The rule of law is popular in theory, but a hard sell in practice. It tends to get in the way of what "we" want to do and requires that all sorts of procedures be followed before people can be legally bound or the public's money can be spent. It can be hard, under those circumstances, to "get things done."
Thus we have President Obama's impatience with Congress. It would be easier for him to get what he wants if he could just do it himself. I've often felt the same way.
But the thing is that the rule of law - the insistence upon following the law as it has been written and respecting the proper procedures for changing it - is what separates citizens from subjects. You may like what President Obama does outside the law withe respect to, say, health care or immigration. But just remember that the power you cede to him may one day be exercised by a President Paul Ryan or Marco Rubio. Maybe even Rick Perry or Scott Walker. There are no permanent victories in politics.
So what of last week's decisions about the availability of subsidies in states that have not established insurance exchanges under the Affordable Care Act. There are three things to keep in mind.
First, the language in the ACA that restrict payments of subsidies to policies purchased on "exchanges established by a state" is not readily dismissed as a typo or grammar error. No one forgot to change the number of a section or make uniform a change in terminology. If it was a mistake, it was an egregious one - the kind that no competent lawyer who was paying attention ought to make.
It's simple English. If I allow for exchanges to be established 1) by a state or 2) by the federal government and then provide for subsidies only for exchanges established by a state, then the subsidies don't apply to exchanges established by someone else.
The Milwaukee Journal Sentinel's editorial board suggests that "established by a state" can mean "established for a state." Not in English.
Second, the editorial board regards the "intent"of Congress as obvious. "Of course," it opines, Congress did not "really" mean to exempt the residents of 36 states from "the benefit" of tax credits (credits, incidentally, that can impose penalties on state employers and which cost real money) just because those states did not establish an exchange.
One might answer that they must have been what Congress "really" intended this because it is what Congress "really" did. But there is another problem with the board's reading of the legislative history of the relevant legal provisions as self -evidently clear.
Neither of last week's decision agreed with the board on this.
That's right. Neither the DC Circuit or Fourth Circuit majorities thought that the legislative history established that Congress intended that tax credits be available for federal exchanges. Even the Fourth Circuit found that the evidence of Congressional intent was inconclusive.
It is easy to imagine that Congress wanted something else. Indeed, one of the current enthusiasms among lawyers and scholars on the legal left is "cooperative federalism." It is, in fact, quite common that federal largesse is made contingent on states setting up a program or adopting a particular policy. While there is certainly an argument that this should not be done with a law like the ACA (assuming one wants like a law like the ACA), there are also arguments that it should.
In fact, there seems to have been two versions of the ACA originally drafted in the Senate. One provided for subsidies in federal exchanges and the other did not. The two were merged and the language of the latter survived. Normal principles of statutory construction say that a legislative body could not have intended to adopt language that it rejected.
Third, the board's conclusion that the "purpose" of the law should trump what it says ought to scare you. We are governed by the rule of law and not persons. We are, as I wrote earlier, citizens and not subjects. Perhaps Congress never believed that states would not set up exchanges. Maybe, as some evidence suggests, they understood that some may not do so and wanted to use the tax credits as an incentive.
Either view is consistent with the "purpose" of the law. Adopting some broad and unqualified purpose - to "increase" coverage" - is to beg the question. In enacting the ACA, Congress did not authorize the President to change the law as long as it increased coverage. It passed a law that it thought would increase coverage in a particular way. Just what that way entails is best discerned by reading the law that they wrote.
Cross posted at Purple Wisconsin
Thursday, July 31, 2014
Friday, July 18, 2014
The eggshell President
Over at Right Wisconsin, I have a column on the notion that Barack Obama is somehow subjected to more abuse or disrespect than other Presidents. Until this week, I would have thought that the idea that opposition to President Obama can be dismissed as based on his race was either intellectually lazy or simple partisan mischief.
If in a particularly ornery mood, I might have pointed out that this view is, in its own way, a manifestation of political hatred and ignorance. It should not he hard to understand why conservatives and libertarians would be apoplectic over a President who, whether you like him or not, is a pretty strong statist and fairly far to the left by recent standards. You can disagree with them, but to believe that they could have no reason for their opposition other than race is to refuse to even listen to those you disagree with. it It is to accuse them of subscribing to a noxious set of views without the slightest evidence.
In short, flinging allegations of racism at the President's critics is every bit as divisive and demagogic as the worst you may imagine about the late 60s GOP's supposed "southern strategy."
But it may even be worse than that.
If all you do is follow the mainstream media (including this newspaper). you probably have never read this story. (Indeed, to get the story locally, you would have had to listen to the "hateful" people on talk radio who "destroy everything that is good in our lives.")
At a holiday parade in Norfolk, Nebraska, someone entered a float that depicted the Obama Presidential Library as an outhouse. There was some kind of mannequin - described as "zombie-like" - that the proprietor of the exhibit said was supposed to be himself and not the President. He says he is a veteran and was depicting himself as dismayed by the poor care at VA hospitals.
Others disagree. They say that he was portraying the President outside of an outhouse. I don't care. Let's assume it was the President.
The float was, in my view, simple-minded and unimaginative. Potty humor got old for me sometime around 1962. I also tend to agree with the idea that Fourth of July parades aren't the best venue for political commentary.
The float certainly was not original. President George W. Bush's future Presidential library was also portrayed by as an out house - but not by an obscure float in a relatively small town. To the contrary, the Bush Presidential Outhouse was a product of Mike Luckovich, a nationally syndicated political cartoonist who has received two Pulitzer prizes for his brand of progressive potty humor.
And that was his constitutionally protected right. I would have thought that we were permitted to mock our Presidents. We've sure done a lot of it.
But, no. The Department of Justice has actually sent representatives to Nebraska to address this potential violation of our civil rights laws. It's Community Relations Services team has been dispatched to "resolve" this objectionable criticism of the boss.
I could explain all of the reasons why this is wrong, but I shouldn't have to.
If you aren't bothered by the idea that the federal government would send agents to investigate and "mediate" criticisms of the head of the federal government, you are not a civil libertarian. Don't tell me that you give to the ACLU. Don't explain how groovy you are on gay marriage, abortion, marijuana or the NSA. You have no regard for the First Amendment. You are committed to freedom for yourself and those like you, but not for others.
Cross posted at Purple Wisconsin.
If in a particularly ornery mood, I might have pointed out that this view is, in its own way, a manifestation of political hatred and ignorance. It should not he hard to understand why conservatives and libertarians would be apoplectic over a President who, whether you like him or not, is a pretty strong statist and fairly far to the left by recent standards. You can disagree with them, but to believe that they could have no reason for their opposition other than race is to refuse to even listen to those you disagree with. it It is to accuse them of subscribing to a noxious set of views without the slightest evidence.
In short, flinging allegations of racism at the President's critics is every bit as divisive and demagogic as the worst you may imagine about the late 60s GOP's supposed "southern strategy."
But it may even be worse than that.
If all you do is follow the mainstream media (including this newspaper). you probably have never read this story. (Indeed, to get the story locally, you would have had to listen to the "hateful" people on talk radio who "destroy everything that is good in our lives.")
At a holiday parade in Norfolk, Nebraska, someone entered a float that depicted the Obama Presidential Library as an outhouse. There was some kind of mannequin - described as "zombie-like" - that the proprietor of the exhibit said was supposed to be himself and not the President. He says he is a veteran and was depicting himself as dismayed by the poor care at VA hospitals.
Others disagree. They say that he was portraying the President outside of an outhouse. I don't care. Let's assume it was the President.
The float was, in my view, simple-minded and unimaginative. Potty humor got old for me sometime around 1962. I also tend to agree with the idea that Fourth of July parades aren't the best venue for political commentary.
The float certainly was not original. President George W. Bush's future Presidential library was also portrayed by as an out house - but not by an obscure float in a relatively small town. To the contrary, the Bush Presidential Outhouse was a product of Mike Luckovich, a nationally syndicated political cartoonist who has received two Pulitzer prizes for his brand of progressive potty humor.
And that was his constitutionally protected right. I would have thought that we were permitted to mock our Presidents. We've sure done a lot of it.
But, no. The Department of Justice has actually sent representatives to Nebraska to address this potential violation of our civil rights laws. It's Community Relations Services team has been dispatched to "resolve" this objectionable criticism of the boss.
I could explain all of the reasons why this is wrong, but I shouldn't have to.
If you aren't bothered by the idea that the federal government would send agents to investigate and "mediate" criticisms of the head of the federal government, you are not a civil libertarian. Don't tell me that you give to the ACLU. Don't explain how groovy you are on gay marriage, abortion, marijuana or the NSA. You have no regard for the First Amendment. You are committed to freedom for yourself and those like you, but not for others.
Cross posted at Purple Wisconsin.
Wednesday, July 16, 2014
Whither Mr. Penzey?
Bill Penzey strikes again.
In a recent version of his newsletter, he either describes - or endorses a description offered by some one else (standard punctuation doesn't seem to be among his interests) - of conservatives. He says - directly or by agreement - that conservatives - or at least the ones on talk radio - offer "poison to everything that's good in our lives as a roadblock to the path of Kindness that leads to cooking."
Now, I hadn't thought that cooking was a political act. I am aware that fevered imaginations can make it so just as some on both sides of our political divide convinced themselves that watching (or not watching) the World Cup was an ideological act. Let's put that silliness aside.
Would I ever say that the American left is a "poison to everything that's good in our lives ?"
Now, if anyone would be inclined to do so, it would be someone in a position like mine. I believe that liberty is preferable to command and the direction of life through politics - as opposed to markets or voluntary communities - should be avoided as much as can it be.
Although I enjoy what I do, I am sufficiently persuaded that this perspective is most conducive to a better life for everyone, that I spend about 60 hours per week advancing it. (I don't do it for money. Although I am very well paid, I made a lot more - over two to three times as much - as a business lawyer.)
But I understand that intelligent and well-intentioned people can disagree with me. They offer a perspective that ought to be respected - even as it may be robustly criticized. I'm too old to think that I have a monopoly on truth or morality.
But I guess Mr. Penzey is not. While I am sure that he doesn't see himself in this way, his newsletters suggest that he is simplistic and close-minded; one who fears and refuses to understand "the other."
Of course, there's another possibility - one that I suspect is just as likely as not. It could well be that Penzy's all-in lefty posturing is a marketing ploy. He sells what I suspect are commodity products - one that are really not much different from those of his competitors. To differentiate his spices, he wants to convey a message to the earth mothers and aging hippies that, by buying Penzey's, they are still part of the revolution.
At heart, he's just another capitalist.
Cross posted at Shark and Shepherd home page.
In a recent version of his newsletter, he either describes - or endorses a description offered by some one else (standard punctuation doesn't seem to be among his interests) - of conservatives. He says - directly or by agreement - that conservatives - or at least the ones on talk radio - offer "poison to everything that's good in our lives as a roadblock to the path of Kindness that leads to cooking."
Now, I hadn't thought that cooking was a political act. I am aware that fevered imaginations can make it so just as some on both sides of our political divide convinced themselves that watching (or not watching) the World Cup was an ideological act. Let's put that silliness aside.
Would I ever say that the American left is a "poison to everything that's good in our lives ?"
Now, if anyone would be inclined to do so, it would be someone in a position like mine. I believe that liberty is preferable to command and the direction of life through politics - as opposed to markets or voluntary communities - should be avoided as much as can it be.
Although I enjoy what I do, I am sufficiently persuaded that this perspective is most conducive to a better life for everyone, that I spend about 60 hours per week advancing it. (I don't do it for money. Although I am very well paid, I made a lot more - over two to three times as much - as a business lawyer.)
But I understand that intelligent and well-intentioned people can disagree with me. They offer a perspective that ought to be respected - even as it may be robustly criticized. I'm too old to think that I have a monopoly on truth or morality.
But I guess Mr. Penzey is not. While I am sure that he doesn't see himself in this way, his newsletters suggest that he is simplistic and close-minded; one who fears and refuses to understand "the other."
