While I was reading the Journal Sentinel earlier this week, I came upon an astonishing sentence. In reviewing a local production of a theatrical adaption of Margaret Atwood's novel, The Handmaid's Tale, Mike Fischer (who is, I hasten to add, not the Mike Fischer who works with me) writes that the play begins with a series of images "making clear that this dystopian look at the future also bears a stark resemblance to the way we live now."
Really?
I don't know if the reviewer is asserting his own view or describing the stance of the production, but Atwood's "dystopian look" at an imagined future conjures a militaristic theocracy in which most women lose all of their rights and are forbidden to read. Some women are ceremoniously raped to produce children.
I understand that the term "stark resemblance" is one of those clichés that people toss about without thinking about the precise meaning. But a "stark" resemblance is one that is "plain," "obvious" and "clear." Whatever one may think about feminism and its progress, the way we "live now" bears virtually no resemblance to Atwood's dystopia. If it does, someone better break out the rifles.
Cross posted at Purple Wisconsin
Thursday, March 26, 2015
Thursday, March 19, 2015
Pocan walks into it
Politicians love to cherry pick statistics. Sometimes this leads to inadvertent little treasures. Recently, Rep. Mark Pocan went on public radio to criticize the passage of a right-to-work laws in Wisconsin. He took a shot at Governor Walker saying that, in a recent one year period, Wisconsin was "dead last" in the Midwest in job creation. The Journal Sentinel's Politifact writer gave it a "mostly true" rating. For a variety of reasons, I believe that's too high and, in any event, I don't think the comparison is very meaningful. What the numbers really show is North Dakota and Michigan doing better than a tightly bunched group of seven states.
But there was something else interesting about it.
The "top four" states by Pocan's measure were right to work states.
Were Pocan testifying at a trial, the opposing lawyers would be telling the story of the ensuing cross-examination for the rest of their lives. It would be something like Ndamukong Suh bearing down on Jay Cutler from the blind sight. Whatever happened next would not be pretty.
Of course, this doesn't "prove" that right to work contributes to job growth and, yes, I know that three of the bottom six were also right to work states. (Remember, Wisconsin was not a right-to-work state for the period in question.) But Pocan winds up being hoisted on his own ill-chosen petard.
Cross posted at Purple Wisconsin
But there was something else interesting about it.
The "top four" states by Pocan's measure were right to work states.
Were Pocan testifying at a trial, the opposing lawyers would be telling the story of the ensuing cross-examination for the rest of their lives. It would be something like Ndamukong Suh bearing down on Jay Cutler from the blind sight. Whatever happened next would not be pretty.
Of course, this doesn't "prove" that right to work contributes to job growth and, yes, I know that three of the bottom six were also right to work states. (Remember, Wisconsin was not a right-to-work state for the period in question.) But Pocan winds up being hoisted on his own ill-chosen petard.
Cross posted at Purple Wisconsin
Wednesday, March 04, 2015
Lack of candor comes in many forms
Another observation about last week's hearing on right to work. There was a false narrative about disinterest being pushed by the opponents of right to work, almost laughably portrayed by Gordon Lafer, who identified himself as an economics professor at the University of Oregon. Professor Lafer began with a show of how no one had paid him and he is an academic who goes where the evidence leads him. I am sure that he believes that and tries to conduct himself accordingly.
But no one paid me to be there either and I am a public interest lawyer and legal scholar who goes where the evidence leads me. I truly believe that and try to conduct myself accordingly.
But it takes incredible chutzpah for Professor Lafer to castigate others as ideological or interested, as he did in this op-ed criticizing a study on right to work by the Wisconsin Policy Research Institute. He is also a research associate at the left wing Economic Policy Institute. It receives funding from unions. It is every bit as "ideological" as WPRI.
What I will admit - and Professor Lafer apparently will not - is that, in a career that, like his, is now in its fourth decade, I think I've learned some things about the world and have some notions about how it works. In my case, this has lead to a libertarian conservative perspective. He has come to see things differently. But both of us would be fooling ourselves and misleading others if we denied having a perspective from which we've come to approach things.
This doesn't mean that I - and, I hope, Professor Lafer - will say anything or do bad work. I try very hard not to. If a particular legal argument won't work, I don't make it. WILL's research reports aspire to be accurate and thorough. None of us are free of confirmation bias and we all make mistakes, we try to do good work.
Senators Wirch and Larson made a show of pointing out that certain of the witnesses in favor of Right to Work did - or have - received funding from the Lynde and Harry Bradley Foundation. Given the scope of Bradley's activities, all this means is that the speakers are active in the libertarian and conservative policy world. In other words, all it establishes is that they have a perspective that I, for one, am perfect willing to admit.
The ultimate irony, of course, is that Senator Wirch and Larson and the Democrats benefit substantially from coerced support of labor unions. They should be careful about asking cui bono (who benefits) lest some one hold up a mirror.
Cross posted at Purple Wisconsin
But no one paid me to be there either and I am a public interest lawyer and legal scholar who goes where the evidence leads me. I truly believe that and try to conduct myself accordingly.
What I will admit - and Professor Lafer apparently will not - is that, in a career that, like his, is now in its fourth decade, I think I've learned some things about the world and have some notions about how it works. In my case, this has lead to a libertarian conservative perspective. He has come to see things differently. But both of us would be fooling ourselves and misleading others if we denied having a perspective from which we've come to approach things.
This doesn't mean that I - and, I hope, Professor Lafer - will say anything or do bad work. I try very hard not to. If a particular legal argument won't work, I don't make it. WILL's research reports aspire to be accurate and thorough. None of us are free of confirmation bias and we all make mistakes, we try to do good work.
Senators Wirch and Larson made a show of pointing out that certain of the witnesses in favor of Right to Work did - or have - received funding from the Lynde and Harry Bradley Foundation. Given the scope of Bradley's activities, all this means is that the speakers are active in the libertarian and conservative policy world. In other words, all it establishes is that they have a perspective that I, for one, am perfect willing to admit.
The ultimate irony, of course, is that Senator Wirch and Larson and the Democrats benefit substantially from coerced support of labor unions. They should be careful about asking cui bono (who benefits) lest some one hold up a mirror.
Cross posted at Purple Wisconsin
Tuesday, March 03, 2015
Right to work and free markets
Last week, I was one of several invited witnesses at the Senate hearing on proposed right to work legislation. I made two points, One was that no legal challenge to the proposed legislation was likely to invalidate it. There is a minor preemption issue regarding the notice period for revocation of a consent to have dues deducted, but Wisconsin can have right to work if the legislature and the Governor so decide. No court will block it. I'm not sure anyone really disagrees with that.
The second was to correct the mischaracterization of the legal nature of collective bargaining agreements and what right to work actually does. As I wrote at Right Wisconsin, opponents typically argue that right to work interferes with a private and voluntary contractual arrangement to give some employees a "right to freeload."
But a collective bargaining agreement is normally not free of legal compulsion and regulatory interference. The government forces employers to recognize a union supported by a majority of employees and requires it to negotiate on all mandatory subjects of bargaining. In the absence of legal interference, none of that would be required.
Moreover, because the union can choose to be an exclusive representative (some people argue that it must do so) the law forbids employers from negotiating with anyone other than the union and forces all employees - even those who never wanted a union or who do not like the demands it made or contract it negotiated - to abide by its terms. This too is anything but a voluntary, free market arrangement.
