. In our sane, just and racism-free universe, we would assess the evidence without trying to fit it into the prefabricated narrative of left wing academic.
In that universe, someone who is smart enough to have earned a Ph.D. could - even without a law degree - understand that we require guilt be proven beyond a reasonable doubt. If a jury does not have sufficient evidence to conclude who was the aggressor - if there is no way to choose between alternative hypotheses (i.e., did Zimmerman attack Martin or did Martin attack Zimmerman), then it must acquit.
I don't know exactly what happened that horrible evening. I am also pretty certain that Larry Bobo doesn't either. I do know that the jury's conclusion that the state did not prove it's case beyond a reasonable doubt can be explained on grounds other than racism.
Bobo's recitation of the "most elemental facts," by the way, is a typical trick of the post-modern academic. One raises a fact pattern or case (law professors are among the worst offenders) to a level of abstraction that allows one to assert connections and conclusions that would be unwarranted on a more "granular" (i.e., complete) view of the matter.
Cross posted at Purple Wisconsin
Monday, July 15, 2013
George Zimmerman and the mob
This morning I appeared on Mid-Day with Charlie Sykes (except it was Brian Fraley) to discuss the Zimmerman verdict. From a legal perspective, the verdict was almost a forgone conclusion and manslaughter was not an appropriate alternative. If the United States Department of Justice abjures political considerations and follows it's guidelines - indeed if it wants to avoid the disaster that befell Florida's politicized prosecution - it will stand down. A civil trial, on the other hand, while unlikely to succeed, is a very different proposition. The burden of proof is lower and Zimmerman will either have to testify or, if he can still invoke his privilege against self-incrimination(due to potential federal charges) risk have his silence used against him.
Folks who are upset about the George Zimmerman verdict have been motivated by a concern about racial profiling. They are not wrong to be concerned about the issue. I don't believe that racial profiling is as frequent as it is claimed to be (there are stronger cultural sanctions against it is than is commonly supposed) and much of what is claimed to be racially motivated suspicion is not. Of course, that doesn't mean it doesn't happen or is not a problem when it does.
I don't know whether George Zimmerman followed Trayvon Martin because he was black. The evidence is not strong. The "gated community" in which he lived is a multi-ethnic, working class development with a not inconsiderable crime problem. Zimmerman appears to have been a zealous "neighborhood watch" guy who frequently called the police on "suspicious characters." He seems not to have been racially motivated as much as prompted by a (perhaps) overzealous desire to protect his community and outsized idea about himself as an instrument of law and order.
And, strictly speaking, whether or not he was racially motivated has little - not nothing, but little - to do with his guilt or innocence on the charges he faced. Even if he had singled out Martin because of his race, he was still entitled to defend himself. Why he was where he was that night matters far less than what happened while he was there.
When you examine what we know about that, it was always clear that a criminal conviction was never going to happen. It is certainly possible (if, as the evidence came in, highly unlikely) that George Zimmerman committed a crime. It is not possible to conclude that he did so beyond a reasonable doubt.
This should remind us - again - of the dangers in using a criminal trial as a form of political and social expression. Crowds chanting "no justice, no peace" are not what "democracy looks like." They are - however well intentioned - mobs bent on something that looks uncomfortably like vigilante justice. They are what demagoguery looks like.
This is not to say that George Zimmerman is a hero or even an admirable character. In this instance, it would have been better had he stayed in his car and not tried to play Cop. His conduct may reveal him as a fool. But it doesn't make him a murderer.
Cross posted at Purple Wisconsin
Folks who are upset about the George Zimmerman verdict have been motivated by a concern about racial profiling. They are not wrong to be concerned about the issue. I don't believe that racial profiling is as frequent as it is claimed to be (there are stronger cultural sanctions against it is than is commonly supposed) and much of what is claimed to be racially motivated suspicion is not. Of course, that doesn't mean it doesn't happen or is not a problem when it does.