Of course, there's another possibility - one that I suspect is just as likely as not. It could well be that Penzy's all-in lefty posturing is a marketing ploy. He sells what I suspect are commodity products - one that are really not much different from those of his competitors. To differentiate his spices, he wants to convey a message to the earth mothers and aging hippies that, by buying Penzey's, they are still part of the revolution.
At heart, he's just another capitalist.
Cross posted at Shark and Shepherd home page.
Tuesday, July 15, 2014
Burke's posing on campaign contributions
Mary Burke's says that she'll ban out-of-state campaign contributions. Given that she is going after out-of-state cash, it was cynically offered as a way to step on the announcement that Governor Walker is far ahead in fundraising.
In any event, such a prohibition would almost certainly be unconstitutional.
It could not, under current constitutional doctrine, be justified by a desire to prevent Wisconsin candidates from associating with out-state donors or to keep those donors from being heard on Wisconsin elections. It would be permitted only if courts could be persuaded that out-of-state money - by virtue of its origin and not its amount (out-of-state contributors are subject to the same limits as everyone else) - presents a larger risk of quid pro quo corruption.
That strikes me as a hopeless task and it has failed whenever it has been tried. The question that critics of out-of-state money ask is this: Why would someone in Texas care about an election in Wisconsin?
The question answers itself. In federal elections, it's easy. A Member of Congress from Wisconsin gets the same vote on matters that affect Texas as one of its own representatives.
In state elections, it's just as easy. For someone to be able to get something from a Wisconsin elected official, he or she must have some interest in the state of Wisconsin. If that's so, then the risk of corruption is no greater than that presented by residents of the state - who also have interests in the state of Wisconsin. In other words, the threat of corruption is no greater with, say, the CEO of Georgia Pacific or a PAC associated with the national office of AFSME than it is with a local union or the CEO of Epic Systems.
If one is truly "outside" the state - i.e., someone with no tangible interest in state government - then there can be absolutely no risk of quid pro quo corruption. If George Soros or Sheldon Adelson have no business here, then they cannot benefit from state government. Their interest must be purely ideological, i.e., it must reflect a view about what is best for the state and, by extension, the country. If states are the laboratories of democracy and if a significant piece of national policy consists of the external effects of the policies of the individual states, it's not hard to see why a conservative or liberal donor in another state might care about what happens here.
Indeed, I suspect that much of the heavy spending from out-of-state donors on both sides is ideological.
When people criticize out-of-state contributions, they are really claiming that "outsiders" should have nothing to say about our elections. That strikes me as understandable, if a bit insular. But it's not enough, under our Constitution as interpreted by the Supreme Court to restrict the rights of expression and association involved with making and receiving campaign contributions.
Cross posted at Purple Wisconsin
In any event, such a prohibition would almost certainly be unconstitutional.
It could not, under current constitutional doctrine, be justified by a desire to prevent Wisconsin candidates from associating with out-state donors or to keep those donors from being heard on Wisconsin elections. It would be permitted only if courts could be persuaded that out-of-state money - by virtue of its origin and not its amount (out-of-state contributors are subject to the same limits as everyone else) - presents a larger risk of quid pro quo corruption.
The question answers itself. In federal elections, it's easy. A Member of Congress from Wisconsin gets the same vote on matters that affect Texas as one of its own representatives.
In state elections, it's just as easy. For someone to be able to get something from a Wisconsin elected official, he or she must have some interest in the state of Wisconsin. If that's so, then the risk of corruption is no greater than that presented by residents of the state - who also have interests in the state of Wisconsin. In other words, the threat of corruption is no greater with, say, the CEO of Georgia Pacific or a PAC associated with the national office of AFSME than it is with a local union or the CEO of Epic Systems.
If one is truly "outside" the state - i.e., someone with no tangible interest in state government - then there can be absolutely no risk of quid pro quo corruption. If George Soros or Sheldon Adelson have no business here, then they cannot benefit from state government. Their interest must be purely ideological, i.e., it must reflect a view about what is best for the state and, by extension, the country. If states are the laboratories of democracy and if a significant piece of national policy consists of the external effects of the policies of the individual states, it's not hard to see why a conservative or liberal donor in another state might care about what happens here.
Indeed, I suspect that much of the heavy spending from out-of-state donors on both sides is ideological.
When people criticize out-of-state contributions, they are really claiming that "outsiders" should have nothing to say about our elections. That strikes me as understandable, if a bit insular. But it's not enough, under our Constitution as interpreted by the Supreme Court to restrict the rights of expression and association involved with making and receiving campaign contributions.
Cross posted at Purple Wisconsin
Monday, July 14, 2014
More misinformation on Hobby Lobby
Yesterday's Milwaukee Journal Sentinel published a column by Leonard Pitts criticizing the Hobby Lobby decision. It stands in substantial need of correction.
We probably would not be - but not for the reason he thinks. We wouldn't be having it because Obamacare does not compel anyone to cover Viagra or vasectomies. Most insurance plans do cover them but, then again, most cover contraception as well - and did so before there was a mandate.
Pitts writes:
I once saw a protest sign to the effect that if men gave birth, contraception would be bacon-flavored and dispensed from vending machines. Can anyone argue the truth in that?
I can. Pitts needs an editor, because contraception is dispensed from vending machines. At least it is in men's rooms. I can't speak for the women's. Birth control pills, as far as I know, are not because they must be filled by prescription. But the FDA apparently allows Plan B by vending machine. My guess is that, if a strong medical case could be made for over the counter availability of traditional birth control pills, there would be wide spread support.
Pitts writes:
Would we even be having this debate if some company has a religious objection to Viagra - or vasectomies?
We probably would not be - but not for the reason he thinks. We wouldn't be having it because Obamacare does not compel anyone to cover Viagra or vasectomies. Most insurance plans do cover them but, then again, most cover contraception as well - and did so before there was a mandate.
If government did mandate coverage of vasectomies, there may well be some companies - say those run by very traditional Catholics - who might object. The claim of such objectors under RFRA would be subject to the same analytic framework as Hobby Lobby's.
Pitts writes:
If it is too much to ask Wheaton College to fill out a form because an employee will be "triggered' to buy contraception on her own, does the school also have the right to scrutinize and approve other purchases made with the salary she earns from them?Not a chance. There is a difference between being made to pay for something - or to participate in its purchase - and to seek to control the use someone makes of an employee's money after it has been paid to her and becomes "hers." If Pitts can't see that, be needs to try harder.
Pitts writes:
In its rush to confer personhood on organizations and constrain women's choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by a given business without first checking to make sure that you didn't offend the owner's religious sensibilities.The only rights recognized in Hobby Lobby were human rights - the rights of the humans who built and own the company. I presume that Pitts believes that the humans who own the corporation he works for - the Miami Herald - have a First Amendment right to publish his work.
The question for the court was how to reconcile conflicting claims of right by human beings. The idea that this conflict can be made to go away because some humans are exercising those rights in a corporate form or in the course of a commercial pursuit is preposterous. It's still there and still must be addressed.
In Hobby Lobby, the Religious Freedom Restoration Act provided the framework for resolution of that conflict. As the Court made clear, that does not mean that any claim of religious offense will prevail.
Finally, Pitts is upset because the Hobby Lobby majority suggested that an accommodation for nonprofits that required the insurers of objectors to provide contraceptives for free would be a less restrictive way to provide free contraceptive to employees of for profit companies like Hobby Lobby. But, several days after the Hobby Lobby decision, he thinks the Court "judged" that provision to be an unreasonable burden because it issued a temporary injunction freeing Wheaton College from having to fill out certain paperwork in connection with that accommodation.
Here Pitts gets into the legal weeds and entangles himself. It is not true, as he writes, that the Hobby Lobby court held that this accommodation would be legal as applied to religious nonprofits. It simply said that it would be one less restrictive way to accomplish the government's objective of providing free contraceptives for employees of for profit companies. It did not say that it was the least restrictive way - which is what RFRA requires.
Here Pitts gets into the legal weeds and entangles himself. It is not true, as he writes, that the Hobby Lobby court held that this accommodation would be legal as applied to religious nonprofits. It simply said that it would be one less restrictive way to accomplish the government's objective of providing free contraceptives for employees of for profit companies. It did not say that it was the least restrictive way - which is what RFRA requires.
His upset is premature. The court has not made a final decision on the Wheaton College case. It has only freed Wheaton from compliance - until its claims can be adjudicated. The injunction clearly indicates that a majority of the Court believes that Wheaton has a serious case, but that does not mean that Wheaton will win.
Cross posted at Purple Wisconsin
Cross posted at Purple Wisconsin
Wednesday, July 09, 2014
Why Sen. Johnson is right
Once again, I feel compelled to respond to a legal opinion offered by
the Journal Sentinel's editorial board. In this case, the board
believes that the case that I and my colleagues at the Wisconsin
Institute for Law & Liberty on behalf of Sen. Ron Johnson should be
dismissed. Although it will leave the "legal particulars" to the court
(good call), the board thinks that Members of Congress and their staff
"should" receive employer provided health insurance.
So do I.
But Congress did not.
It decided that Members and their staff should be in the same position as those most affected by the new Affordable Care Act. It decided that this would help Members and staff to understand the impact of the ACA and provide credibility to both Congressional proponents and opponents of the law. So it repealed federal health care benefits for Members and staff and said they may only be provided with insurance on exchanges. People who purchase in individual exchanges (the only ones that Members and staff qualify for) can't get tax free employer contributions.
When it came time to walk the walk, a minority of Members objected. They asked their colleagues to change the law and give back the benefits they had taken away. Congress refused. Unable to change the law, these Members asked the administration to bail them out and they did - writing a rule that undoes the law that is actually on the books.
Judge Griesbach will decide if Senator Johnson has standing to challenge the blatantly illegal rule that rewrites this mandate of equal status. I've been doing this too long to think I can predict the outcome of a case like this. But we believe that he does and , not as the board suggests, because of a generalized desire to see the law enforced.
Rather, the Senator has standing because it harms his relationship with his constituents and the ability to manage his personal staff in accordance with the law.
Rightly or wrongly, Congress decided that being in the same boat with those most affected by the ACA was important. Each Member is now entitled to insist on that status and is injured by the government's blatantly illegal rewrite of the law to evade it. (A Member can decline benefits for herself, but not for her staff.) In addition, each Member has an unavoidable legal responsibility to take certain steps to comply with the illegal "workaound" the law that Congress passed. This too supports standing.
The editorial board dismisses this interest in equal status as mere government "hypocrisy" and suggests that nothing should be done about that. What it doesn't understand is that a federal court is unlikely to dismiss what a co-equal branch of government has done as a mere stunt or meaningless act of political masochism. If Congress has a reason to do what it did, then Members of Congress - the very people affected by what it did - have a reason to insist on it.
But whatever comes of the standing argument (something that we knew would be raised), the outcome of the case should not turn on whether it is "good" for Members and staff to get federal health benefits. Congress decided that they should not. If that decision was wrong, Congress itself controls the remedy. It can repeal the mandate of equal status that it adopted.
But so far it hasn't. In a nation of laws, it is not for the Executive Branch or the judiciary to do it for them. To say that Senator Johnson, for insisting on fidelity to the law, is engaged in a "political stunt" is quite disappointing. I would have not have thought we'd come to the point where convenience trumps the rule of law.
Cross posted at Shark and Shepherd home page
So do I.
But Congress did not.
It decided that Members and their staff should be in the same position as those most affected by the new Affordable Care Act. It decided that this would help Members and staff to understand the impact of the ACA and provide credibility to both Congressional proponents and opponents of the law. So it repealed federal health care benefits for Members and staff and said they may only be provided with insurance on exchanges. People who purchase in individual exchanges (the only ones that Members and staff qualify for) can't get tax free employer contributions.
When it came time to walk the walk, a minority of Members objected. They asked their colleagues to change the law and give back the benefits they had taken away. Congress refused. Unable to change the law, these Members asked the administration to bail them out and they did - writing a rule that undoes the law that is actually on the books.