In short, the government is all over collective bargaining. It creates it through a series of legal compulsions and restrictions. To say that right to work interferes with freedom of contract ignores all of that.
Calling objecting employees "freeloaders" - people who get something that they are not paying for - assumes that they want what the union is selling. More productive employees who feel aggrieved by lockstep compensation and union protection of less productive workers; younger workers who don't want seniority; employees who do not like the causes and candidates that the union supports (and who understand that the reductions in "fair share" or "agency" payments do not relieve them of supporting them) are all compelled to pay for what they don't want and associate with those they do not wish to associate with.
It is, of course, true that they can just go work elsewhere. It is odd, however, to hear Democrats make that type of argument given that they make it no other context. They don't say the employers should not be forced to pay a minimum wage, provide a certain number of sick days, etc., because those workers "who don't like it can just find another job." Moreover, as I noted before, the burden placed on objecting employers is, to a significant degree, the product of government compulsion. The law has made employers recognize the union and bargain. It has made the union an exclusive representative. It hardly seems unreasonable for the state to relieve objectors of this government created burden.
This will make collective bargaining impossible only if a large number of employees opt out. But why is it a problem - much less the evil and oppression that some claim it to be - to require unions to persuade workers that what they are offering is worth what they are charging.
Of course, one can argue that the "majority should rule" and that every worker should go along with what a bare majority of his co-workers want. But I don't see why that's true. We allow the majority to decide what government ought to do because, in the end, government must decide how it it to exercise its limited powers. But there is no corresponding argument that there must be a single contract between employers and a collective of workers. Some people may want that, but other arrangements are possible. Indeed, roughly 93% of all private workers are employed under these "other" arrangements.
The second was to correct the mischaracterization of the legal nature of collective bargaining agreements and what right to work actually does. As I wrote at Right Wisconsin, opponents typically argue that right to work interferes with a private and voluntary contractual arrangement to give some employees a "right to freeload."
But a collective bargaining agreement is normally not free of legal compulsion and regulatory interference. The government forces employers to recognize a union supported by a majority of employees and requires it to negotiate on all mandatory subjects of bargaining. In the absence of legal interference, none of that would be required.
Moreover, because the union can choose to be an exclusive representative (some people argue that it must do so) the law forbids employers from negotiating with anyone other than the union and forces all employees - even those who never wanted a union or who do not like the demands it made or contract it negotiated - to abide by its terms. This too is anything but a voluntary, free market arrangement.
In short, the government is all over collective bargaining. It creates it through a series of legal compulsions and restrictions. To say that right to work interferes with freedom of contract ignores all of that.
Calling objecting employees "freeloaders" - people who get something that they are not paying for - assumes that they want what the union is selling. More productive employees who feel aggrieved by lockstep compensation and union protection of less productive workers; younger workers who don't want seniority; employees who do not like the causes and candidates that the union supports (and who understand that the reductions in "fair share" or "agency" payments do not relieve them of supporting them) are all compelled to pay for what they don't want and associate with those they do not wish to associate with.
It is, of course, true that they can just go work elsewhere. It is odd, however, to hear Democrats make that type of argument given that they make it no other context. They don't say the employers should not be forced to pay a minimum wage, provide a certain number of sick days, etc., because those workers "who don't like it can just find another job." Moreover, as I noted before, the burden placed on objecting employers is, to a significant degree, the product of government compulsion. The law has made employers recognize the union and bargain. It has made the union an exclusive representative. It hardly seems unreasonable for the state to relieve objectors of this government created burden.
This will make collective bargaining impossible only if a large number of employees opt out. But why is it a problem - much less the evil and oppression that some claim it to be - to require unions to persuade workers that what they are offering is worth what they are charging.
Of course, one can argue that the "majority should rule" and that every worker should go along with what a bare majority of his co-workers want. But I don't see why that's true. We allow the majority to decide what government ought to do because, in the end, government must decide how it it to exercise its limited powers. But there is no corresponding argument that there must be a single contract between employers and a collective of workers. Some people may want that, but other arrangements are possible. Indeed, roughly 93% of all private workers are employed under these "other" arrangements.
Monday, March 02, 2015
Building trades and right to work
It's not going to happen, but some people argue that there should be a carve out from right to work legislation for the construction trades. Such an exception would, I am told, be unique to Wisconsin.
The justification would be that unions provide training and need dues in order to provide it. The problem is that this does not seem to be the case. WMC, and other proponents of right to work, have made the claim that employers provide 95% of the training funds spent by trade unions. PolitiFact says this isn't true. I think PolitiFact has it wrong; I know that they are looking at it in the wrong way.
The question is not where the funds "originate." All of the money originates with the employers and, at some point, comes to belong either to the employees or unions. Nor is the question who controls the funds once they leave the employer. It seems to me that we want to know whether the training funds are from general membership dues or whether they are a separately negotiated payment from the employer to the union. Based upon what I know, it is not "mostly false" that this is the case; it is absolutely true.
If that's right, then the reduction in dues need not affect the payments for training. If employers wish to continue paying for training conducted by unions - if, indeed, this is a valuable and critical benefit provided by unions - they can continue to do negotiate such payments. Because right to work would not require unions to train non-members, it is possible that fewer workers would receive this training. But is it likely? If the training provided by unions is, indeed, essential, those workers who receive it will have an advantage in seeking employment, i.e., they will be more valuable to and desired by employers. If that's so, then they will have an incentive to be in the union.
I have not heard that the construction industry has collapsed - or that buildings are falling down - in right to work states like Texas, Florida, North Carolina and Virginia. Perhaps this is why.
Cross posted at Purple Wisconsin
The justification would be that unions provide training and need dues in order to provide it. The problem is that this does not seem to be the case. WMC, and other proponents of right to work, have made the claim that employers provide 95% of the training funds spent by trade unions. PolitiFact says this isn't true. I think PolitiFact has it wrong; I know that they are looking at it in the wrong way.
The question is not where the funds "originate." All of the money originates with the employers and, at some point, comes to belong either to the employees or unions. Nor is the question who controls the funds once they leave the employer. It seems to me that we want to know whether the training funds are from general membership dues or whether they are a separately negotiated payment from the employer to the union. Based upon what I know, it is not "mostly false" that this is the case; it is absolutely true.
If that's right, then the reduction in dues need not affect the payments for training. If employers wish to continue paying for training conducted by unions - if, indeed, this is a valuable and critical benefit provided by unions - they can continue to do negotiate such payments. Because right to work would not require unions to train non-members, it is possible that fewer workers would receive this training. But is it likely? If the training provided by unions is, indeed, essential, those workers who receive it will have an advantage in seeking employment, i.e., they will be more valuable to and desired by employers. If that's so, then they will have an incentive to be in the union.
I have not heard that the construction industry has collapsed - or that buildings are falling down - in right to work states like Texas, Florida, North Carolina and Virginia. Perhaps this is why.
Cross posted at Purple Wisconsin
Sunday, March 01, 2015
Yes, the John Doe is on life support
Three weeks ago, I had a column in the Crossroads section of the Milwaukee Journal Sentinel, calling the John Doe investigation all but dead. An article in the paper, quoting me and a number of other legal experts, suggested the same thing.