I don't know whether George Zimmerman followed Trayvon Martin because he was black. The evidence is not strong. The "gated community" in which he lived is a multi-ethnic, working class development with a not inconsiderable crime problem. Zimmerman appears to have been a zealous "neighborhood watch" guy who frequently called the police on "suspicious characters." He seems not to have been racially motivated as much as prompted by a (perhaps) overzealous desire to protect his community and outsized idea about himself as an instrument of law and order.
And, strictly speaking, whether or not he was racially motivated has little - not nothing, but little - to do with his guilt or innocence on the charges he faced. Even if he had singled out Martin because of his race, he was still entitled to defend himself. Why he was where he was that night matters far less than what happened while he was there.
When you examine what we know about that, it was always clear that a criminal conviction was never going to happen. It is certainly possible (if, as the evidence came in, highly unlikely) that George Zimmerman committed a crime. It is not possible to conclude that he did so beyond a reasonable doubt.
This should remind us - again - of the dangers in using a criminal trial as a form of political and social expression. Crowds chanting "no justice, no peace" are not what "democracy looks like." They are - however well intentioned - mobs bent on something that looks uncomfortably like vigilante justice. They are what demagoguery looks like.
This is not to say that George Zimmerman is a hero or even an admirable character. In this instance, it would have been better had he stayed in his car and not tried to play Cop. His conduct may reveal him as a fool. But it doesn't make him a murderer.
Cross posted at Purple Wisconsin
Saturday, June 29, 2013
What Walker should veto
Tomorrow, Governor Walker will sign the budget. He will veto some things. Here are a few I hope that he strikes.
A few weeks ago, I wrote about the "eviction" of the Wisconsin Center for Investigative Journalism from the UW campus. I suggested that this may have been the kind of thing that happens when you are as uninterested in intellectual diversity as the UW has been. I don't mind that the UW has institutions with a perspective. I do mind that they only have one kind, even if the WCIJ may not be as far to the left as many UW organizations.
Of course, as I noted, it is possible that this was just retaliation by politicians who didn't like a WCIH story and that's completely unworthy of the Governor and his administration.
But from the outset, I criticized a portion of the proposal that says that no UW employee may work with the WCIJ. This, I thought, was a violation of academic freedom.
The good people at the Foundation for Individual Rights in Education agree and have written to the Governor.
Telling academics what they can work on needs to go. What conservatives need to do is attack the censorship of the academy and not try to match it.
The budget has a provision that disqualifies from the state bidding process any company that hasn’t already performed work on a state or local project. Not a good idea.
I don't have a strong opinion about private bondsmen. (I am tempted to say that I have no dog in that fight.) There is evidence that this type of system - which exists in the overwhelming majority of states - can lead to fewer defendants failing to make court appearances at less cost to the state (albeit at higher costs imposed on defendants who are not found guilty.) My problem is that the advantages don't seem great while the opposition within the system is strong. That adds up to "not worth it" to me.
Finally, while I have nothing against the Kringle, the state pastry ought to be the cream puff or , in light of our strong German heritage, the Pfeffernusse. But Racine is a swing county and I'm a realist. It won't happen.
Cross posted at Purple Wisconsin
A few weeks ago, I wrote about the "eviction" of the Wisconsin Center for Investigative Journalism from the UW campus. I suggested that this may have been the kind of thing that happens when you are as uninterested in intellectual diversity as the UW has been. I don't mind that the UW has institutions with a perspective. I do mind that they only have one kind, even if the WCIJ may not be as far to the left as many UW organizations.
Of course, as I noted, it is possible that this was just retaliation by politicians who didn't like a WCIH story and that's completely unworthy of the Governor and his administration.
But from the outset, I criticized a portion of the proposal that says that no UW employee may work with the WCIJ. This, I thought, was a violation of academic freedom.
The good people at the Foundation for Individual Rights in Education agree and have written to the Governor.
Telling academics what they can work on needs to go. What conservatives need to do is attack the censorship of the academy and not try to match it.
The budget has a provision that disqualifies from the state bidding process any company that hasn’t already performed work on a state or local project. Not a good idea.