Judge Griesbach will decide if Senator Johnson has standing to challenge the blatantly illegal rule that rewrites this mandate of equal status. I've been doing this too long to think I can predict the outcome of a case like this. But we believe that he does and , not as the board suggests, because of a generalized desire to see the law enforced.
Rather, the Senator has standing because it harms his relationship with his constituents and the ability to manage his personal staff in accordance with the law.
Rightly or wrongly, Congress decided that being in the same boat with those most affected by the ACA was important. Each Member is now entitled to insist on that status and is injured by the government's blatantly illegal rewrite of the law to evade it. (A Member can decline benefits for herself, but not for her staff.) In addition, each Member has an unavoidable legal responsibility to take certain steps to comply with the illegal "workaound" the law that Congress passed. This too supports standing.
The editorial board dismisses this interest in equal status as mere government "hypocrisy" and suggests that nothing should be done about that. What it doesn't understand is that a federal court is unlikely to dismiss what a co-equal branch of government has done as a mere stunt or meaningless act of political masochism. If Congress has a reason to do what it did, then Members of Congress - the very people affected by what it did - have a reason to insist on it.
But whatever comes of the standing argument (something that we knew would be raised), the outcome of the case should not turn on whether it is "good" for Members and staff to get federal health benefits. Congress decided that they should not. If that decision was wrong, Congress itself controls the remedy. It can repeal the mandate of equal status that it adopted.
But so far it hasn't. In a nation of laws, it is not for the Executive Branch or the judiciary to do it for them. To say that Senator Johnson, for insisting on fidelity to the law, is engaged in a "political stunt" is quite disappointing. I would have not have thought we'd come to the point where convenience trumps the rule of law.
Cross posted at Shark and Shepherd home page
Thursday, July 03, 2014
The Myths of Hobby Lobby
Here is a statement that is objectively false.
In a stunningly misogynistic and regressive decision, five male justices of the Supreme Court of the United States have decided that if you are a woman your boss can force you to adhere to his religious beliefs.
- Kristen Hansen, Blue in a Red County (emphasis supplied).
Now I have no doubt that Ms. Hansen sincerely believes this, but it isn't true. Your boss can't force you to adhere to his religious beliefs.
The statement is not even close. It is not arguably true. Nor is it metaphorically true. It is not true if translated into any other language on the face of earth. It's not true with fingers crossed behind your back.
It just isn't true.
As a result of Monday's decision in Burwell v. Hobby Lobby, no one will be forbidden to use any form of lawful contraceptive. All the Court said is that the government can't force your boss to pay for them - if he or she has a genuine religious objection to providing them.
In fact, the truth is almost the opposite of what Ms. Hansen thinks it is. The rationale behind Hobby Lobby is that the government cannot enable you to force your boss to follow your religion or ethical views regarding aboritfacients (Hobby Lobby covers all other forms of contraceptive, including the pill, the diaphragm, etc.) You cannot make her pay for things that her religion tells her are wrong - unless there is no other way to achieve a compelling governmentment interest. If, as protestors outside of the Court claimed, your birth control is none of your employer's business, don't ask her to pay for it. (And, yes, some of the owners who objected in this case were female.)
But wait - if your boss doesn't pay for something, doesn't that mean that you won't be able to get it? You'd think the problem with that claim would be clear upon stating it.
But I guess not.
To say that a person is "denied" access to something every time someone else is not forced to pay for it does troubling violence to both the English language and to our notions of individual freedom and responsibility. It would be to say that women (and men; these things are normally needed only when one of them is around and, if he is a man, he ought to be concerned too) have been "denied" access to contraceptives until passage of the ACA's mandate. It would be to say that those who work for employers who are not covered by the ACA or whose employers choose not to provide coverage are "denied" access. Neither is true.
To be sure, most of us would prefer that someone else pay for our stuff. And there are certainly people for whom even the relatively low cost of contraceptives can present difficulties. Given the relatively low cost of these drugs, it's not clear that many of them work for Hobby Lobby (it pays sales clerks twice the minimum wage) or, for that matter, any other employer who provides the relatively expensive insurance mandated by the ACA. But let's put that aside. The solution is not to run roughshod over those closely held employers with a religious objection. If the government wants people to have these things for free, it can be done - and more honestly done - without forcing religious objectors to pay for it.
The irony here is that, in other contexts, we want "for profit" businesses to conduct themselves in accordance with moral precepts. We want them to be "good corporate citizens" - but apparently only to the extent that those moral precepts are approved by a political majority.
And there's the problem. The guarantee of religious liberty is not limited to beliefs that "we" approve of. There would, in fact, be no need to protect religious beliefs shared or tolerated by a majority. It is unlikely that any law would ever be passed restricting them.
Now, if you don't like, this, you ought to call for repeal of the Religious Freedom Restoration Act. You can argue that someone's desire or need for free contraceptives (the mandate makes no distinction between the two) trumps someone's else's sincere moral convictions about the sanctity of human life and what it means to be complicit in what he or she believes to be an immoral act. But don't pretend that you aren't the one imposing your moral presuppositions on someone else. The fact that you think you are right makes you no less an authoritarian.
The decision is not misogynistic - "stunning" or otherwise. ("Regressive" is just an epithet meaning "I don't like it.") I understand that control over reproduction is critical for women. (It's actually pretty critical for men too; but there certainly is a difference.) But that doesn't permit us to dismiss the associated moral and religious questions. It doesn't mean that all methods of control are acceptable or need to be financially supported by everyone.
Hobby Lobby objected to four of twenty covered drugs that they believe to be abortifacients, i.e., drugs that its owners believe ends a life that has already begun. I had not thought that we had gotten to the point where opposition to abortion - or an unwillingness to pay for it - can be dismissed as misogynistic. That will certainly come as a surprise to the women who dominate the pro-life movement.
In a stunningly misogynistic and regressive decision, five male justices of the Supreme Court of the United States have decided that if you are a woman your boss can force you to adhere to his religious beliefs.
- Kristen Hansen, Blue in a Red County (emphasis supplied).
Now I have no doubt that Ms. Hansen sincerely believes this, but it isn't true. Your boss can't force you to adhere to his religious beliefs.
The statement is not even close. It is not arguably true. Nor is it metaphorically true. It is not true if translated into any other language on the face of earth. It's not true with fingers crossed behind your back.
It just isn't true.
As a result of Monday's decision in Burwell v. Hobby Lobby, no one will be forbidden to use any form of lawful contraceptive. All the Court said is that the government can't force your boss to pay for them - if he or she has a genuine religious objection to providing them.
In fact, the truth is almost the opposite of what Ms. Hansen thinks it is. The rationale behind Hobby Lobby is that the government cannot enable you to force your boss to follow your religion or ethical views regarding aboritfacients (Hobby Lobby covers all other forms of contraceptive, including the pill, the diaphragm, etc.) You cannot make her pay for things that her religion tells her are wrong - unless there is no other way to achieve a compelling governmentment interest. If, as protestors outside of the Court claimed, your birth control is none of your employer's business, don't ask her to pay for it. (And, yes, some of the owners who objected in this case were female.)
But wait - if your boss doesn't pay for something, doesn't that mean that you won't be able to get it? You'd think the problem with that claim would be clear upon stating it.
But I guess not.
To say that a person is "denied" access to something every time someone else is not forced to pay for it does troubling violence to both the English language and to our notions of individual freedom and responsibility. It would be to say that women (and men; these things are normally needed only when one of them is around and, if he is a man, he ought to be concerned too) have been "denied" access to contraceptives until passage of the ACA's mandate. It would be to say that those who work for employers who are not covered by the ACA or whose employers choose not to provide coverage are "denied" access. Neither is true.
To be sure, most of us would prefer that someone else pay for our stuff. And there are certainly people for whom even the relatively low cost of contraceptives can present difficulties. Given the relatively low cost of these drugs, it's not clear that many of them work for Hobby Lobby (it pays sales clerks twice the minimum wage) or, for that matter, any other employer who provides the relatively expensive insurance mandated by the ACA. But let's put that aside. The solution is not to run roughshod over those closely held employers with a religious objection. If the government wants people to have these things for free, it can be done - and more honestly done - without forcing religious objectors to pay for it.
The irony here is that, in other contexts, we want "for profit" businesses to conduct themselves in accordance with moral precepts. We want them to be "good corporate citizens" - but apparently only to the extent that those moral precepts are approved by a political majority.
And there's the problem. The guarantee of religious liberty is not limited to beliefs that "we" approve of. There would, in fact, be no need to protect religious beliefs shared or tolerated by a majority. It is unlikely that any law would ever be passed restricting them.
Now, if you don't like, this, you ought to call for repeal of the Religious Freedom Restoration Act. You can argue that someone's desire or need for free contraceptives (the mandate makes no distinction between the two) trumps someone's else's sincere moral convictions about the sanctity of human life and what it means to be complicit in what he or she believes to be an immoral act. But don't pretend that you aren't the one imposing your moral presuppositions on someone else. The fact that you think you are right makes you no less an authoritarian.
The decision is not misogynistic - "stunning" or otherwise. ("Regressive" is just an epithet meaning "I don't like it.") I understand that control over reproduction is critical for women. (It's actually pretty critical for men too; but there certainly is a difference.) But that doesn't permit us to dismiss the associated moral and religious questions. It doesn't mean that all methods of control are acceptable or need to be financially supported by everyone.
Hobby Lobby objected to four of twenty covered drugs that they believe to be abortifacients, i.e., drugs that its owners believe ends a life that has already begun. I had not thought that we had gotten to the point where opposition to abortion - or an unwillingness to pay for it - can be dismissed as misogynistic. That will certainly come as a surprise to the women who dominate the pro-life movement.
Friday, June 20, 2014
Crime and politics
I have a column up on the unbearable lightness of the John Doe here.
Yesterday afternoon I returned to Milwaukee and as soon as I hit the ground noted e-mails about a Journal Sentinel story saying that prosecutors had alleged that Scott Walker was at the center of a criminal scheme.
What happened?
Nothing. All we had was the release of old documents including a brief in which prosecutors tried to defend their investigation. They were not, strictly speaking, alleging anything but saying that they had reason to believe that conduct had occurred that might be a crime and that justified an unprecedented raid on a host of conservative groups.
But maybe that's just semantics. The larger problem is that two judges have said that the "criminal scheme" that the prosecutors think may have occurred is no crime at all. A very recent decision of the Seventh Circuit - while not directly addressing the question - seems to me to suggest that they were right. As George Mitchell says, to announce the prosecutors' plan to get Scott Walker has now been "unsealed" and alleges a criminal scheme is a bit like announcing that we have unsealed Dom Capers great plan to contain Colin Kaepernick - after Kaepernick has run right through that plan three times.
It is,of course, possible that Judges Randa and Peterson will turn out to be wrong and that my reading of the Seventh Circuit's recent decision won't go as far as I think it may, but - for right now - it doesn't seem all that likely that any prosecutors will ever actually be alleging any criminal scheme.
This is incredibly complex stuff resting on concepts like "express" and "issue advocacy," "political purpose" and "coordination" that have a technical purpose and, at least at various points in time, an indefinite meaning. We can debate what those ought to mean. But the real abuse here may have been to take a real difference of opinion here about where the lines are regarding the financing of political speech and criminalizing it.
I get that knowing violations of the campaign finance laws are crimes but, when we are talking about constitutionally protected activity, very clear restrictions are absolutely essential. For example, the e-mail from Scott Walker to Karl Rove could not have reflected coordination between candidate Walker and the independent groups. It was written in 2011 and referred to Senate recalls, not any race in which Walker was a candiate. The argument that Walker wanted these candidates to win so that what helped them could be considered a contribution to him is truly unprecedented.
How you feel about that should not turn on whether you like Scott Walker or not. What the Democrats - and this was started by Democrats - tried to do to Walker could just as easily be done by a Republican DA to a Democratic elected official. Politics ain't bean bag, to be sure, but it also shouldn't be waged by armed people in windbreakers.