Last week, Brendan Fischer of the Center for Media and Democracy wrote that it may not be. He says that, in a recent case seeking to end the investigation, the Seventh Circuit rejected claims that the Doe relied on an unconstitutional interpretation of campaign finance law
No, it didn't. Fischer's statement is wrong. The point is not even arguable.
In O'Keefe v. Chisolm, the court did not reject those claims; it declined to consider them. It held that the federal Anti-Injunction Act prohibited an injunction against the John Doe procedure. This was a procedural ruling that did not itself reach the merits of the Doe.* The closest that the court came to the merits was in dismissing personal claims against the prosecutors. Those claims could prevail only if it was "clearly established" at the time of the investigation that the theory upon which it was based was unconstitutional. The Seventh Circuit said that it might turn out to be constitutional to ban coordinated issue advocacy. But to say that an issue is unresolved is not to resolve it.
These are pretty elementary mistakes on Fischer's part. First year law students learn the difference between decisions on jurisdiction and decisions that reach the merits of the claim. They are taught the distinction between concluding that a claim is, as lawyers say, "colorable" and concluding that it is correct.
In any event, my argument is not that the Doe fails because banning coordinated issue advocacy is unconstitutional, although it may be. But even it's not, it remains the case that 1) Wisconsin has not adopted a constitutionally adequate definition of coordination, 2) Wisconsin has not clearly made whatever ban on coordination it has applicable to issue advocacy and 3) based on press reports, the activity that is being investigated is not coordination.
Indeed, a principal part of the Seventh Circuit's reasoning in O'Keefe was that a federal law suit was unnecessary because the Club could - and did - raise these objections in state court. Not only had it done so, it won before the judge overseeing the Doe.
Indeed, the weakness of the Doe is illustrated by the supposed "smoking gun" e-mails that Fisher cites. None of them are evidence of coordination. At most, they suggest - they don't establish - that Governor Walker may have raised money for advocacy organizations.
Fischer calls these activities "entirely unprecedented" in Wisconsin. Really? When Barack Obama came to town last fall, he appeared at a $16,000/plate sushi dinner. Where does Mr. Fischer think the money went? (In fact, the Presidents' frenetic fundraising for SuperPACs became something of a joke during the last election cycle. It wasn't a crime.)
Politicians often urge people to give money to political action committees and other organizations who will spend money that might benefit the politician making the request or those that she favors. If raising money constitutes coordination, that would, on the prosecutors' theory of the Doe, make these committees or organizations subcommittees of the requesting politician. Because the donations would almost certainly exceed the contribution limits (and wouldn't be reported as contributions to the requestor), crimes could be charged. That's not the law and, if it was, it would be unconstitutional.
I don't say that the John Doe is dead because there is a slim chance that it could be resurrected. But it doesn't look good. It never did.
*The plaintiffs in O'Keefe are seeking review in the Supreme Court. The Seventh Circuit's ruling that the Anti-Injunction Act can be applied to an action brought under section 1983, a federal civil rights law, seems inconsistent with the approach adopted by the Supreme Court and followed by every other Circuit Court of Appeals to have considered the issue. I and my colleagues at the Wisconsin Institute for Law & Liberty filed an amicus brief in support of their petition.
*The plaintiffs in O'Keefe are seeking review in the Supreme Court. The Seventh Circuit's ruling that the Anti-Injunction Act can be applied to an action brought under section 1983, a federal civil rights law, seems inconsistent with the approach adopted by the Supreme Court and followed by every other Circuit Court of Appeals to have considered the issue. I and my colleagues at the Wisconsin Institute for Law & Liberty filed an amicus brief in support of their petition.
Cross posted at Purple Wisconsin
Tuesday, February 24, 2015
More on TIFs, Schools and Streetcars
A recent Politifact undertook to fact check Alderman Joe Davis' statement that the use of Tax Increment District revenue to fund the Milwaukee streetcar would cost the Milwaukee Public Schools revenue. The newspapers' verdict is that Davis got it "mostly wrong." That's not a fair evaluation. My colleague Mike Fisher wrote to the author, James B. Nelson, explaining what he got wrong. Mr. Nelson did not respond, so I'll share Mike's critique at the conclusion of this post.
At Urban Milwaukee, MPS teacher Jay Bullock says that MPS can't be hurt by the loss of tax base that would be caused by TIF financing of the street car. Purple Wisconsin blogger Cindy Kilkenny, who initially didn't think so, says Jay is right. She shouldn't have given up so easily. There is more to be said here too.
Let's start with Jay. Under most scenarios, it would be city taxpayers and not MPS itself that would be are hurt by the street car financing. This is because, as he points out, school districts are subject to revenue limits. If MPS had more tax base available to it, the revenue limits - in any given year - would remain the same. Assuming that it is already spending the maximum amount that it can (and it is), then it would be normally be unable to collect more in taxes and spend more money. It might be able to reduce tax rates, but the reduction would , to some degree, be offset by a loss in state equalization aid because the district is now richer. State equalization aid works by trying to "equalize" school districts' tax base per member. How much the offset would be depends on a whole host of factors that would differ from year to year. Jay's argument is that the district would still have the same amount of money. (Of course, schools are only part of the property taxes paid by city residents.)
So assuming that we don't care about the taxpayer, all else equal, you might think that MPS should be indifferent to an increase in its tax base. But there are problems with the notion that a loss in tax base cannot hurt MPS. Everything else does not stay equal. First, it is possible for school districts to exceed their revenue limits through referenda. That's hard to do, but it happens. Second, state aid doesn't stay the same in relation to revenue limits. Indeed, after a substantial increase, state aid as a percentage of the cost of k-12 education in Wisconsin has been declining. When that happens, school districts have to pick up the difference and it is easier to do that if you have a robust tax base. If I'm MPS and I care about the future, I should not be indifferent to my community's tax base. Equalization aid notwithstanding, its better for a school district to be rich than it is to be poor.
Jay then channels developers in arguing that TIF districts don't cost taxpayers - or any other taxing entity - any money. That is sometimes true and sometimes false. The conceit of tax increment financing is that the city needs to spend money to support particular development or the development won't happen. The story is that using the additional tax revenue to generate that development to "repay" the city for this support doesn't hurt taxpayers because, without the support, there would have been no development and no additional taxes.At Urban Milwaukee, MPS teacher Jay Bullock says that MPS can't be hurt by the loss of tax base that would be caused by TIF financing of the street car. Purple Wisconsin blogger Cindy Kilkenny, who initially didn't think so, says Jay is right. She shouldn't have given up so easily. There is more to be said here too.
Let's start with Jay. Under most scenarios, it would be city taxpayers and not MPS itself that would be are hurt by the street car financing. This is because, as he points out, school districts are subject to revenue limits. If MPS had more tax base available to it, the revenue limits - in any given year - would remain the same. Assuming that it is already spending the maximum amount that it can (and it is), then it would be normally be unable to collect more in taxes and spend more money. It might be able to reduce tax rates, but the reduction would , to some degree, be offset by a loss in state equalization aid because the district is now richer. State equalization aid works by trying to "equalize" school districts' tax base per member. How much the offset would be depends on a whole host of factors that would differ from year to year. Jay's argument is that the district would still have the same amount of money. (Of course, schools are only part of the property taxes paid by city residents.)