I don't have a strong opinion about private bondsmen. (I am tempted to say that I have no dog in that fight.) There is evidence that this type of system - which exists in the overwhelming majority of states - can lead to fewer defendants failing to make court appearances at less cost to the state (albeit at higher costs imposed on defendants who are not found guilty.) My problem is that the advantages don't seem great while the opposition within the system is strong. That adds up to "not worth it" to me.
Finally, while I have nothing against the Kringle, the state pastry ought to be the cream puff or , in light of our strong German heritage, the Pfeffernusse. But Racine is a swing county and I'm a realist. It won't happen.
Cross posted at Purple Wisconsin
Thursday, June 20, 2013
Data on choice schools will be available
I appreciate the difficulty that non-lawyers have in interpreting legal language and the challenges that anyone has in reporting on Wisconsin's chaotic budget process - a chaos that seems to reign no matter who is in power.
It is being reported that the current budget will have a provision that, as the headline puts it, "would limit the release of data on individual voucher schools.' That it highly misleading. The proposal would not limit the release of data on individual schools, but would only affect the timing of its release. It requires that it all data be released at the same time.
The Journal Sentinel's report on the proposal does not link to it or quote it. Here is the proposed language:
118.60 (11)
(d) 1. Except as provided in subd. 2., when the department publicly
releases data related to, but not limited to, enrollment of, standardized test results
for, applications submitted by, waiting lists for, and other information related to
pupils participating in or seeking to participate in the program under this section,
release the data all at the same time, uniformly, and completely.
releases data related to, but not limited to, enrollment of, standardized test results
for, applications submitted by, waiting lists for, and other information related to
pupils participating in or seeking to participate in the program under this section,
release the data all at the same time, uniformly, and completely.
2. The department may selectively release portions of the
information specified
in subd. 1. only to the following:
in subd. 1. only to the following:
a. A school district or individual school.
b. An entity requesting the information for a specific
participating private
school or the school district within which a pupil participating in the program under
this section resides, provided that the entity is authorized to obtain official data
releases for that school or school district.
school or the school district within which a pupil participating in the program under
this section resides, provided that the entity is authorized to obtain official data
releases for that school or school district.
Again, the "limitation" is only on the selective release of data.
The idea is that all of the data relating to all of the individual
schools should be released at the same time. But the date related to
each individual choice school will be made publicly available.
Superintendent of Public Instruction Tony Evers complains that this would not be true of publice schools. Perhaps not, but choice schools aren't public schools. They are private schools at which parents can choose to use vouchers. This does not make them public anymore than the corner grocery becomes a public agency because it accepts EBT cards.
The important thing to keep in mind is that test results and other data related to choice schools will be released. The only "limitation"is that DPI must release it at the same time.
Cross posted at Purple Wisconsin
Tuesday, June 11, 2013
A challenge to a certain form of campaign contribution limits
A column yesterday by Dan Bice discusses a lawsuit that I and my colleagues at WILL brought on behalf of Fred Young challenging Wisconsin's aggregate contribution limits. I think a few more things need to be said on the matter. Here they are.
This is how it works. In Wisconsin, the maximum limit on a contribution to a candidate for state wide office is $ 10,000. The aggregate limit on contributions to all candidates is also $ 10,000. So, if Mr. Young - or anyone else - makes a perfectly legal campaign contribution of $ 10,000 to a candidate for Governor, he can give no more to anyone else that year - not even a candidate for the school board.
I know of no other state with an aggregate limit that is so stringent in relation to the overall limit. (In fact, most states don't have aggregate limits at all.)
This is why the fact that we are challenging only the aggregate limit is important.
The United States Supreme Court has long made clear that contribution limits burden the rights of free speech and association. This is not, as is often said, an assertion that "money is speech" but a recognition that the First Amendment protects the right of candidates to speak effectively and for persons to band together to promote candidates and causes. These rights require the ability to spend money. The First Amendment would be meaningless if all it protected was the right to stand on the corner and holler at passing cars.