Cross posted at Purple Wisconsin
Yesterday afternoon I returned to Milwaukee and as soon as I hit the ground noted e-mails about a Journal Sentinel story saying that prosecutors had alleged that Scott Walker was at the center of a criminal scheme.
What happened?
Nothing. All we had was the release of old documents including a brief in which prosecutors tried to defend their investigation. They were not, strictly speaking, alleging anything but saying that they had reason to believe that conduct had occurred that might be a crime and that justified an unprecedented raid on a host of conservative groups.
But maybe that's just semantics. The larger problem is that two judges have said that the "criminal scheme" that the prosecutors think may have occurred is no crime at all. A very recent decision of the Seventh Circuit - while not directly addressing the question - seems to me to suggest that they were right. As George Mitchell says, to announce the prosecutors' plan to get Scott Walker has now been "unsealed" and alleges a criminal scheme is a bit like announcing that we have unsealed Dom Capers great plan to contain Colin Kaepernick - after Kaepernick has run right through that plan three times.
It is,of course, possible that Judges Randa and Peterson will turn out to be wrong and that my reading of the Seventh Circuit's recent decision won't go as far as I think it may, but - for right now - it doesn't seem all that likely that any prosecutors will ever actually be alleging any criminal scheme.
This is incredibly complex stuff resting on concepts like "express" and "issue advocacy," "political purpose" and "coordination" that have a technical purpose and, at least at various points in time, an indefinite meaning. We can debate what those ought to mean. But the real abuse here may have been to take a real difference of opinion here about where the lines are regarding the financing of political speech and criminalizing it.
I get that knowing violations of the campaign finance laws are crimes but, when we are talking about constitutionally protected activity, very clear restrictions are absolutely essential. For example, the e-mail from Scott Walker to Karl Rove could not have reflected coordination between candidate Walker and the independent groups. It was written in 2011 and referred to Senate recalls, not any race in which Walker was a candiate. The argument that Walker wanted these candidates to win so that what helped them could be considered a contribution to him is truly unprecedented.
How you feel about that should not turn on whether you like Scott Walker or not. What the Democrats - and this was started by Democrats - tried to do to Walker could just as easily be done by a Republican DA to a Democratic elected official. Politics ain't bean bag, to be sure, but it also shouldn't be waged by armed people in windbreakers.
Cross posted at Purple Wisconsin
Monday, June 16, 2014
Reaching across the fence Monday
In honor of yesterday's celebration of Father's Day (warning; picture of me looking like one of the heavies on Miami Vice) and this week's arrival of summer, let's make some softer observations.
Yesterday's Journal Sentinel had a profile on Chris Ahmuty of the ACLU. Have only met him once; seemed like a nice guy. I don't always disagree with the ACLU. i think that they have a left wing view of civil rights that tends to privilege equality over liberty. I sometimes refer to WILL as the anti-ACLU, but that's not quite right, We agree on a variety of, in particular, First and Fourth Amendment issues.
In any event, some of the comments complained about the Journal Sentinel doing a "puff piece" on a liberal. The paper would never do that for a conservative.
It would be less than gracious for me not to point out that it has done at least one - of me. I think that's what Bill Glauber does; he tries to present people on their own terms. You can call these puff pieces but I think there's some value in that. It probably does conservatives good to see that, say, Chris Ahmuty is not a monster. It's good for liberals to see that I'm not either. (At least not all the time.)
In another article, liberal lawyer Lester Pines said that attorney general candidates who said that they would not defend laws that they thought were unconstitutional were wrong. An attorney general should decline to defend state law only if he or she thinks that the argument in favor of a law's constitutionality is frivolous.
I have debated Lester on a number of things and been on opposite sides of litigation a few times. I like him. I disagree with him a lot. Here - he's right.
Let's use an example to illustrate the difference. Say the state passed a law that eliminated the privilege against self incrimination or that allowed local district attorneys to bring actions to prohibit or punish "offensive" speech. No reasonable lawyer could conclude that these laws might be constitutional. An attorney general should not defend them.
But states rarely pass such laws. People should understand that an AG is not free to pick and choose which laws she'll defend. She will, from time to time, have to defend laws that she disagrees with.
In fact, refusing to defend a law can create unanticipated problems. Say you are in favor of extending civil marriage to same sex couples. You believe that the refusal to do so is unconstitutional. Don't you wish that the United Supreme Court had resolved that issue?
It might have resolved it a year ago in the challenge to California's ban of same sex marriage, but it could not. It could not because the California attorney general and Governor would not defend and the Court did not believe that anyone else had standing to do so. I think the latter decision was wrong but it is quite possible that the issue could have been resolved a year ago - perhaps in favor of same sex marriage - had the elected officials of California done their job.
Cross posted at Purple Wisconsin
Yesterday's Journal Sentinel had a profile on Chris Ahmuty of the ACLU. Have only met him once; seemed like a nice guy. I don't always disagree with the ACLU. i think that they have a left wing view of civil rights that tends to privilege equality over liberty. I sometimes refer to WILL as the anti-ACLU, but that's not quite right, We agree on a variety of, in particular, First and Fourth Amendment issues.
In any event, some of the comments complained about the Journal Sentinel doing a "puff piece" on a liberal. The paper would never do that for a conservative.
It would be less than gracious for me not to point out that it has done at least one - of me. I think that's what Bill Glauber does; he tries to present people on their own terms. You can call these puff pieces but I think there's some value in that. It probably does conservatives good to see that, say, Chris Ahmuty is not a monster. It's good for liberals to see that I'm not either. (At least not all the time.)
In another article, liberal lawyer Lester Pines said that attorney general candidates who said that they would not defend laws that they thought were unconstitutional were wrong. An attorney general should decline to defend state law only if he or she thinks that the argument in favor of a law's constitutionality is frivolous.
I have debated Lester on a number of things and been on opposite sides of litigation a few times. I like him. I disagree with him a lot. Here - he's right.
Let's use an example to illustrate the difference. Say the state passed a law that eliminated the privilege against self incrimination or that allowed local district attorneys to bring actions to prohibit or punish "offensive" speech. No reasonable lawyer could conclude that these laws might be constitutional. An attorney general should not defend them.
But states rarely pass such laws. People should understand that an AG is not free to pick and choose which laws she'll defend. She will, from time to time, have to defend laws that she disagrees with.
In fact, refusing to defend a law can create unanticipated problems. Say you are in favor of extending civil marriage to same sex couples. You believe that the refusal to do so is unconstitutional. Don't you wish that the United Supreme Court had resolved that issue?
It might have resolved it a year ago in the challenge to California's ban of same sex marriage, but it could not. It could not because the California attorney general and Governor would not defend and the Court did not believe that anyone else had standing to do so. I think the latter decision was wrong but it is quite possible that the issue could have been resolved a year ago - perhaps in favor of same sex marriage - had the elected officials of California done their job.
Cross posted at Purple Wisconsin
Thursday, June 12, 2014
Politifact misses again
I thought the recent Politifact on school choice was bad. The fact checkers concluded that, even though the only evidence that exists shows that participation in the choice program improves student learning, Mary Burke's statement that there was "no evidence" to that effect was "mostly true."
We can argue about whether the evidence of improvement is robust or whether the improvement that was found is "enough," but to say that there is "no evidence" is wrong.
One of last week's Politifacts tests the Paul Ryan's claim that Medicare is going broke and that its trust fund will run out in nine years.
The verdict: Mostly false.
The truth: He's right.
Let me explain. Of course, Ryan was not saying that the trust fund would file for bankruptcy protection. It could not so so. He's using the term in its general rather legal term.
A common definition of bankruptcy equates it with insolvency, i.e., a person is "bankrupt" when he or she will be unable to pay his or her debts as they come due. Note that this does not mean that a "bankrupt' person is "penniless" or unable to pay some of her debts.
Medicare is an entitlement program. Congress doesn't appropriate a limited amount for it to spend; it mandates that certain benefits be paid out. Thus, Medicare is obligated to provide specified benefits to eligible persons - no matter what the aggregate cost.
It is undisputed that, under current projections, the amount of revenue currently generated by Medicare taxes and premiums and held in trust for the program (actually nothing is really held in trust but that's another matter) will eventually be insufficient to meet the current legal obligations - the "debts" if you will - of Medicare in 2026.
In other words, Medicare will be unable to pay its bills as they come due. It will be "insolvent." It will, by a common dictionary definition, be bankrupt.
So how does Politifact get around this?
The first move is to say that current law provides for automatic transfers from general - non-Medicare - revenue to cover the program's part B obligations. I still think it's fair to say that Medicare Part B itself will become bankrupt and therefore will need a bailout. That the bailout is already written into the law is certainly a pertinent fact, but it does not change that.
But even that argument does not work for Medicare Part A. There is no automatic bailout there, so what does Politifact say?
First, it points out that - at least initially - Medicare will still be able to pay most of its bills. (As time goes on, the percentage that it will be able to cover will become less and less). But that doesn't mean that the program is not insolvent and, in common parlance, bankrupt. The YMCA just went into bankruptcy. It could pay most of its bills.
Second, it argues that Congress will certainly do something - either reduce coverage or increase taxes - so the program will continue. As a matter of political prediction, this is probably so. (As someone who will be eligible for Medicare in 2026, I certainly hope it is.)
But to say that someone or something that is going bankrupt - becoming insolvent - is likely to be bailed out either by an infusion of revenue or a reduction in obligations does not change the fact that that they are going bankrupt and will require such an intervention. Indeed, the whole point of Ryan's comment was to illustrate that just such an intervention is required, i.e., that something must be done.
Politifact is wrong, in any event, to assume that Congress will "certainly" reduce spending. In fact, Ryan proposed that. He got accused of wanting to roll Grandma off the cliff. Remember, guys?
At worst, Ryan has made a true statement that should be tempered by the recognition that we can fix the problem. It is, of course, silly to criticize him for that since he's been banging on about "fixing" the problem for his entire career. In other words, he has repeatedly recognized both the problem and the need for a fix.
Politifact Wisconsin takes cover in the fact that two other fact checkers have engaged in the same manuevers. In general, I have thought that the local Politifact writers have been better than the national crowd although it is incompletely inconsistent in its use of the silly Truth-O-Meter emoticon.
But this one is itself a whopper.
We can argue about whether the evidence of improvement is robust or whether the improvement that was found is "enough," but to say that there is "no evidence" is wrong.
One of last week's Politifacts tests the Paul Ryan's claim that Medicare is going broke and that its trust fund will run out in nine years.
The verdict: Mostly false.
The truth: He's right.
Let me explain. Of course, Ryan was not saying that the trust fund would file for bankruptcy protection. It could not so so. He's using the term in its general rather legal term.
A common definition of bankruptcy equates it with insolvency, i.e., a person is "bankrupt" when he or she will be unable to pay his or her debts as they come due. Note that this does not mean that a "bankrupt' person is "penniless" or unable to pay some of her debts.
Medicare is an entitlement program. Congress doesn't appropriate a limited amount for it to spend; it mandates that certain benefits be paid out. Thus, Medicare is obligated to provide specified benefits to eligible persons - no matter what the aggregate cost.
It is undisputed that, under current projections, the amount of revenue currently generated by Medicare taxes and premiums and held in trust for the program (actually nothing is really held in trust but that's another matter) will eventually be insufficient to meet the current legal obligations - the "debts" if you will - of Medicare in 2026.
In other words, Medicare will be unable to pay its bills as they come due. It will be "insolvent." It will, by a common dictionary definition, be bankrupt.
So how does Politifact get around this?
The first move is to say that current law provides for automatic transfers from general - non-Medicare - revenue to cover the program's part B obligations. I still think it's fair to say that Medicare Part B itself will become bankrupt and therefore will need a bailout. That the bailout is already written into the law is certainly a pertinent fact, but it does not change that.
But even that argument does not work for Medicare Part A. There is no automatic bailout there, so what does Politifact say?
First, it points out that - at least initially - Medicare will still be able to pay most of its bills. (As time goes on, the percentage that it will be able to cover will become less and less). But that doesn't mean that the program is not insolvent and, in common parlance, bankrupt. The YMCA just went into bankruptcy. It could pay most of its bills.