So assuming that we don't care about the taxpayer, all else equal, you might think that MPS should be indifferent to an increase in its tax base. But there are problems with the notion that a loss in tax base cannot hurt MPS. Everything else does not stay equal. First, it is possible for school districts to exceed their revenue limits through referenda. That's hard to do, but it happens. Second, state aid doesn't stay the same in relation to revenue limits. Indeed, after a substantial increase, state aid as a percentage of the cost of k-12 education in Wisconsin has been declining. When that happens, school districts have to pick up the difference and it is easier to do that if you have a robust tax base. If I'm MPS and I care about the future, I should not be indifferent to my community's tax base. Equalization aid notwithstanding, its better for a school district to be rich than it is to be poor.
This is why - before a TID can be formed - the relevant municipal authorities must make a finding that the development would not occur "but for" the municipal subsidy. In reality, this "finding" is often untrue.
But in the case of TID funds being used for the Milwaukee streetcar, we know that it is untrue. We know that the development generating the tax funds to be used for the project would, for the most part, be generated in the absence of the streetcar because they are already being generated. The TID revenue to be diverted to the streetcar comes from an existing TID, No. 56, and a newly created TID, No. 82. Here are the facts as explained to Mr. Nelson by my colleague:
1) TIF 56: The development that this TIF was created to support has already taken place. The property in the TIF consists of the Marine Terminal Condominium and the two Harbor Front condominiums. They are built. The improvements made by the city, consisting mostly of extensions of the Riverwalk along these properties and street and lighting improvements, have been almost completely paid off. In the ordinary course these properties would revert to the normal tax rolls and the property taxes paid on them, which are substantial, would be used for general municipal purposes including MPS. By extending the TIF, the Mayor is excluding these already developed and valuable properties from the tax rolls for another 15 or 20 years. There will be no new development in this TIF district as a result of the streetcar.
(2) TIF 82: Consists of two parcels, one that will be the Couture and one that will be the 633 office building. The 633 building is already under construction. In the normal course the increased tax revenue from this building when completed would roll into the normal city tax rolls and could be used for general purposes including schools. Instead, by including the 633 Building in TIF 82, the taxes relating to this new and expensive office building will go to support the streetcar. The Couture is the only development within either of the two TIFs that even arguably fits the template of a building that would not be built if not for the TIF financing. Of course, it was planned long before the TIF was created but it may be true, as developer Barrett says, that he will abandon this project without the streetcar. So it is possible that the incremental tax revenue that will accrue from the Couture project would actually fit the TIF paradigm.
Bottom line: no TIFS, the tax revenue from the three condominiums and the 633 building become part of the City’s normal tax base. As noted, TIF financing for the streetcar has absolutely nothing to do with the development of these buildings as the condos are already there and the 633 project is financed and already underway.
So the TIFs really just remove these four properties from the normal tax rolls for 15 or 20 years and the general revenue for the City that they would otherwise produce goes to streetcar construction instead of other city needs including the schools.
Now it may well be that spending more on schools won't happen because MPS would have "taxed to the max" anyway and doesn't want to - or can't - get voter approval to spend more. Maybe the money gets spent of police protection or community centers. Maybe city taxpayers get a break. The point is that the City of Milwaukee taxpayer is footing the bill for this streetcar just as much as if the Mayor had raised tax rates to get the money.
Now, of course, if you believe that human beings have changed so that what was once a failed technology will now miraculously cause millions - even billions ! - in new development, that reality won't bother you. If you're a developer that likes the idea of the city manipulating transit to dump customers on your front step, it's all good. But it's wrong to pretend that you aren't making city taxpayers foot the bill.
Cross posted at Purple Wisconsin.
Another performance of Much Ado About Nothing
We talk a lot about civility in public discourse and, of course, there's a certain amount of judgment in what is civil and what is not. I, for one, would hate to see writers lose their distinctive voice through fear of offending. In my mind, civility is more an art than a science; more a collection of principles than a set of rules.
One of the principles ought to be a strong presumption that people who disagree with you aren't dishonest or evil. They usually will have a reason for thinking the way that they do even if you disagree with that reason.
This principle was recently violated - strongly and pervasively - by the reaction to School Choice Wisconsin's request for student directory data from certain school districts outside of Milwaukee and Racine. (Full disclosure: I and my colleagues at WILL represent and work with SCW on a variety of matters. It is one of the most professional policy and advocacy shops to be found.)
Some of our friends on the left lost their composure and behaved as if SCW had done something heretofore unknown and legally questionable. Some argued - the lack of grammatical prose and logical rigor made it hard to tell - that SCW or schools participating in the choice program or some other folks would or could use the information for a variety of criminal purposes.
One of the principles ought to be a strong presumption that people who disagree with you aren't dishonest or evil. They usually will have a reason for thinking the way that they do even if you disagree with that reason.
This principle was recently violated - strongly and pervasively - by the reaction to School Choice Wisconsin's request for student directory data from certain school districts outside of Milwaukee and Racine. (Full disclosure: I and my colleagues at WILL represent and work with SCW on a variety of matters. It is one of the most professional policy and advocacy shops to be found.)
Some of our friends on the left lost their composure and behaved as if SCW had done something heretofore unknown and legally questionable. Some argued - the lack of grammatical prose and logical rigor made it hard to tell - that SCW or schools participating in the choice program or some other folks would or could use the information for a variety of criminal purposes.
First, it is absolutely clear that school directory data is not confidential. If you doubt this, let's read the law. Sec. 118.125 says that "directory data may be disclosed to any person" provided that parents or guardians or are aware of the type of information that has been designated as directory data and told them that they have fourteen days to object to its disclosure. Second, this is not some scary or nefarious or unknown provision of the law. It allows basic student information to be made available to people who might offer opportunities and services of potential interest to students and their parents. Camps, sports programs, colleges - all have legitimate reasons to contact families and families may well have an interest in hearing from them. Third, what SCW wanted to do - and will be doing - is perfectly consistent with the law and that purpose. It wants to make parents aware that the school choice program has been expanded to their area and tell parents how, if they are interested, to learn more. This is about as threatening as a letter from a drum and bugle corp or a local college.
This is why SCW was willing to amend its request at the request of the Green Bay School District. It didn't have to (and wasn't necessary to do so), but it could because all it wanted to do is send postcards to parents directing them to its website if they wanted to learn more about the program. SCW was not interested in a fight, it was interested in providing families with information and, to its credit, the Green Bay district agreed.
Could someone abuse a request for directory data? It's possible but this is not a new provision in the law. It was there in 1985 when, as a young lawyer representing the West Allis-West Milwaukee school district, I supervised the production of district records in a school desegregation case. If anyone has ever misused the law, I am not aware of it.
So the "story" was a nothing burger. It should have been easy to see that, but when you begin, as some people do, with the assumption that people you disagree with - say proponents of educational choice - are bad people, it's easy to miss the obvious and end up in the fever swamp.
T
Sunday, February 22, 2015
The UW will live
Recently, I wrote a piece at Right Wisconsin on the flap over the "Wisconsin Idea" at Right Wisconsin. Short version: the Wisconsin Idea is a common place generality that, at least in 2015, distinguishes the University of Wisconsin from nobody. No one has suggested that UW become a trade school or abandon research.
Are the proposed cuts to the UW budget "slashing" and "crippling" and "decimating?" Will they cause the UW to grind to a "halt?' I've read read repeated claims, in the Journal Sentinel and elsewhere, that they are and will.