This recognition of the impact of contribution limits on speech and association is not, incidentally, a product of the Court's 2010 opinion in Citizens United. It goes back to the Court's 1974 decision in Buckley v. Valeo.
So it has long been recognized that contribution limits implicate First Amendment rights. But the Court has also said that they may be subject to reasonable limits for one reason - to reduce the risk of corrupting the recipient, i.e., to prevent an unstated quid pro quo; a promise to take some particular action in exchange for a contribution. The idea is that maybe there is a level of contribution to a candidate that is so high that there is an inherent risk of this form of corruption or its appearance.
But - and here's the important part - the Court has also made clear that this is the only justification for limiting contributions. They may not be restricted to equalize "access" to politicians, to reduce the voice of large donors, to keep "money out of politics" or to level the playing field. This limitation on the contributions restrictions is also not a product of Citizens United. It was first announced in the 1974 Buckley decision and made absolutely clear in a 2007 decision involving Wisconsin Right to Life.
The Court has also made clear that the government cannot limit contributions on the basis that a candidate will "appreciate" contributions to someone else - either other candidates or independent organizations.
This is why aggregate limits cannot stand. The state of Wisconsin has decided that a contribution of as much as $ 10,000 to a candidate for state wide office (and lesser amounts for lesser offices) do not create this risk of corruption. Once that interest is gone, it has no interest in limiting the number of these "non-corrupting" contributions that a candidate may make. In other words, aggregate limits do not serve the only constitutionally permissible justification for limiting a citizen's right to contribute to candidates of his or her choice.
This is why we filed our lawsuit and we are hardly the only ones. A challenge to the federal aggregate limit is currently pending before the United States Supreme Court. (WILL filed an amicus brief in that case.)
.
The sub head of the column suggests that Mr. Young "wants campaign giving limits abolished." That is not entirely accurate. While proposed legislation raises the maximum that can be contributed to a single candidate, his lawsuit has nothing to do with that. It does not challenge the limitation on contributions to a single candidate or even to seek to have those limits raised.
Instead, it challenges the overall limit on the contributions to all candidates combined - what is generally called the "aggregate limit." (Bice refers to it as a limit on the amount of contributions that can be made "cumulatively" - which strikes me as a broader - and different - concept, combining temporal with cross-recipient limits.)
Instead, it challenges the overall limit on the contributions to all candidates combined - what is generally called the "aggregate limit." (Bice refers to it as a limit on the amount of contributions that can be made "cumulatively" - which strikes me as a broader - and different - concept, combining temporal with cross-recipient limits.)
This is how it works. In Wisconsin, the maximum limit on a contribution to a candidate for state wide office is $ 10,000. The aggregate limit on contributions to all candidates is also $ 10,000. So, if Mr. Young - or anyone else - makes a perfectly legal campaign contribution of $ 10,000 to a candidate for Governor, he can give no more to anyone else that year - not even a candidate for the school board.
I know of no other state with an aggregate limit that is so stringent in relation to the overall limit. (In fact, most states don't have aggregate limits at all.)
This is why the fact that we are challenging only the aggregate limit is important.
The United States Supreme Court has long made clear that contribution limits burden the rights of free speech and association. This is not, as is often said, an assertion that "money is speech" but a recognition that the First Amendment protects the right of candidates to speak effectively and for persons to band together to promote candidates and causes. These rights require the ability to spend money. The First Amendment would be meaningless if all it protected was the right to stand on the corner and holler at passing cars.
This recognition of the impact of contribution limits on speech and association is not, incidentally, a product of the Court's 2010 opinion in Citizens United. It goes back to the Court's 1974 decision in Buckley v. Valeo.
So it has long been recognized that contribution limits implicate First Amendment rights. But the Court has also said that they may be subject to reasonable limits for one reason - to reduce the risk of corrupting the recipient, i.e., to prevent an unstated quid pro quo; a promise to take some particular action in exchange for a contribution. The idea is that maybe there is a level of contribution to a candidate that is so high that there is an inherent risk of this form of corruption or its appearance.