Second, it argues that Congress will certainly do something - either reduce coverage or increase taxes - so the program will continue. As a matter of political prediction, this is probably so. (As someone who will be eligible for Medicare in 2026, I certainly hope it is.)
But to say that someone or something that is going bankrupt - becoming insolvent - is likely to be bailed out either by an infusion of revenue or a reduction in obligations does not change the fact that that they are going bankrupt and will require such an intervention. Indeed, the whole point of Ryan's comment was to illustrate that just such an intervention is required, i.e., that something must be done.
Politifact is wrong, in any event, to assume that Congress will "certainly" reduce spending. In fact, Ryan proposed that. He got accused of wanting to roll Grandma off the cliff. Remember, guys?
At worst, Ryan has made a true statement that should be tempered by the recognition that we can fix the problem. It is, of course, silly to criticize him for that since he's been banging on about "fixing" the problem for his entire career. In other words, he has repeatedly recognized both the problem and the need for a fix.
Politifact Wisconsin takes cover in the fact that two other fact checkers have engaged in the same manuevers. In general, I have thought that the local Politifact writers have been better than the national crowd although it is incompletely inconsistent in its use of the silly Truth-O-Meter emoticon.
But this one is itself a whopper.
Wednesday, June 11, 2014
On Wolf v. Walker
I have an op-ed in this morning's Milwaukee Journal Sentinel on the merits of resolving the same sex marriage controversy through judicial means. This week - at Right Wisconsin - I have more extended commentary on the likelihood that Judge Crabb's decision will be upheld (no one can really know) and some observations about claiming that there is a fundamental right to have same sex unions included within civil marriage or that the failure to do so denies the equal protection of the laws.
Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).
The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.
In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.
But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.
To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.
So if you have to answer the big questions first. You have to decide what marriage is for.
On the one hand: Is marriage a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?
On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?
These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.
But I still don't believe that judges are in a position to resolve these questions. We have to do it.
Ironically, however, I wonder if judicial resolution of the matter does not help the Republican Party. If public opinion is moving to be in favor of extending civil marriage to gays and lesbians (polls suggest so) and if opposition hurts Republicans (not so clear), then removing the option to do something about it effectively removes it as an issue. Republicans can more or less forget about it (because there is nothing they can do) without upsetting the social conservative base (because there is nothing that they can do).
The comments to the op-ed aren't very persuasive. Yes, I understand that other judges have come out the same way. As I pointed out at Right Wisconsin, the decision in Windsor provides some support for that result. The fact remains that it seems like the Supreme Court is headed for a 5-4 decision one way or the other.
In any event, to say that some judges have ruled in a particular way does not mean that they got it right. One commenter points me to section 1 of the Fourteenth Amendment (but I referred to it as the potential basis for a constitutional mandate) and others say that the majority should not vote on the civil rights of the minority. That is true. I agree that the Constitution sometimes requires that judges strike down laws. I said exactly that and, in fact, I think there are some areas where judges have been far too deferential.
But that doesn't tell us what those civil rights are and, unlike the rights of, say, free speech and free religion, marriage or personal autonomy are not to be found in the Constitution.
To draw analogies to race is sloppy. First, it is clear that the Fourteenth Amendment was about anything, it was about race. Moving beyond that requires additional work. Second, deciding that sexual orientation is just like race for purposes of marriage depends on what you think marriage id for. If you believe that it is just about "love, then you may well find that they are analogous. If you think otherwise, then you may find the analogy inapt.
So if you have to answer the big questions first. You have to decide what marriage is for.
On the one hand: Is marriage a way to establish permanent and exclusive relationships as the norm for heterosexual couples ? Has it been structured to negotiate differences between the way in which men and women experience their sexuality in order to maximize the likelihood that children will be raised in intact homes headed by their biological mothers and fathers? Do we think that gender does not matter with respect to the needs, structure and purposes of intimate relationships? Do we believe that extending civil marriage to same sex couples who cannot procreate with each other will really have no effect on the legal contruct and culural understanding of marriage? Is it really the case that all forms of family are equal and we should not believe that children have a right, if possible, to be raised by their biological mothers and fathers?
On the other: Is it really too late - after no fault divorce - to preserve this view of marriage? Would the extension of civil marriage to same sex couples have any incremental impact on the public understanding or marriage? Would same sex couples simply mimic the norms and expectations that have surrounded marriage as we know it? Do we even want to preserve marriage in that form? Even if we do, is it something that law can accomplish?
These are questions on which reasonable people can and do differ. They are not resolved by name calling or rhetoric. We haven't been doing a very good job of discussing them.
But I still don't believe that judges are in a position to resolve these questions. We have to do it.
Saturday, June 07, 2014
Penzey's and prejudice
So here's a little story about public discourse in Milwaukee.
There's a fellow named Bill Penzey. He owns a spice business and is apparently given to putting his political opinions in cloying newsletters that he calls a "Note from Bill. A recent "Note" got a bit of attention because it seemed to attack most of the people in Waukesha County.
Penzey thinks that Waukesha's growth was fueled on racism - on "white flight" from "diversity" - and that this its current political preferences are a product of this. He suggests that the dominant view in Waukesha somehow represents a "different attitude" that is divorced from its historic commitment to abolitionism - as if there was some continuity between abolitionists and modern day liberals (who often have no problem with treating people based on the color of their skin).
Alex Runner - who hates him some Waukesha - wants to go to bat for this guy. He can't stand the fact that Purple Wisconsin blogger Ashley Schultz let Penzey have it.*
That surprises me. I would think that anyone who wants to start a thoughtful and unencumbered dialogue about the relationship with between the city and the suburbs would see Penzey's "Note" as a sophomoric equivalent of "go east of 124th Street and you'll die" view that I think is too prevalent on the other side of the debate.
But apparently I'm wrong, so let's review what's wrong with the Note from Bill.
Penzey begins by invoking a Milwaukee that never existed. He says that Milwaukee's government was "progressive" in the '50s and decided to" let diversity in." While it is true that there was a large influx of African Americans in the immediate post war period, it is hardly the case that Milwaukee's then-socialist government "embraced" them.
The new arrivals were restricted to the near North side. Now I think that there are lots of reasons to expect new arrivals to cluster - and over time - to stay together, but my friends on the left don't agree. For them, it is worth noting that this "progressive" city government never enacted a fair housing ordinance. That did not happen until 1968 - eight years after they left power. If someone "let diversity in," it wasn't Milwaukee's "progressive" socialists. (Nor did the socialists lay the groundwork for the "rediscovery" of Milwaukee sixty years later, but that's another topic.)
Penzey then goes on to suggest that people left Milwaukee because they did not like this "change" to greater diversity. Surely they would have stayed in their aging bungalows and duplexes and resisted the temptation of green space and newer homes if not for the presence of black people miles away from where most of them lived. No, these people who headed for Waukesha were "not ready" for Milwaukee's enlightenment and, sadly, most (but not all) of their children and grandchildren still aren't.
In response, Ms. Schultz suggested that maybe some of them really did want larger yards and a bit more quiet. Perhaps they wanted good schools and less crime.
Alex Runner is having none of that. He writes:
It's not amazing at all. We shouldn't be surprised that the post war period saw folks moving out of the city without regard to race. Your average American family couldn't have dreamed of a three to four bedroom house on a half to one acre plot of land in an area with good schools and little crime in 1945. Since then, there has been a substantial increase in household wealth with more families owning cars and larger houses. Expressways made it easier to move around the country than it was before. (I know, I know. Mobility is bad.)
In fact, the city had to use residency requirements to prohibit its own employees from decamping. Oh, this desire is ticky tacky, I know, but given a choice, many people - even many minorities - prefer a home of their own with lots of green around it. They want these things, moreover, without regard to the color of the person living next door. Indeed, when I was growing up at 70th and Forest Home, the saying was that Franklin was where you moved when your Dad made foreman.
Nor can the express desire to escape the "problems" of the city be reduced to concerns about race. I know lots of people who wanted to live in the city. They were on board with diversity and wanted to be urban pioneers. But, in the end, they simply couldn't abide crime and poor schools. They weren't willing to sacrifice their families for their politics. They each became the fabled liberal who has been mugged.
This is not to say that no right thinking person would ever want to stay in Milwaukee. It has many charms. But you don't have to be a racist to prefer the suburbs. (Indeed, it'd be interesting to know where Penzey lives. Is it in an area from which the middle class has fled ?)
Penzey then equates this rejection of diversity with a failure to embrace the platform of the Democratic party. In his view, "continued defunding of inner city schools, the congressman's talk of bell curves and lack of effort on the part of those who live in the city, and the legislature's talk of secession" is nothing more than a message that America is only for some and not for others. This, he said, could only be a way to get votes in Waukesha.
Maybe it would be if any of it had ever happened. Inner city schools have not been defunded. In fact, spending has steadily increased over the years. No "congressman" (he means Paul Ryan) spoke of bell curves or even, strictly speaking, lack of effort. Ryan spoke about disconnection from the world of work and the cultural disarray that frustrates policy. So do many black leaders.
Ryan did cite the work of Charles Murray (and liberals like Bill Putnam) in support of his views. Murray did write a misunderstood and misrepresented, albeit flawed, book called The Bell Curve. But Ryan was referring to his more recent work, Coming Apart, that tracks the relationship between cultural decline and poverty in white communities. The Wisconsin legislature hasn't "talked" of secession - other than to belittle the idea.
But even if Penzey had accurately described the world, failure to want to spend even more money on schools that have not improved as they have received more and more money is not be racist. Recognition that things like inner city crime and fatherless kids make it all but impossible for any intervention on the part of the government to succeed is not, as Penzey says, a claim that America exists only for some. It is a difference of opinion on what it will take to make its promise a reality for everyone.
There are more things in heaven and earth than are dreamt of in Bill Penzey's philosophy.
Indeed, Penzey seems to be ripe for the same unthinking criticism he levies at others. I note that his company's stores are all in ... the suburbs !
Has he drawn an iron ring around Milwaukee and refused to bring his coriander across it?
Mr. Penzey, bring your spices to the masses on the other side of the digital divide who cannot order them online. Mr. Penzey, tear down that wall! (I know that Penzey's wants to build a plant in Northridge. But that's a pretty good location for an industrial use given its relative proximity to the same evil expressway that facilitated white flight. Freeways also help fill those online sales of oregano.)
The point is not that Penzey is a closet racist. It is to remind him that perhaps he should extend to others the presumption of good faith that I am sure he expects for himself.
I wouldn't endorse a boycott of Penzey's and its owner has a right to his opinion. But here's the thing.
Bill Penzey chose to insult almost an entire county. That seems uninformed and ungenerous. In its own way, it is a failure to embrace diversity and reflects fear of "the other" - defined here as people that don't share his junior high liberalism. If people don't want to buy his spices, he shouldn't be surprised.
Cooks can change the world in more ways than one.
* Full disclosure: I was recently elected to the board of Ms. Schultz' employer, St. Anthony's School. I believe that I recently met her, but I don't know her.
There's a fellow named Bill Penzey. He owns a spice business and is apparently given to putting his political opinions in cloying newsletters that he calls a "Note from Bill. A recent "Note" got a bit of attention because it seemed to attack most of the people in Waukesha County.
Penzey thinks that Waukesha's growth was fueled on racism - on "white flight" from "diversity" - and that this its current political preferences are a product of this. He suggests that the dominant view in Waukesha somehow represents a "different attitude" that is divorced from its historic commitment to abolitionism - as if there was some continuity between abolitionists and modern day liberals (who often have no problem with treating people based on the color of their skin).
Alex Runner - who hates him some Waukesha - wants to go to bat for this guy. He can't stand the fact that Purple Wisconsin blogger Ashley Schultz let Penzey have it.*
That surprises me. I would think that anyone who wants to start a thoughtful and unencumbered dialogue about the relationship with between the city and the suburbs would see Penzey's "Note" as a sophomoric equivalent of "go east of 124th Street and you'll die" view that I think is too prevalent on the other side of the debate.