Most of the media has elided the true nature of the proposed reduction by emphasizing that the cuts are roughly a 13% reduction in state aid. So they are. But most of the UW's revenue does not come from the state government. Much of the media has framed the story to imply that the UW campuses will have 13% less money to do what they do.
That is just false. The reduction in state aid amounts to 2.5% in revenue. That is how much less the UW will have to spend. I am sure that a cut of that magnitude will be felt, but it is simply not existential.
The Journal Sentinel's Politifact turned its attention to the magnitude of the cut. Some of the UW's revenue is restricted, i.e., it must be used for a particular purpose. Some of it is activity related. If, for example, you make money by selling tickets to a football game or running a basketball camp, you can't eliminate the game or the camp. It is sometimes claimed that over 60% of UW revenue falls into that category. Thus, Politifact suggested that one might argue the cut is "really" 6.5%.
I don't buy it. I am skeptical that 60% of the UW budget's is actually committed to uses that cannot be altered or delivered at a lower cost without violating some type of legal constraint. In fact to say so strikes me as facially implausible. But even if it were so, it would mean that roughly 60% of what the UW does would be untouched by the budget cuts and only the remaining 40% would see a 6.5% reduction. Unless you assume that the 60% is being spent for extraneous purposes, that fact is significant and saying that they "system" has been cut by 6.5% is, at best, wildly misleading. In fact, it's pants on fire wrong.
Having said that, I agree that the real world impact might be a bit heavier than using the 2.5% number suggests in that some uses of funds will be more vulnerable than others.
In addition, the university has hamstrung itself. It is bound by things like tenure and shared governance. These things make it difficult to more rationally allocate faculty. Having spent four years working full time on a law faculty, I am not persuaded that either of these things are as valuable as folks in academia commonly suppose they are. Tenure is supposed to protect the iconoclast and promote intellectual diversity, but the modern university is one of the more conformist institutions in our society. This is, in part, a product of shared governance. Faculties tend to replicate themselves. As one law professor once told me, "my colleagues' idea of diversity is to hire people who went to the same schools, worked in the same places, think the same way but look different."
I don't believe that tenure necessarily results in lazy professors. Most of my colleagues at Marquette - who generally only taught two classes each semester - contributed to the institution in additional ways, such as scholarship, development of curricula and clinical education and administration. But, regarding those few who did not, little could be done. In addition, the nature of these contributions tend to be chosen by the faculty member and not the administration. That's significant. For example, there is a presumption that all faculty should be engaged in research. This leads to a lot of dubious work. Some professors should teach more and write less, but the Dean generally cannot make that happen.
There are reasons for giving faculty some greater degree of autonomy than a corporation might, for example, give its marketing department. Moreover, the UW - and, for that matter, Marquette - couldn't possibly unilaterally move away from things like tenure, shared governance and light teaching loads. They'd bleed faculty and wouldn't attract good new professors. On this point, Chancellor Blank is correct. Our way of providing higher education is designed to be expensive.
But it is not knuckle-dragging philistinism to suggest that, when money is tight, some teachers should spend more time in the class room.
There is also a public fiction that cuts must be painless. Let's accept the fact that a cut in the UW budget will have real costs. The system won't be able to do things that, in an ideal world, we'd want it to do. It's a sad fact of life that money doesn't always stretch as far as we'd like. Wisconsin is still a high tax state. I think it is reasonable that there be a strong presumption against increasing them. (And, no, I'm not persuaded by arguments that restoring the cuts would only increase taxes a small amount. That's going to be true of any proposed reduction in government spending. All of those "small contributions" to this or that state program have resulted in a state with a relatively large tax burden.)
Here's another thing that you don't read. The UW's budget has been steadily increasing. For example, in 2002-2003, the system served approximately 140,000 students with a budget of roughly $ 3.5 billion, or a little under $ 25,000 per student. In 2011-2012, it enrolled a little over 155,000 students and had a budget of $ 5.9 billion, amounting to $ 36,000/student. That's a very large real increase. I'm sure that one can look behind these numbers in a variety of ways and it is certainly true that the increase has not come from additional state aid. But, at least at first blush, it doesn't seem like the UW is starved for money. Actually, it seems likes it has been doing quite well. Certainly much better than the taxpayers who it believes should pay more so that it will not have to make do with less.
I'm still not persuaded that the proposed UW cuts are a good idea. But I can't buy into the hair-on-fire hysteria with which they have been met.
Cross posted at Purple Wisconsin
Are the proposed cuts to the UW budget "slashing" and "crippling" and "decimating?" Will they cause the UW to grind to a "halt?' I've read read repeated claims, in the Journal Sentinel and elsewhere, that they are and will.
Most of the media has elided the true nature of the proposed reduction by emphasizing that the cuts are roughly a 13% reduction in state aid. So they are. But most of the UW's revenue does not come from the state government. Much of the media has framed the story to imply that the UW campuses will have 13% less money to do what they do.
That is just false. The reduction in state aid amounts to 2.5% in revenue. That is how much less the UW will have to spend. I am sure that a cut of that magnitude will be felt, but it is simply not existential.
The Journal Sentinel's Politifact turned its attention to the magnitude of the cut. Some of the UW's revenue is restricted, i.e., it must be used for a particular purpose. Some of it is activity related. If, for example, you make money by selling tickets to a football game or running a basketball camp, you can't eliminate the game or the camp. It is sometimes claimed that over 60% of UW revenue falls into that category. Thus, Politifact suggested that one might argue the cut is "really" 6.5%.
I don't buy it. I am skeptical that 60% of the UW budget's is actually committed to uses that cannot be altered or delivered at a lower cost without violating some type of legal constraint. In fact to say so strikes me as facially implausible. But even if it were so, it would mean that roughly 60% of what the UW does would be untouched by the budget cuts and only the remaining 40% would see a 6.5% reduction. Unless you assume that the 60% is being spent for extraneous purposes, that fact is significant and saying that they "system" has been cut by 6.5% is, at best, wildly misleading. In fact, it's pants on fire wrong.
Having said that, I agree that the real world impact might be a bit heavier than using the 2.5% number suggests in that some uses of funds will be more vulnerable than others.
In addition, the university has hamstrung itself. It is bound by things like tenure and shared governance. These things make it difficult to more rationally allocate faculty. Having spent four years working full time on a law faculty, I am not persuaded that either of these things are as valuable as folks in academia commonly suppose they are. Tenure is supposed to protect the iconoclast and promote intellectual diversity, but the modern university is one of the more conformist institutions in our society. This is, in part, a product of shared governance. Faculties tend to replicate themselves. As one law professor once told me, "my colleagues' idea of diversity is to hire people who went to the same schools, worked in the same places, think the same way but look different."
I don't believe that tenure necessarily results in lazy professors. Most of my colleagues at Marquette - who generally only taught two classes each semester - contributed to the institution in additional ways, such as scholarship, development of curricula and clinical education and administration. But, regarding those few who did not, little could be done. In addition, the nature of these contributions tend to be chosen by the faculty member and not the administration. That's significant. For example, there is a presumption that all faculty should be engaged in research. This leads to a lot of dubious work. Some professors should teach more and write less, but the Dean generally cannot make that happen.