But - and here's the important part - the Court has also made clear that this is the only justification for limiting contributions. They may not be restricted to equalize "access" to politicians, to reduce the voice of large donors, to keep "money out of politics" or to level the playing field. This limitation on the contributions restrictions is also not a product of Citizens United. It was first announced in the 1974 Buckley decision and made absolutely clear in a 2007 decision involving Wisconsin Right to Life.
The Court has also made clear that the government cannot limit contributions on the basis that a candidate will "appreciate" contributions to someone else - either other candidates or independent organizations.
This is why aggregate limits cannot stand. The state of Wisconsin has decided that a contribution of as much as $ 10,000 to a candidate for state wide office (and lesser amounts for lesser offices) do not create this risk of corruption. Once that interest is gone, it has no interest in limiting the number of these "non-corrupting" contributions that a candidate may make. In other words, aggregate limits do not serve the only constitutionally permissible justification for limiting a citizen's right to contribute to candidates of his or her choice.
This is why we filed our lawsuit and we are hardly the only ones. A challenge to the federal aggregate limit is currently pending before the United States Supreme Court. (WILL filed an amicus brief in that case.)
.
Monday, June 10, 2013
More on diversity, UW and the WCIJ
Last week's contretemps over proposed legislation forbidding the Wisconsin Center for Investigative Journalism lead to a disagreement - somewhat overstated as a smack down or cage match - between Charlie Sykes and Mark Belling with the latter being for the proposal and the latter rather strenuously opposed.
My own reaction was to use it as an example of the perils of the UW"s indifference to intellectual diversity. When you set up yourself up - not as a place where all ideas are explored and many views are free to contend - but as a collection of faculty and institutions that are ideologically homogeneous and with a culture that is repressively conformist, this type of payback is what you get. You get it even if , as may be the case here, the target leans only (by UW standards, at least) moderately to the left. You get it even when, as may be the case here, the attack is politically foolhardy.
Of course, I may be ascribing motives to the legislature that it did not have - it being suggested that the whole affair was the product of a single legislator who didn't like a particular story written by the WCIJ.
Belling, as I understand it, suggests that an entity like WCIJ has no place on campus. I don't think that's right. Nor do I agree with suggestions that a group like WCIJ ought to have no ideological or philosophical perspective.
An organization or scholar can have certain preconceptions about the world - how things work and how competing values are to be weighed - and yet do quality work of high integrity. Indeed, if you spend any significant amount of time studying law, politics, economics, etc., you are almost certainly likely to migrate to a particular set of positions. Indeed, not having a stance may be more probative of a lack of qualifications than an assurance of integrity or quality.
In light of that, Sykes may be right in suggesting that going after the WCIJ is unfair and politically tone deaf. My guess, in nay event, is that there is no way this provision will stay in the budget.
But, in discussing this issue, I prefer to acknowledge the elephant in the room. If the UW wants respect for academic freedom and the respect that ought to be accorded an institution that fosters the pursuit and consideration of ideas, then it must deliver the goods. In the social sciences and the law, it has a long way to go.
Cross posted at Purple Wisconsin
My own reaction was to use it as an example of the perils of the UW"s indifference to intellectual diversity. When you set up yourself up - not as a place where all ideas are explored and many views are free to contend - but as a collection of faculty and institutions that are ideologically homogeneous and with a culture that is repressively conformist, this type of payback is what you get. You get it even if , as may be the case here, the target leans only (by UW standards, at least) moderately to the left. You get it even when, as may be the case here, the attack is politically foolhardy.
Of course, I may be ascribing motives to the legislature that it did not have - it being suggested that the whole affair was the product of a single legislator who didn't like a particular story written by the WCIJ.
Belling, as I understand it, suggests that an entity like WCIJ has no place on campus. I don't think that's right. Nor do I agree with suggestions that a group like WCIJ ought to have no ideological or philosophical perspective.
An organization or scholar can have certain preconceptions about the world - how things work and how competing values are to be weighed - and yet do quality work of high integrity. Indeed, if you spend any significant amount of time studying law, politics, economics, etc., you are almost certainly likely to migrate to a particular set of positions. Indeed, not having a stance may be more probative of a lack of qualifications than an assurance of integrity or quality.