But apparently I'm wrong, so let's review what's wrong with the Note from Bill.
Penzey begins by invoking a Milwaukee that never existed. He says that Milwaukee's government was "progressive" in the '50s and decided to" let diversity in." While it is true that there was a large influx of African Americans in the immediate post war period, it is hardly the case that Milwaukee's then-socialist government "embraced" them.
The new arrivals were restricted to the near North side. Now I think that there are lots of reasons to expect new arrivals to cluster - and over time - to stay together, but my friends on the left don't agree. For them, it is worth noting that this "progressive" city government never enacted a fair housing ordinance. That did not happen until 1968 - eight years after they left power. If someone "let diversity in," it wasn't Milwaukee's "progressive" socialists. (Nor did the socialists lay the groundwork for the "rediscovery" of Milwaukee sixty years later, but that's another topic.)
Penzey then goes on to suggest that people left Milwaukee because they did not like this "change" to greater diversity. Surely they would have stayed in their aging bungalows and duplexes and resisted the temptation of green space and newer homes if not for the presence of black people miles away from where most of them lived. No, these people who headed for Waukesha were "not ready" for Milwaukee's enlightenment and, sadly, most (but not all) of their children and grandchildren still aren't.
In response, Ms. Schultz suggested that maybe some of them really did want larger yards and a bit more quiet. Perhaps they wanted good schools and less crime.
Alex Runner is having none of that. He writes:
Schultz admits that her parents partook in the flight from Milwaukee, saying that they simply wanted some "quiet" and "more land." In other words, it was just a coincidence that all the white people realized their yards were too small at the exact same time minorities started moving in. Amazing!
It's not amazing at all. We shouldn't be surprised that the post war period saw folks moving out of the city without regard to race. Your average American family couldn't have dreamed of a three to four bedroom house on a half to one acre plot of land in an area with good schools and little crime in 1945. Since then, there has been a substantial increase in household wealth with more families owning cars and larger houses. Expressways made it easier to move around the country than it was before. (I know, I know. Mobility is bad.)
In fact, the city had to use residency requirements to prohibit its own employees from decamping. Oh, this desire is ticky tacky, I know, but given a choice, many people - even many minorities - prefer a home of their own with lots of green around it. They want these things, moreover, without regard to the color of the person living next door. Indeed, when I was growing up at 70th and Forest Home, the saying was that Franklin was where you moved when your Dad made foreman.
Nor can the express desire to escape the "problems" of the city be reduced to concerns about race. I know lots of people who wanted to live in the city. They were on board with diversity and wanted to be urban pioneers. But, in the end, they simply couldn't abide crime and poor schools. They weren't willing to sacrifice their families for their politics. They each became the fabled liberal who has been mugged.
This is not to say that no right thinking person would ever want to stay in Milwaukee. It has many charms. But you don't have to be a racist to prefer the suburbs. (Indeed, it'd be interesting to know where Penzey lives. Is it in an area from which the middle class has fled ?)
Penzey then equates this rejection of diversity with a failure to embrace the platform of the Democratic party. In his view, "continued defunding of inner city schools, the congressman's talk of bell curves and lack of effort on the part of those who live in the city, and the legislature's talk of secession" is nothing more than a message that America is only for some and not for others. This, he said, could only be a way to get votes in Waukesha.
Maybe it would be if any of it had ever happened. Inner city schools have not been defunded. In fact, spending has steadily increased over the years. No "congressman" (he means Paul Ryan) spoke of bell curves or even, strictly speaking, lack of effort. Ryan spoke about disconnection from the world of work and the cultural disarray that frustrates policy. So do many black leaders.
Ryan did cite the work of Charles Murray (and liberals like Bill Putnam) in support of his views. Murray did write a misunderstood and misrepresented, albeit flawed, book called The Bell Curve. But Ryan was referring to his more recent work, Coming Apart, that tracks the relationship between cultural decline and poverty in white communities. The Wisconsin legislature hasn't "talked" of secession - other than to belittle the idea.
But even if Penzey had accurately described the world, failure to want to spend even more money on schools that have not improved as they have received more and more money is not be racist. Recognition that things like inner city crime and fatherless kids make it all but impossible for any intervention on the part of the government to succeed is not, as Penzey says, a claim that America exists only for some. It is a difference of opinion on what it will take to make its promise a reality for everyone.
There are more things in heaven and earth than are dreamt of in Bill Penzey's philosophy.
Indeed, Penzey seems to be ripe for the same unthinking criticism he levies at others. I note that his company's stores are all in ... the suburbs !
Has he drawn an iron ring around Milwaukee and refused to bring his coriander across it?
Mr. Penzey, bring your spices to the masses on the other side of the digital divide who cannot order them online. Mr. Penzey, tear down that wall! (I know that Penzey's wants to build a plant in Northridge. But that's a pretty good location for an industrial use given its relative proximity to the same evil expressway that facilitated white flight. Freeways also help fill those online sales of oregano.)
The point is not that Penzey is a closet racist. It is to remind him that perhaps he should extend to others the presumption of good faith that I am sure he expects for himself.
I wouldn't endorse a boycott of Penzey's and its owner has a right to his opinion. But here's the thing.
Bill Penzey chose to insult almost an entire county. That seems uninformed and ungenerous. In its own way, it is a failure to embrace diversity and reflects fear of "the other" - defined here as people that don't share his junior high liberalism. If people don't want to buy his spices, he shouldn't be surprised.
Cooks can change the world in more ways than one.
* Full disclosure: I was recently elected to the board of Ms. Schultz' employer, St. Anthony's School. I believe that I recently met her, but I don't know her.
Friday, June 06, 2014
June 6, 1944
I have always been fascinated by the invasion of Normandy. What form of courage did it take to run into what must have seemed like certain death ? On certain beaches, it almost was. What made thousands of men press on into a charnel house ? Was it the lack of an alternative? A sense of duty? A commitment to their fellows?
I have always wondered if I could have done it. To be honest, I have a hard time imagining so. Perhaps it's one of those things that you can't do unless you have to.
Thankfully, I'll never know.
What type of national resolve was required to undertake an operation that was sure to result in thousands of deaths? We still read the names of the victims of 9-11. But we lost that many in one day on the beaches of Normandy. And it was only the beginning of only one part of unbelievably bloody crusade.
Could we do it today? The American military has performed bravely in the Persian Gulf and in Afghanistan, but this was a challenge of a different order. Perhaps it is enough to express gratitude that a new Operation Overlord has not been necessary.
Even as we marvel at what happened seventy years ago, we enjoy the knowledge that it worked; that the sacrifices it required were not in vain. But that was every much in doubt on June 6, 1944 and, had the Germans responded in different ways, we may very well have been pushed back into the sea. Indeed, Eisenhower wrote a note taking responsibility for the failure of the invasion. Just in case. Perhaps he thought he'd be unable to do it had the invasion actually failed.
I doubt that the greatest generation - now almost all gone - was really made of sterner stuff. But, from this distant vantage point, it certainly seems that way.
Cross posted at Purple Wisconsin.
I have always wondered if I could have done it. To be honest, I have a hard time imagining so. Perhaps it's one of those things that you can't do unless you have to.
Thankfully, I'll never know.
What type of national resolve was required to undertake an operation that was sure to result in thousands of deaths? We still read the names of the victims of 9-11. But we lost that many in one day on the beaches of Normandy. And it was only the beginning of only one part of unbelievably bloody crusade.
Could we do it today? The American military has performed bravely in the Persian Gulf and in Afghanistan, but this was a challenge of a different order. Perhaps it is enough to express gratitude that a new Operation Overlord has not been necessary.
Even as we marvel at what happened seventy years ago, we enjoy the knowledge that it worked; that the sacrifices it required were not in vain. But that was every much in doubt on June 6, 1944 and, had the Germans responded in different ways, we may very well have been pushed back into the sea. Indeed, Eisenhower wrote a note taking responsibility for the failure of the invasion. Just in case. Perhaps he thought he'd be unable to do it had the invasion actually failed.
I doubt that the greatest generation - now almost all gone - was really made of sterner stuff. But, from this distant vantage point, it certainly seems that way.
Cross posted at Purple Wisconsin.
Wednesday, June 04, 2014
More on school choice
My colleague CJ Szafir and I have a piece up on National Review regarding threats by the US Department of Justice against school choice.
Regarding my response to Politifact, let me extend my remarks.
I was interested in the weight that Politifact put on the fact that the increase in reading scores among choice students was in the fourth year when test scores became public. This doesn't strike me as a significant criticism of the results because both MPS and MPCP schools were subject to that requirement.
The idea that the increase in high school graduation rates can be dismissed because some students returned to an MPS school seems even an weaker criticism. Most choice students will not graduate from a private high school because, at least until recently (and still to a significant degree), the voucher amount was inadequate to cover the cost of high school education. Still, the fact that someone was a choice student significantly increased the likelihood that he or she would graduate from high school.
How that can be "no evidence" of improved student learning is beyond me.
I understand that, in attempting to defend their rating, Politifact has cited Patrick Wolf - one of the researchers involved in the Arkansas study (and who remains a passionate advocate for choice) - saying that to say there was no evidence of improvement is "a bit of a stretch." That's passingly odd. Something that is a stretch can hardly be "mostly true."
Again, much of the problem lies in the Truth-O-Meter emoticons which are not applied consistently and probably can't be. As I have written before, the series - at least by local writers - is worth having. I often learn things. The Truth-O-Meter is entertainment and not news. Here it obscured rather than illuminated.
Cross posted at Purple Wisconsin.
Regarding my response to Politifact, let me extend my remarks.
I was interested in the weight that Politifact put on the fact that the increase in reading scores among choice students was in the fourth year when test scores became public. This doesn't strike me as a significant criticism of the results because both MPS and MPCP schools were subject to that requirement.
The idea that the increase in high school graduation rates can be dismissed because some students returned to an MPS school seems even an weaker criticism. Most choice students will not graduate from a private high school because, at least until recently (and still to a significant degree), the voucher amount was inadequate to cover the cost of high school education. Still, the fact that someone was a choice student significantly increased the likelihood that he or she would graduate from high school.
How that can be "no evidence" of improved student learning is beyond me.
I understand that, in attempting to defend their rating, Politifact has cited Patrick Wolf - one of the researchers involved in the Arkansas study (and who remains a passionate advocate for choice) - saying that to say there was no evidence of improvement is "a bit of a stretch." That's passingly odd. Something that is a stretch can hardly be "mostly true."
Again, much of the problem lies in the Truth-O-Meter emoticons which are not applied consistently and probably can't be. As I have written before, the series - at least by local writers - is worth having. I often learn things. The Truth-O-Meter is entertainment and not news. Here it obscured rather than illuminated.
Cross posted at Purple Wisconsin.
Tuesday, June 03, 2014
Pants on Fire for Politifact
Every once in a while there is a Politifact whose little emoticon (true, mostly true, pants on fire, etc.) is so gobsmackingly wrong that it leaves you speechless. Here’s the latest.
The statement to be checked is an observation by gubernatorial candidate Mary Burke that Wisconsin’s school choice program “has no research that shows its going to improve student learning.” Writing for Politifact, Tim Kertscher rates that the statement “mostly true.”
He’s got it completely wrong. In fact, the only evidence that exists on whether the voucher program improves student learning says that it does.
In other words, the cute little emoticon (an obfuscatory bit of "entertainment" fluff which I desperately wish the paper would get rid of) is pretty much backward.
Here’s half the mistake. Because the average of all MPS scores (as reported by the Department of Public Instruction and essentially republished by the Public Policy Forum) is higher than the average of all voucher students, Politifact concludes that this “gives a clear edge to public school students over voucher students.”
No it doesn’t. Not even close.
Any researcher will tell you that in assessing student achievement as a result of some program or instructional strategy, one must control for the socioeconomic status and other relevant characteristics of the students being compared. In other words, it is essential to compare like to like; apples to apples, if you will.