There are reasons for giving faculty some greater degree of autonomy than a corporation might, for example, give its marketing department. Moreover, the UW - and, for that matter, Marquette - couldn't possibly unilaterally move away from things like tenure, shared governance and light teaching loads. They'd bleed faculty and wouldn't attract good new professors. On this point, Chancellor Blank is correct. Our way of providing higher education is designed to be expensive.
But it is not knuckle-dragging philistinism to suggest that, when money is tight, some teachers should spend more time in the class room.
There is also a public fiction that cuts must be painless. Let's accept the fact that a cut in the UW budget will have real costs. The system won't be able to do things that, in an ideal world, we'd want it to do. It's a sad fact of life that money doesn't always stretch as far as we'd like. Wisconsin is still a high tax state. I think it is reasonable that there be a strong presumption against increasing them. (And, no, I'm not persuaded by arguments that restoring the cuts would only increase taxes a small amount. That's going to be true of any proposed reduction in government spending. All of those "small contributions" to this or that state program have resulted in a state with a relatively large tax burden.)
Here's another thing that you don't read. The UW's budget has been steadily increasing. For example, in 2002-2003, the system served approximately 140,000 students with a budget of roughly $ 3.5 billion, or a little under $ 25,000 per student. In 2011-2012, it enrolled a little over 155,000 students and had a budget of $ 5.9 billion, amounting to $ 36,000/student. That's a very large real increase. I'm sure that one can look behind these numbers in a variety of ways and it is certainly true that the increase has not come from additional state aid. But, at least at first blush, it doesn't seem like the UW is starved for money. Actually, it seems likes it has been doing quite well. Certainly much better than the taxpayers who it believes should pay more so that it will not have to make do with less.
Cross posted at Purple Wisconsin
Thursday, February 05, 2015
Thus endeth the Doe?
We've recently read that a ruling by Judge Charles Clevert has "struck down" portions of Wisconsin's campaign finance law and may have effectively killed - if it is still alive - the John Doe investigation into "coordination" between Scott Walker's campaign and certain conservative groups. Both of these things are true, but they actually happened last May.
What Judge Clevert did last week was to enter a judgment formalizing - and reducing to legally prescriptive language (i.e., "you shall not do X") - a ruling of the Seventh Circuit Court of Appeals last spring in a case called Wisconsin Right to Life v. Barland. Most significantly, the Seventh Court held that the very scope of Wisconsin's campaign finance law was unconstitutional. As I wrote at the time, this ruling, at the very least, put the Doe inquiry on life support. Judge Clevert's recent order makes clear why this is the case.
Virtually all of Wisconsin's campaign finance laws are limited to activities undertaken for a "political purpose." The law itself defines this broadly, saying that it is anything done "for the purpose of influencing an election." While it has only sometimes admitted it, the Government Accountability Board has known for a long time that this definition is unconstitutionally vague and overbroad. The Supreme Court has made clear that not everything that might be said to have "the purpose" of influencing an election can be regulated. So the Barland court held that the state must limit its definition of "political purpose" to activities that constitute "express advocacy" - explicit calls to elect or defeat a candidate - or its "functional equivalent."
This is a pretty narrow definition. The Supreme Court has made clear, for example, that a communication (think of a campaign ad) can only be considered to be express advocacy (or its functional equivalent) if it is susceptible of no reasonable interpretation other than as a call to elect or defeat a candidate. In making this determination, it doesn't matter what the speaker "really" intended and very little consideration of the context is permitted. In other words, if it is at all possible to call something an issue ad, it's an issue ad. While the Court hasn't directly said so, it is hard to see how any ad that does not use "magic words" such as "vote for" or "defeat" can ever be considered express advocacy.
The implications for the Doe are obvious and Judge Clevert's order drives that home. It prohibits the defendants (which include the GAB and Milwaukee County District Attorney John Chisholm") from any criminal investigation that is inconsistent with this new and limited definition of "political purpose." If, as seems to be the case, those who were alleged to have coordinated with the Walker campaign did nothing but issue advocacy, then their activities could not fall within the constitutionally permissible definition of "political purposes." There would be literally nothing that can be lawfully investigated.
Some lawyers have argued that Barland's limitation of "political purpose" should not apply to coordinated communications. i.e., communications that have somehow been somehow been discussed with a candidate or someone who is deemed to be an agent of or closely related to a candidate. For reasons that I have explained elsewhere (including in briefs filed in related cases), I believe that this is wrong. People who advocate on issues frequently speak to elected officials and candidates. For example, liberal organizations who want to launch a campaign against right to work legislation will almost certainly discuss strategy and talking points with like-minded legislators - many of whom may be candidates for public office. Indeed, they have a constitutional right to do so. An overly expansive definition of "coordination" - one that does not clearly and narrowly define the conduct that constitutes coordination and the content of communications that might be considered coordination - does not give adequate protection to speakers.
John Chisholm and the GAB should never have started this Doe investigation. It was an unseemly and unprecedented assault on freedom of expression. Sound lawyerly judgment should have caused them to end it long ago. Now, it seems, they may have no choice.
Cross posted at Purple Wisconsin.
What Judge Clevert did last week was to enter a judgment formalizing - and reducing to legally prescriptive language (i.e., "you shall not do X") - a ruling of the Seventh Circuit Court of Appeals last spring in a case called Wisconsin Right to Life v. Barland. Most significantly, the Seventh Court held that the very scope of Wisconsin's campaign finance law was unconstitutional. As I wrote at the time, this ruling, at the very least, put the Doe inquiry on life support. Judge Clevert's recent order makes clear why this is the case.
Virtually all of Wisconsin's campaign finance laws are limited to activities undertaken for a "political purpose." The law itself defines this broadly, saying that it is anything done "for the purpose of influencing an election." While it has only sometimes admitted it, the Government Accountability Board has known for a long time that this definition is unconstitutionally vague and overbroad. The Supreme Court has made clear that not everything that might be said to have "the purpose" of influencing an election can be regulated. So the Barland court held that the state must limit its definition of "political purpose" to activities that constitute "express advocacy" - explicit calls to elect or defeat a candidate - or its "functional equivalent."
This is a pretty narrow definition. The Supreme Court has made clear, for example, that a communication (think of a campaign ad) can only be considered to be express advocacy (or its functional equivalent) if it is susceptible of no reasonable interpretation other than as a call to elect or defeat a candidate. In making this determination, it doesn't matter what the speaker "really" intended and very little consideration of the context is permitted. In other words, if it is at all possible to call something an issue ad, it's an issue ad. While the Court hasn't directly said so, it is hard to see how any ad that does not use "magic words" such as "vote for" or "defeat" can ever be considered express advocacy.
The implications for the Doe are obvious and Judge Clevert's order drives that home. It prohibits the defendants (which include the GAB and Milwaukee County District Attorney John Chisholm") from any criminal investigation that is inconsistent with this new and limited definition of "political purpose." If, as seems to be the case, those who were alleged to have coordinated with the Walker campaign did nothing but issue advocacy, then their activities could not fall within the constitutionally permissible definition of "political purposes." There would be literally nothing that can be lawfully investigated.