In light of that, Sykes may be right in suggesting that going after the WCIJ is unfair and politically tone deaf. My guess, in nay event, is that there is no way this provision will stay in the budget.
But, in discussing this issue, I prefer to acknowledge the elephant in the room. If the UW wants respect for academic freedom and the respect that ought to be accorded an institution that fosters the pursuit and consideration of ideas, then it must deliver the goods. In the social sciences and the law, it has a long way to go.
Cross posted at Purple Wisconsin
Wednesday, June 05, 2013
Did UW pay for a lack of diversity?
The indignation has begun over the legislature's "attack" on the Wisconsin Center for Investigative Journalism. No one should be surprised. The UW - and universities across the country - have no one to blame for this type of thing but themselves.
The Wisconsin Center for Investigative Journalism may do good work, although the example given in news accounts of Wednesday's action - breaking the story of the altercation between Justices Prosser and Gableman - is not an example. That was actually pretty shoddy work. What is hard to deny is that it is funded by left-leaning organizations and has a left-leaning bias - as does almost every part of the UW engaged in policy work.
And that last part may be the problem. There is nothing wrong with a group like the Center for Investigative Journalism having a perspective on the world. There even could be nothing wrong with having a Soros funded organization like the Center (funded operation at a public university - or one funded by the Koch brothers.
But there ought be some balance. There is no way that the UW would tolerate a conservative counterpart of the Center for Investigative Journalism. Imagine, for example, the MacIver Institute with offices in Vilas Hall.
You can't.
I don't know why the legislature did what it did. Don't know anything other than what I read in the paper. But when public universities shun intellectual diversity - as the UW has indisputably done - they ought not to be surprised when people decide that it may not be wise to allocate public money to fund one side of the debate.
I understand that the reaction to this will be denial. But anyone who believes that the leftward tilt of universities is the result of unimpeded inquiry doesn't know very much about universities. They are wonderful in many ways but they are among the most conformist institutions in our society.
If this were not so. If the UW occasionally roused itself to promote a diversity of ideas, I'd have more sympathy for the Center. In any event, not being able to occupy Vilas Hall will hardly cause it to shut down. Rent is cheap.
I do have concerns about that part of the proposed legislation that says no one can do work "related to" the Center as part of their employment at the UW. That does strike me as a very broad proscription that is incompatible with academic freedom.
Cross posted at Purple Wisconsin.
The Wisconsin Center for Investigative Journalism may do good work, although the example given in news accounts of Wednesday's action - breaking the story of the altercation between Justices Prosser and Gableman - is not an example. That was actually pretty shoddy work. What is hard to deny is that it is funded by left-leaning organizations and has a left-leaning bias - as does almost every part of the UW engaged in policy work.
And that last part may be the problem. There is nothing wrong with a group like the Center for Investigative Journalism having a perspective on the world. There even could be nothing wrong with having a Soros funded organization like the Center (funded operation at a public university - or one funded by the Koch brothers.
But there ought be some balance. There is no way that the UW would tolerate a conservative counterpart of the Center for Investigative Journalism. Imagine, for example, the MacIver Institute with offices in Vilas Hall.
You can't.
I don't know why the legislature did what it did. Don't know anything other than what I read in the paper. But when public universities shun intellectual diversity - as the UW has indisputably done - they ought not to be surprised when people decide that it may not be wise to allocate public money to fund one side of the debate.
I understand that the reaction to this will be denial. But anyone who believes that the leftward tilt of universities is the result of unimpeded inquiry doesn't know very much about universities. They are wonderful in many ways but they are among the most conformist institutions in our society.
If this were not so. If the UW occasionally roused itself to promote a diversity of ideas, I'd have more sympathy for the Center. In any event, not being able to occupy Vilas Hall will hardly cause it to shut down. Rent is cheap.