Researchers also will tell you that, in assessing whether student learning has“improved,” some type of longitudinal study is required, i.e., you must determine whether the achievement of particular students who have been exposed to the innovation under study approved over a period of time. A snapshot of test scores doesn’t do that. Even a series of annual snapshots of large groups of students doesn’t do that because we can’t be sure that the groups we are comparing consist of the same students from year to year.
As Paul Peterson, Henry Lee Shattuck Professor of Government at Harvard, explains, simply reporting the “average math and reading scores of all students” “often [says] less about the quality of instruction at the school than about the students’ family backgrounds.” He also calls for a “growth-based measuring stick.”
The DPI and PPF reports don’t do either of these things. They compare all (or almost all) MPS students to voucher students who, until quite recently, were all low income (some working class families are now eligible) and likely to be children whose parent were dissatisfied with their performance in public school. Even if the percentage of disadvantaged and minority students are similar for both groups as a whole, one has to control for relevant factors and crunch the numbers to determine whether one group has "outperformed" the other.
Neither report attempts to measure whether the improvement of students who move to a choice school compared to comparable children who remain in a public school. (In fact, at least for PPF, there would be no way to do so with the data available to them.)
Neither report attempts to measure whether the improvement of students who move to a choice school compared to comparable children who remain in a public school.
We could go on. It is nonsense, for example, to compare the test scores of public and voucher students in Racine in 2014 because the choice program had only just begun in Racine and the voucher students had been in their new schools for only a few weeks.
I would add that it is meaningless to treat voucher schools as a group since they are not subject to common control and differ dramatically from one another. If, in fact, well-run choice schools improve student performance then it would also be wrong to say that there is “no evidence” the program works.
So the numbers that Politifact says give public school students a “clear edge” do no such thing.
There are, as far as I know, four studies that attempt to do what DPI and PPF do not. One very small study in the early years of the voucher program – when there was a lottery to participate in Milwaukee – showed that students who got into choice schools did better than those who lost the lottery. Two more recent studies, which Politifact cites but then ignores, shows that the presence of school choice is associated with improvement of test scores in MPS. That was an early rationale for school choice; it was hoped that competitive pressure would cause public schools to improve.
And then there’s the University of Arkansas School Choice Demonstration Project study – the only real study of whether the choice program“improved student learning.” The SCDP study found that Choice students were significantly more likely to graduate and go on to college. The study found that voucher students showed a greater increase in reading scores than MPS students. (That this happened in the last year of the study and the first year in which voucher schools had to, like MPS, publicize their scores doesn’t change that.) There were some other advantages for voucher students but there were not statistically significant, i.e., the researchers could not say that they were not a product of chance.
You can dismiss the statistically significant improvements as “too small” although they are at least as robust as the evidence for a variety of educational nostrums that are commonly touted. And these gains are accomplished at a bit over half the cost of a public school education. You can quibble over what caused the measured improvements. But the fact remains that they are “evidence”of improvement that Mary Burke falsely said does not exist.
How Burke’s statement can possibly be called “mostly true”is beyond me. The Politifact author regards the evidence for improvement as "thin." I'm not sure that statistically significant findings of improvement in the only properly designed study that exists can be so readily dismissed. But let's grant him this . Concerns about the extent of improvements or what really caused it are worth discussing.
But she said there was no evidence. That is false. It cannot be mostly true. This Politifact was not fact checking. It was an imposition of opinion.
Cross posted at Purple Wisconsin
Monday, June 02, 2014
All Doe all the time, part II
One of my colleagues raises an interesting question. Can the prosecutors even seek to overturn Judge Peterson's decision quashing the search warrants and subpoenas that were served in the course of the now-halted probe?The lead prosecutor asked for clarification on that. Here is what Judge Randa said in an order issued Friday afternoon:
The injunction bars any attempt by Schmitz (or any other
defendant) to obtain compliance with any order, subpoena, or other process
issued in furtherance of the investigation, but it does not extend to legal proceedings, including
these federal court proceedings, that do not seek to enforce such compliance. (Emphasis added.)
Doesn't this suggest that it does apply to legal proceedings
that do seek to enforce compliance? Wouldn't seeking to overturn Judge
Peterson's order quashing subpoenas and "other process" be exactly
that? Ordinarily I'd be reluctant to read it that way, except that's the way it reads. The reasonng, I suppose, is that forcing someone to litigate state law issues presented by an unconstitutional litigation itself comprises constitutional harm.
Cross posted at Purple Wisconsin.
Sunday, June 01, 2014
Public housing by any other name
We all know how affirmative action became diversity and global warming morphed into climate change. Environmental restrictions became sustainability and the gatekeepers of racial and sexual propriety have decreed, cancelled and reformulated a vast etiquette of how to refer to a racial and other minorities.
Here's the latest. Last week's Journal Sentinel featured the following headline:
$ 10 million complex bolsters Milwaukee's supportive housing
What is "supportive housing?"
Here's the latest. Last week's Journal Sentinel featured the following headline:
$ 10 million complex bolsters Milwaukee's supportive housing
What is "supportive housing?"
According to the article, it turns out to be mean that the building's "units will be subsidized and that no resident will be paying more than 30% of his or her income for rent."
We used to call that public housing. Why the change in terminology?
I suspect it is because the old term has come to have negative connotations. Public housing concentrates very low income people who, for a variety of reasons, neighbors will fear aremore likely to engage in anti-social behavior or who, in fact, may actually engage in such behavior having an adverse impact on the surrounding area.
We can argue about whether this really happens or whether the fears are reasonable. We can think of ways to respond to this real or exaggerated problem. But changing the name won't accomplish anything.
Cross posted at Purple Wisconsin.
Cross posted at Purple Wisconsin.
Saturday, May 31, 2014
Where do zombies come from?
So here's a new one - the problem of "zombie properties" - a name that seems to designed to obscure rather than illuminate. An entire front page article in this week in the Journal Sentinel yielded almost no information. Why are there 400 houses in foreclosure that no one wants? The article treats this as a mystery. But that can't be.
Here's the problem. Banks lend money to people to buy houses and they do not repay the loan. The houses go into foreclosure but the process takes forever and in the meantime the properties are left to deteriorate and this causes problems in the neighborhood.
One can imagine two contending explanations. The first is that the whole lending process became too complicated. A bunch of hubristic whiz kids thought they could eliminate risk through algorithms rather than traditional tools like underwriting and requiring down payments. This involved creating a complicated ownership structure for packaged loans - so no one would be exposed to excessive risk - that is hard to unravel. For these inner city properties, where the homeowners have the least to lose by walking away and the economics of rehabilitation and resale are the toughest, this leads to homes where not only the owner but the very project of foreclosure, rehabilitation and resale is underwater. At some point, it is literally in no one's interest to reclaim the house and it is razed.
My guess is that there is some truth in this, but it is a second order explanation. How did it happen in the first place?
Here's a possible answer. We don't need concepts like the living dead to explain this. Indeed, there is a sense in which the metaphor is exactly wrong. The problem is not that these properties refuse to die but that there are truly and completely dead, yet maintained on life support. They are victims of the fiction that they still belong to the people that bought them. Legally, they do. Economically, they don't and may never have.
On this view, the problem is that there are no real property interests in these homes. The owners don't have one because they probably paid little down and, in any event, have no equity interests in the property. In a misguided attempt to promote home ownership, people were encouraged to buy properties that they not only couldn't afford but in which they had nothing to lose. This was not home ownership in the real sense; it was speculation for those who could least afford it.
The lenders don't have a property interest because they required almost nothing down and lent to people who couldn't really afford the home. As a result, they can't hope to get their money back through foreclosure and resale. Although you might expect the bank to move to cut its losses, the cumbersome nature of the foreclosure process - full of procedural requirements to protect the consumer - raise the transactional costs of recovering the property. It doesn't take long - foreclosed properties are notoriously abused by "owners" with no real interest to them - before many of these properties may not be worth reclaiming. While the city's Department of Neighborhood Services may not understand why the lenders don't figure out how to move faster to recover the properties, it's really not that hard to figure out.
I understand that we are supposed to chalk this all up to greed, but there are problems with that. It is not a good strategy - if you want to accumulate wealth beyond the dreams of avarice - to lend money to people who can't pay it back. While the desire to make money in a booming market can cloud one's judgment about the creditworthiness of a debtor, that's not all that was going on here.
Part of the problem is the government encouraged this type of lending. It threatened lenders with enforcement actions if they were "too strict" and imposed obligations to affirmatively further affordable housing. (Remember Barney Frank's infamous inclination to "roll the dice" on affordable housing?) Even when there was no legal requirement to provide affordable housing a lot of lenders found it expedient to accommodate organized pressure to make such loans - just as it is ofter easier today to pay tribute to activists for "sustainability" and "diversity."
To be sure, unscrupulous originators took advantage but there had to be something - a willingness to make subprime loans with insufficient collateral - for them to take advantage of in the first place. And, while the housing collapse was limited to this segment of the market, it is in this segment of the market that a collapse in values is most likely to lead to houses that not literally no one wants. Perhaps there are zombie homes being razed in Mequon and Brookfield, but I haven't yet heard of them.
If this second hypothesis is true, we have quite the irony.
These were policies that left-wing community organizers organizations and liberal politicians supported. Like Mary Shelley's Frankenstein was a product of scientific hubris gone wrong, the zombie properties are of their own making. "Organizing" does not make what won't work viable.
My guess is that the preferred solution of the left wing organizations like Common Ground would be to try to somehow - through litigation or legislation or negotiation - get the banks to throw good money after bad. Some form of reinvestment in these properties - perhaps subsidized - may be warranted but you have to understand the cost of doing so. Making the banks responsible for neighborhood decline is likely to keep the banks out of the neighborhood from now on. Once bitten, twice shy. Selling homes to people who still can't afford them and who will still be required to put little or no money down will work no better this time than it did before. There needs to be another model - one that requires homeowners to have more of a stake in a neighborhood. That will require demanding more.
But before you get there, someone has to reacquire the properties. It seems like the city and banks are playing a game of chicken. I think I know who'll win that.
Cross posted at Purple Wisconsin.
Here's the problem. Banks lend money to people to buy houses and they do not repay the loan. The houses go into foreclosure but the process takes forever and in the meantime the properties are left to deteriorate and this causes problems in the neighborhood.
One can imagine two contending explanations. The first is that the whole lending process became too complicated. A bunch of hubristic whiz kids thought they could eliminate risk through algorithms rather than traditional tools like underwriting and requiring down payments. This involved creating a complicated ownership structure for packaged loans - so no one would be exposed to excessive risk - that is hard to unravel. For these inner city properties, where the homeowners have the least to lose by walking away and the economics of rehabilitation and resale are the toughest, this leads to homes where not only the owner but the very project of foreclosure, rehabilitation and resale is underwater. At some point, it is literally in no one's interest to reclaim the house and it is razed.
My guess is that there is some truth in this, but it is a second order explanation. How did it happen in the first place?
Here's a possible answer. We don't need concepts like the living dead to explain this. Indeed, there is a sense in which the metaphor is exactly wrong. The problem is not that these properties refuse to die but that there are truly and completely dead, yet maintained on life support. They are victims of the fiction that they still belong to the people that bought them. Legally, they do. Economically, they don't and may never have.
On this view, the problem is that there are no real property interests in these homes. The owners don't have one because they probably paid little down and, in any event, have no equity interests in the property. In a misguided attempt to promote home ownership, people were encouraged to buy properties that they not only couldn't afford but in which they had nothing to lose. This was not home ownership in the real sense; it was speculation for those who could least afford it.
The lenders don't have a property interest because they required almost nothing down and lent to people who couldn't really afford the home. As a result, they can't hope to get their money back through foreclosure and resale. Although you might expect the bank to move to cut its losses, the cumbersome nature of the foreclosure process - full of procedural requirements to protect the consumer - raise the transactional costs of recovering the property. It doesn't take long - foreclosed properties are notoriously abused by "owners" with no real interest to them - before many of these properties may not be worth reclaiming. While the city's Department of Neighborhood Services may not understand why the lenders don't figure out how to move faster to recover the properties, it's really not that hard to figure out.