Some lawyers have argued that Barland's limitation of "political purpose" should not apply to coordinated communications. i.e., communications that have somehow been somehow been discussed with a candidate or someone who is deemed to be an agent of or closely related to a candidate. For reasons that I have explained elsewhere (including in briefs filed in related cases), I believe that this is wrong. People who advocate on issues frequently speak to elected officials and candidates. For example, liberal organizations who want to launch a campaign against right to work legislation will almost certainly discuss strategy and talking points with like-minded legislators - many of whom may be candidates for public office. Indeed, they have a constitutional right to do so. An overly expansive definition of "coordination" - one that does not clearly and narrowly define the conduct that constitutes coordination and the content of communications that might be considered coordination - does not give adequate protection to speakers.
John Chisholm and the GAB should never have started this Doe investigation. It was an unseemly and unprecedented assault on freedom of expression. Sound lawyerly judgment should have caused them to end it long ago. Now, it seems, they may have no choice.
Cross posted at Purple Wisconsin.
Saturday, December 27, 2014
Thoughts on Supreme Court reform
The legislature wants to amend the Constitution to allow the justices on the Supreme Court to select their own chief justice and to pass a statute setting a mandatory retirement age for judges. The latter does not require a constitutional amendment because the state constitution already empowers the legislature to set such an age at not less than 70. Current proposals would set the retirement age at 75.
I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.
It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.
The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.
But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.
There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)
Cross posted at Purple Wisconsin.
I am not persuaded, however, by the argument that the legislature cannot set a retirement age that would cut short the term of sitting Justices. There is, I think, an uncomfortable separation of powers feeling to the thing, but the state constitution does not qualify the legislature's authority. But I am not enamored with the setting of a mandatory retirement age (indeed I become less enthusiastic about such limits with every passing year) and I do not believe that the legislature is constitutionally compelled to set one. Given the the voters have recently re-elected justices who were 75 (Chief Justice Abrahamson) and 73 (Justice Roggensack) at they time that they stood for election, a retirement age of 75 would seem to run contrary to the will of voters. It is not so much, as the Chief Justice argued, that voters re-elected those two (one could simply grandfather sitting justices if that were a a concern), but that their elections demonstrated that voters might wish to elect an older candidate to a full term.
It would seem to me that any mandated retirement age - if it is a good idea - would have to be higher. My guess is that an examination of judicial history would find many judges who remain effective throughout the seventies and relatively few after that.
The idea that the Court itself should choose its own chief is more intriguing. It is not simply about the current Chief Justice, although people certainly have been critical of her leadership on the Court - as distinct from her jurisprudence. Having the most senior (in terms of service) justice assume the role of chief has the benefit of not embroiling the court in controversy and competition over whom will be selected for the role.
But that is of relatively little value. The chief justice has a tough job. He or she must have the administrative and managerial skills necessary to lead and foster cooperation among a collection of jurists who will have sharp disagreements on the law and over whom he or she has no real authority. These jurists are likely to have large egos (you don't get that far in the legal profession without one) and strongly committed to their own ideas. One cannot simply be a "decider" or issue "wise" diktats. Effective leadership must be subtly and modestly exercised. A successful chief justice must know when to pick his battles, be willing, for the most part, to swallow his tongue and must be willing to give up what he doesn't need in order to have what is essential. Not everyone - even judges who are brilliant lawyers - can do this.
There is no reason to believe that the most senior justice will have the skill set and personality to perform the functions of a chief justice. This is without regard to ideology. The most senior member of the United States Supreme Court is Antonin Scalia. I am a huge fan (although not as much as I am of Clarence Thomas), but I doubt that Justice Scalia has the personality to be the Chief Justice. (My guess is that he would agree.)
Cross posted at Purple Wisconsin.
Wednesday, December 17, 2014
What are you willing to give up for the Milwaukee streetcar?
I have a post on the streetcar project over at Right Wisconsin. The issue flips our common political assumptions in a number of ways.
Here is what is happening. Among other feats of financial ledgerdemain, the city wants to take $ 31,000,000 in tax revenue that is being generated by a project that is already underway - the 833 Building - and divert it to the streetcar. This money would undeniably be available if the streetcar was never built (the 833 project is already under construction) and, because of what the city proposes to do, cannot be made available for anything else.
It cannot be used for the schools.
It cannot be used to improve athletic facilities in the neighborhoods.
It cannot be used to rehabilitate inner city housing.
It cannot be used to fund community policing programs that might help to protect inner city residents while relieving tensions between the police and the minority community.
It cannot help build a new arena for the Bucks.
It cannot be spent for anything to help low income residents of Milwaukee.
It cannot be used to reduce the levy on a heavily taxed community.
Instead, it will be used to fund a transit technology that was the latest and greatest thing - in 1906. It will be used to fund a transit technology that is less energy efficient and slower than buses.
It will be used to fund a transit technology that was considered obsolete and counterproductive in the late 1940s. When the streetcar was offered for sale to Milwaukee's then-socialist government in the 1950s, the answer was no.
The justification for all of this is that it will be considered groovy by the well-heeled Millennials and empty-nested Baby Boomers that live downtown. These people don't actually need it, but they will like it. My colleagues and I joke that we will be able to ride the streetcar (which will stop close to our office on Burns Square) to the Milwaukee Club to meet with conservative donors at taxpayer expense. But, in reality, we won't. It will be quicker to walk.
Writing at Vox, left wing writer Matthew Yglesias calls the DC streetcar project the "worst transit project" in America and the case for a streetcar in densely populated DC is much stronger than it is here. This project is, at best, a naked exercise in redistribution from the less well off to the well heeled. In fact, it's boondoggle that will benefit nobody, If it's such a good idea - if it is more important than all of the things that I just mentioned - then why not let the people vote on it?
Cross posted at Purple Wisconsin.
Here is what is happening. Among other feats of financial ledgerdemain, the city wants to take $ 31,000,000 in tax revenue that is being generated by a project that is already underway - the 833 Building - and divert it to the streetcar. This money would undeniably be available if the streetcar was never built (the 833 project is already under construction) and, because of what the city proposes to do, cannot be made available for anything else.
It cannot be used for the schools.
It cannot be used to improve athletic facilities in the neighborhoods.
It cannot be used to rehabilitate inner city housing.
It cannot be used to fund community policing programs that might help to protect inner city residents while relieving tensions between the police and the minority community.
It cannot help build a new arena for the Bucks.
It cannot be spent for anything to help low income residents of Milwaukee.
It cannot be used to reduce the levy on a heavily taxed community.
Instead, it will be used to fund a transit technology that was the latest and greatest thing - in 1906. It will be used to fund a transit technology that is less energy efficient and slower than buses.
It will be used to fund a transit technology that was considered obsolete and counterproductive in the late 1940s. When the streetcar was offered for sale to Milwaukee's then-socialist government in the 1950s, the answer was no.
The justification for all of this is that it will be considered groovy by the well-heeled Millennials and empty-nested Baby Boomers that live downtown. These people don't actually need it, but they will like it. My colleagues and I joke that we will be able to ride the streetcar (which will stop close to our office on Burns Square) to the Milwaukee Club to meet with conservative donors at taxpayer expense. But, in reality, we won't. It will be quicker to walk.
Writing at Vox, left wing writer Matthew Yglesias calls the DC streetcar project the "worst transit project" in America and the case for a streetcar in densely populated DC is much stronger than it is here. This project is, at best, a naked exercise in redistribution from the less well off to the well heeled. In fact, it's boondoggle that will benefit nobody, If it's such a good idea - if it is more important than all of the things that I just mentioned - then why not let the people vote on it?