I do have concerns about that part of the proposed legislation that says no one can do work "related to" the Center as part of their employment at the UW. That does strike me as a very broad proscription that is incompatible with academic freedom.
Cross posted at Purple Wisconsin.
Tuesday, June 04, 2013
It's not about WE Energies
One of the things that I have advocated for Purple Wisconsin
is that the bloggers engage each other. Quite frankly, the initial group of
participants – particularly those on the left – had no interest in that. One,
at least (who no longer participates) seemed actively hostile to the idea.
So I’m happy that Alex Runner wants to respond to an earlier
post that I wrote on the Milwaukee Streetcar Project. I am always happy to hear
from him.
But, unfortunately, he completely misses the point of my
post or of the proceedings that I and my colleagues at WILL have brought before
the Public Service Commission.
He thinks that I am concerned about WE Energies and don’t
understand what a “sweet deal” it has.
Actually, with all due respect, I am not concerned about WE
Energies at all. Those folks are more
than able to watch out for themselves.
Oh, and I do appreciate the nature of a regulated utility
(you don’t have to “work in city government” to learn that) although I’m not
sure Alex does. Because WE Energies is a monopoly, it has certain privileges
and advantages that a different kind of business would not have. But it is also
subject to certain types of regulation that a different kind of business would
not be - including price controls.
So I fully understand that they will probably be able to
pass the cost of utility relocations on to ratepayers.
That’s precisely the problem.
Although you wouldn’t know this from reading Alex’ post, the
matter that WILL brought before the PSC was not brought on behalf of WE
Energies, but on behalf of the ratepayers who do not want to contribute to the cost
of the streetcar. Because they have no place else to go and the utility
will, in all likelihood, be able to pass
the cost on to them, ratepayers have the right to challenge municipal
ordinances and actions that would impose unreasonable costs on them.
In other words, Alex has it exactly backwards. The reason
that there is PSC oversight and we invoked it is not to augment the privileges
of a regulated utility but to protect ratepayers from the consequences of those privileges - in this case, the ability to pass on municipally imposed costs that the rate payers have no ability to
avoid by, say, going and getting their electricity elsewhere.
It is certainly true that utilities can be forced to absorb
the cost of relocation occasioned by certain public works. The question before
the PSC is whether the street car project is the type of project that rate payers
can be forced to absorb. Asking the PSC to decide this is not an intervention
in “the free market.” There is no “market” involved.
I am also concerned about good government. WILL has no
position on the street car, but I, as a citizen, do. Here it is.
The Milwaukee Streetcar project takes a technology that was
abandoned over sixty years ago and proposes to return to it notwithstanding
that demographic and economic changes have made it even less feasible that it
was in, say, 1948. Streetcars are less efficient and use more energy than just
about any other alternative. They clog traffic resulting in both economic
losses and environmental harm. This one promises to be among the worst because
the route does not connect two points between which a large number of people
wish to travel but was chosen to lay the foundation for a larger system that
has absolutely no chance of ever being built. (Of course, Milwaukee used to have
city-wide streetcar system that was torn out because it clogged traffic and its
ridership went into the tank. Now that the city has fewer people and more of
them have cars, I’m sure it will do much better.)
Put simply, if the city had to pay for the street car, it
would never be built. I know that. Mayor
Barrett knows it and, I think, Alex Runner knows it. A project like this can
only happen because of a separation between who makes the decision and who pays
the bill.
Alex suggests that we ought to value “local control,” “local
government” and “ local taxpayers.” I agree. But you don’t get local autonomy
unless you have local responsibility.
Cross posted at Purple Wisconsin
Thursday, May 30, 2013
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
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
Tuesday, May 21, 2013
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
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
Monday, May 20, 2013
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.
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
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
Friday, May 17, 2013
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:
Cross posted at Purple Wisconsin.
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.
Monday, May 13, 2013
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.
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.
Tuesday, April 30, 2013
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.
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.
Monday, April 29, 2013
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.
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.
Monday, April 22, 2013
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.
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.
Tuesday, April 09, 2013
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.
Subscribe to:
Posts (Atom)