I understand that we are supposed to chalk this all up to greed, but there are problems with that. It is not a good strategy - if you want to accumulate wealth beyond the dreams of avarice - to lend money to people who can't pay it back. While the desire to make money in a booming market can cloud one's judgment about the creditworthiness of a debtor, that's not all that was going on here.
Part of the problem is the government encouraged this type of lending. It threatened lenders with enforcement actions if they were "too strict" and imposed obligations to affirmatively further affordable housing. (Remember Barney Frank's infamous inclination to "roll the dice" on affordable housing?) Even when there was no legal requirement to provide affordable housing a lot of lenders found it expedient to accommodate organized pressure to make such loans - just as it is ofter easier today to pay tribute to activists for "sustainability" and "diversity."
To be sure, unscrupulous originators took advantage but there had to be something - a willingness to make subprime loans with insufficient collateral - for them to take advantage of in the first place. And, while the housing collapse was limited to this segment of the market, it is in this segment of the market that a collapse in values is most likely to lead to houses that not literally no one wants. Perhaps there are zombie homes being razed in Mequon and Brookfield, but I haven't yet heard of them.
If this second hypothesis is true, we have quite the irony.
These were policies that left-wing community organizers organizations and liberal politicians supported. Like Mary Shelley's Frankenstein was a product of scientific hubris gone wrong, the zombie properties are of their own making. "Organizing" does not make what won't work viable.
My guess is that the preferred solution of the left wing organizations like Common Ground would be to try to somehow - through litigation or legislation or negotiation - get the banks to throw good money after bad. Some form of reinvestment in these properties - perhaps subsidized - may be warranted but you have to understand the cost of doing so. Making the banks responsible for neighborhood decline is likely to keep the banks out of the neighborhood from now on. Once bitten, twice shy. Selling homes to people who still can't afford them and who will still be required to put little or no money down will work no better this time than it did before. There needs to be another model - one that requires homeowners to have more of a stake in a neighborhood. That will require demanding more.
But before you get there, someone has to reacquire the properties. It seems like the city and banks are playing a game of chicken. I think I know who'll win that.
Cross posted at Purple Wisconsin.
Friday, May 30, 2014
All Doe all the time, part one
My op-ed in Sunday's Crossroads on the current sorry state of the permanent John Doe investigation into one side of our political divide can be found here. I elaborated on the rumors of settlement negotiations here. More on that later.
A few responses to points made in the comments to the op-ed.
First, I am taking no position on whether anyone has or has not acted unethically. Not everything can be reduced to a morality play. I am saying that the decision to pursue this reflected an insufficient regard for First Amendment values and poor judgment about what can and cannot be accomplished in this way. Whether it was accompanied by unethical behavior or was partisan is something I'll leave to others.
Second, I am not overly impressed that the investigation was purportedly blessed by the GAB. To get approval of a superintending agency of retired and (very) part time judges does not overcome the glaring problems with the investigation. An appeal to authority can't trump what is right before our eyes. (The same thing applies to the formal cooperation of other DAs.)
In any event, it may be that the Doe was not initiated but joined by the GAB and at least in a departure from - if not in violation of - its statutorily mandated procedures.
By way of counterpoint (an appropriate thing to do), the Journal Sentinel ran a column by Bill Lueders which had originally appeared online. He begins by referring to Sen. Mike Ellis' recent lubricated soliloquy - caught on tape by an investigative journalist - to create an outside group to attack his opponent.
Lueders suggests that everyone assumed that Ellis' plan - which he never carried out - would be illegal. He argues that Judge Randa's decision shutting down the John Doe because the state cannot constitutionally restrict issue advocacy changes that - that it "alters the campaign landscape" in some fundamental way.
I do think the decision is an important doctrinal clarification, but it may not mean that what Ellis talked about would be legal.
What Randa said is that the state may only restrict express advocacy. As defined by the United States Supreme Court, this is speech that is susceptible of no interpretation other than as a call to elect or defeat a candidate.
It is unclear whether Ellis' cocktail hour disquisition referred to express advocacy. Issue advocacy can be - and usually is - critical of a candidate but does so only in the context of taking a position on some issue. While some people think of this as a distinction without a difference, robust protection of freedom of speech requires that people - and organizations of people - have the right to speak freely about issues at election time - even if that means highlighting the position of elected officials and candidates.
The rest of the horribles paraded by Lueders are just wrong. For example, the claim of Paul S. Ryan of the Campaign Legal Center that outside groups could pay for a candidate's campaign staff, rent and food bills is ridiculous. Randa's decision does not say that express advocacy is the only form of in-kind campaign contribution that can be made by an outside group. It says that issue advocacy is - unlike paying rent or salaries - constitutionally protected and cannot become less protected because of some degree of coordination with a candidate.
Cross posted at Purple Wisconsin.
A few responses to points made in the comments to the op-ed.
First, I am taking no position on whether anyone has or has not acted unethically. Not everything can be reduced to a morality play. I am saying that the decision to pursue this reflected an insufficient regard for First Amendment values and poor judgment about what can and cannot be accomplished in this way. Whether it was accompanied by unethical behavior or was partisan is something I'll leave to others.
Second, I am not overly impressed that the investigation was purportedly blessed by the GAB. To get approval of a superintending agency of retired and (very) part time judges does not overcome the glaring problems with the investigation. An appeal to authority can't trump what is right before our eyes. (The same thing applies to the formal cooperation of other DAs.)
In any event, it may be that the Doe was not initiated but joined by the GAB and at least in a departure from - if not in violation of - its statutorily mandated procedures.
By way of counterpoint (an appropriate thing to do), the Journal Sentinel ran a column by Bill Lueders which had originally appeared online. He begins by referring to Sen. Mike Ellis' recent lubricated soliloquy - caught on tape by an investigative journalist - to create an outside group to attack his opponent.
Lueders suggests that everyone assumed that Ellis' plan - which he never carried out - would be illegal. He argues that Judge Randa's decision shutting down the John Doe because the state cannot constitutionally restrict issue advocacy changes that - that it "alters the campaign landscape" in some fundamental way.
I do think the decision is an important doctrinal clarification, but it may not mean that what Ellis talked about would be legal.
What Randa said is that the state may only restrict express advocacy. As defined by the United States Supreme Court, this is speech that is susceptible of no interpretation other than as a call to elect or defeat a candidate.
It is unclear whether Ellis' cocktail hour disquisition referred to express advocacy. Issue advocacy can be - and usually is - critical of a candidate but does so only in the context of taking a position on some issue. While some people think of this as a distinction without a difference, robust protection of freedom of speech requires that people - and organizations of people - have the right to speak freely about issues at election time - even if that means highlighting the position of elected officials and candidates.
The rest of the horribles paraded by Lueders are just wrong. For example, the claim of Paul S. Ryan of the Campaign Legal Center that outside groups could pay for a candidate's campaign staff, rent and food bills is ridiculous. Randa's decision does not say that express advocacy is the only form of in-kind campaign contribution that can be made by an outside group. It says that issue advocacy is - unlike paying rent or salaries - constitutionally protected and cannot become less protected because of some degree of coordination with a candidate.
Cross posted at Purple Wisconsin.
Monday, May 26, 2014
More reflections on Brown and the "Iron Ring"
As I noticed in my last post here, back to the future seems to be a norm in politics.
Last weekend, the local left pretended it was 1954 on questions of racial balance in school. My Purple Wisconsin colleague Jim Rowen chose to genuflect before a time honored relic of the American left - the so called "iron ring" thrown around Milwaukee in the 1950s.
The "iron ring" amounted to this. The state prevented the city from forcing proximate local communities from joining the city against their will. In this, it did anticipate much of our current controversy over regionalism. Advocates of the city seem to believe that support for the city means forcing others to pay for whatever stupidity city politicians want to promote. It's never going to happen.
But the larger point is that the "iron ring" was drawn too late. As Russell Knetzger pointed out in last Sunday's Crossroads, Milwaukee nevertheless managed to annex huge amounts of real estate. For its population and age, the city has a huge geographic footprint. I'm not sure if there are still farms within the city limits, but - as recently as thirty years ago (over a period in which city population has been more or less stable) - there were.
In my last point, I wrote about the second generation school desegregation litigation in the 80s. One of the points that the defense made in that case was Knetzger's. The city managed to annex huge swaths of real estate to the north and west of the city center. Indeed, we introduced piles of materials from the 50s and 60s that Milwaukee promoted this area as "the suburb in the city." Indeed, an earlier use of the term "iron ring" was to say the the city would not provide services such as water (as if Milwaukee owns the lake; an odd position for public trust zealots) to suburban communities.
The African American population moved into this area - in a pie shaped pattern emanating from the city center. This is not unique to Milwaukee. We introduced evidence that showed the exact same pattern of black outmigration patterns in every other midwest industrial city. People who live an area of initial settlement do not disperse randomly. They tend to remain in proximity to friends and families. Indeed, that type of outmigration is not limited to African Americans. Other ethnic groups have followed a similar -albeit less pronounced - pattern and there is evidence of Hispanic migration to the southwest.
That this population remained in the city is evidence of how much the city was permitted to expand - generally over the opposition of those brought within its borders.
I understand that it is doctrine among the local left that this opposition can be dismissed as racist, This is reductive and lazy. People moved to the suburbs because they wanted a new house and a yard. They did not wish to remain in the city because they wanted self-determination for their new communities.
I understand that, for folks like Jim, self-determination that allows people to avoid paying for his policy preferences is anathema. Maybe he's right. But folks who take exception are not racist for them.
Cross posted at Purple Wisconsin.
Last weekend, the local left pretended it was 1954 on questions of racial balance in school. My Purple Wisconsin colleague Jim Rowen chose to genuflect before a time honored relic of the American left - the so called "iron ring" thrown around Milwaukee in the 1950s.
The "iron ring" amounted to this. The state prevented the city from forcing proximate local communities from joining the city against their will. In this, it did anticipate much of our current controversy over regionalism. Advocates of the city seem to believe that support for the city means forcing others to pay for whatever stupidity city politicians want to promote. It's never going to happen.
But the larger point is that the "iron ring" was drawn too late. As Russell Knetzger pointed out in last Sunday's Crossroads, Milwaukee nevertheless managed to annex huge amounts of real estate. For its population and age, the city has a huge geographic footprint. I'm not sure if there are still farms within the city limits, but - as recently as thirty years ago (over a period in which city population has been more or less stable) - there were.
In my last point, I wrote about the second generation school desegregation litigation in the 80s. One of the points that the defense made in that case was Knetzger's. The city managed to annex huge swaths of real estate to the north and west of the city center. Indeed, we introduced piles of materials from the 50s and 60s that Milwaukee promoted this area as "the suburb in the city." Indeed, an earlier use of the term "iron ring" was to say the the city would not provide services such as water (as if Milwaukee owns the lake; an odd position for public trust zealots) to suburban communities.
The African American population moved into this area - in a pie shaped pattern emanating from the city center. This is not unique to Milwaukee. We introduced evidence that showed the exact same pattern of black outmigration patterns in every other midwest industrial city. People who live an area of initial settlement do not disperse randomly. They tend to remain in proximity to friends and families. Indeed, that type of outmigration is not limited to African Americans. Other ethnic groups have followed a similar -albeit less pronounced - pattern and there is evidence of Hispanic migration to the southwest.
That this population remained in the city is evidence of how much the city was permitted to expand - generally over the opposition of those brought within its borders.
I understand that it is doctrine among the local left that this opposition can be dismissed as racist, This is reductive and lazy. People moved to the suburbs because they wanted a new house and a yard. They did not wish to remain in the city because they wanted self-determination for their new communities.
I understand that, for folks like Jim, self-determination that allows people to avoid paying for his policy preferences is anathema. Maybe he's right. But folks who take exception are not racist for them.
Cross posted at Purple Wisconsin.
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