Ryan is right on the War on Poverty

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin.

New York Mayor couldn't make it here

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

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

Read the whole thing.

Cross posted at Purple Wisconsin.

Sixth District is all good

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

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

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

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

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

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

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

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

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

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

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

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

But none of this is what Grothman was addressing.

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

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

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

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



Cross posted at Purple Wisconsin

Comments

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

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

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

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

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

Support for the Tenth Amendment is not support of nullification

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

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

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

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

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

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

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

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

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

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

Actually, no.

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

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

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

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

Cross posted at Purple Wisconsin

What about the misery in our midst?

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

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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin.

Kentucky law prof misses the mark

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



Cross posted at Purple Wisconsin

The Affordable Care Act and the rule of law - again

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin

The eggshell President

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

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

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

But it may even be worse than that.

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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin.

Whither Mr. Penzey?

Bill Penzey strikes again.

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

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

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

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

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

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

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

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

At heart, he's just another capitalist.

Cross posted at Shark and Shepherd home page.

Burke's posing on campaign contributions

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

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

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin

More misinformation on Hobby Lobby

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

Pitts writes:

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

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

Pitts writes:

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

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

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

Pitts writes:

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

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

Pitts writes:

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

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

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

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

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

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

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

Cross posted at Purple Wisconsin

Why Sen. Johnson is right

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

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

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

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

Cross posted at Shark and Shepherd home page

The Myths of Hobby Lobby

Here is a statement that is objectively false.

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

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

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

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

It just isn't true.

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

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

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

But I guess not.

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

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

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

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

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

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

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

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

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

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.

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.

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:

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.

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.