Cross posted at Purple Wisconsin.
Monday, December 15, 2014
Accountability and School Choice: Let's Begin
Because accountability - for both private schools participating in one of Wisconsin's three school choice programs will be an issue in the coming legislative session - we at the Wisconsin Institute for Law & Liberty released the first of what we expect to be a series of reports on the issue.
The first report is descriptive and is called, not surprisingly, "Let's Begin by Understanding Where We Are." The report describes and comments upon state accountability measures applicable in the choice and public sectors. It concludes that it is simply not possible to claim that the state holds public schools to a greater measure of accountability than private schools participating in the choice program or vice versa. (We do note, however, that accountability measures for schools in the choice program appear to be more immediate and the consequences more onerous.)
We do not claim that the accountability measures imposed on the schools in the choice program are "too strict." We did note that, "whatever one might think of the adequacy of these standards," the DPI's interpretation of them seems to be, in certain respects, more aggressive than state law provides. These issues relate not to the standard themselves, but to requirements that a single standard be chosen at the beginning of the school year and that DPI policy seems to rule out the exercise of statutorily mandated discretion in it s enforcements.
But we take no position in this report as to what the accountability standards should be. Our report was descriptive and comparative, not normative.
There is a reason for that and it goes back to the title of the report. We do not expect the standards to remain the same. We anticipate a robust debate about what they should be in which we expect to participate. But, as that debate begins, we thought it important to draw attention to what the standards are and to address, in part, the common argument that public schools are held accountable in a way that choice schools are not.
The recent story regarding the Ceria M. Travis Academy illustrates this. I - and WILL - are not familiar with the school and, for that reason, take no position on its recent difficulties. But however poorly the Travis Academy may be faring, it is hardly the only failing school in the city of Milwaukee. It is being held accountable. Are failing MPS schools - and there are plenty - facing the same consequences?
Cross posted at Purple Wisconsin.
The first report is descriptive and is called, not surprisingly, "Let's Begin by Understanding Where We Are." The report describes and comments upon state accountability measures applicable in the choice and public sectors. It concludes that it is simply not possible to claim that the state holds public schools to a greater measure of accountability than private schools participating in the choice program or vice versa. (We do note, however, that accountability measures for schools in the choice program appear to be more immediate and the consequences more onerous.)
We do not claim that the accountability measures imposed on the schools in the choice program are "too strict." We did note that, "whatever one might think of the adequacy of these standards," the DPI's interpretation of them seems to be, in certain respects, more aggressive than state law provides. These issues relate not to the standard themselves, but to requirements that a single standard be chosen at the beginning of the school year and that DPI policy seems to rule out the exercise of statutorily mandated discretion in it s enforcements.
But we take no position in this report as to what the accountability standards should be. Our report was descriptive and comparative, not normative.
There is a reason for that and it goes back to the title of the report. We do not expect the standards to remain the same. We anticipate a robust debate about what they should be in which we expect to participate. But, as that debate begins, we thought it important to draw attention to what the standards are and to address, in part, the common argument that public schools are held accountable in a way that choice schools are not.
The recent story regarding the Ceria M. Travis Academy illustrates this. I - and WILL - are not familiar with the school and, for that reason, take no position on its recent difficulties. But however poorly the Travis Academy may be faring, it is hardly the only failing school in the city of Milwaukee. It is being held accountable. Are failing MPS schools - and there are plenty - facing the same consequences?
Cross posted at Purple Wisconsin.
Wednesday, December 10, 2014
We need a better debate on Ferguson
Following last month's elections, I was intrigued by David Haynes call - or at least longing - for greater civility in our political discourse. I share his objective and his interest in Jonathan Haidt's writings on the topic. I have some differences with Haidt who I think does not understand American conservatives, but that's a topic for another post. We'll get back to Haidt in a moment.
What does it mean to engage in civil discourse? I'd start by suggesting that it requires us to assume - until proven otherwise - the good faith of our opponents. If you find yourself believing that everyone you disagree with is monstrous or corrupt, you are almost certainly wrong. It also requires an openness to the facts; a willingness to at least adjust your argument in the face of the evidence.
Not one, but two Purple Wisconsin bloggers have endorsed - or come awfully close to endorsing - violence in the wake of the failure to indict Officer Darryl Wilson in the shooting of Michael Brown. They call it "disruption."
What are we to make of this? Imagine that a conservative blogger here called for secession from the Obama "regime" or wrote a jeremiad defending the need to "disrupt" society until the President respected the constitutional limits on his authority or until the rights of the "53 %" who fund our government are respected. Imagine that a blogger had written that "black people" ignore other black people who cause "white death" or were "cooperating" with violent black criminals. Imagine that a blogger had claimed that only a "scarce" number of black people were trying to be "dutiful members of the human race."
The call for - or tolerance of - "disruption" is a very extreme position. Now, of course, if I thought that the white people in the United States were engaged in a systematic campaign of genocide against black people - if I thought there was an "indefatigable pattern of black death at white hands" (in fact, interracial crimes are more likely to be black on white) - I'd call for "disruption" as well. But that would be an astonishing belief. To the extent it is based on a claim of deliberate indifference to widespread homicide, it implies that most of us are very bad people.
And if I thought these things, I would be wrong. While I suspect that race can race play a role in interactions between citizens and the police, there are, in fact, only relatively small differences in the likelihood that black or Hispanic - as opposed to white persons - will be stopped by the police. According to Justice Department statistics, blacks are slightly more likely than whites to report having been the subject of a traffic stop (13% v. 10%) or street stop (0.7% v. 0.6%). Roughly 1 % of the 25 % of all citizens who have had a face to face encounter with the police are subjected to force or the threat of force. The percentage for blacks (3.7% of those experiencing police encounters) is higher than that for whites (1.2%) or Hispanics (2.2%), but the fact is that the use of force or threat of force is a very rare event for blacks generally as well as for blacks who are stopped by the police.
But what about these differences in the reported use of force? A far left group called ProPublica calculates that young black males are much more likely to be killed by police as young white males (31/1,000,000 vs. 1.47/1,000,000), but this does not make such events frequent or even tell us much about police conduct. Statistically, young black males are also much more likely to commit homicides and other violent crimes (even though the overwhelming majority do not do so) and this is going to affect those numbers in ways that have nothing to do with bias. Are these police shootings justified? Is race a factor? We don't know. We do know that they are rare. While the numbers are disputed, it appears that two hundred African Americans are killed by the police each year. But there are over 6200 African American murder victims each year. Even if every one of the deaths caused by the police are unjustified or could somehow be eliminated, the impact on black victimization rates would be negligible. In a very large country, the law of large numbers will mean that there are always incidents - involving both blacks and whites - to talk about, but there simply is not an "indefatigable" parade of the improper use of force against black suspects.
Of course none of this means that we should ignore or minimize police brutality when it occurs (and it does). It does not mean that we should not take allegations of police misconduct seriously. It does not even mean that race is never a factor when interactions between young black men and police go wrong. But calls for "disruption" are predicated on claims that it is somehow "common" for police to wrongfully kill black people. That predicate is wrong. If there is an African American blood bath, it is not the police (or, for that matter, white people) who are causing it. If we are concerned about reducing black deaths, the police -as imperfect as they may be - are not where we should begin. Indeed, we need to acknowledge that the police are, on balance, the solution and not the problem.
In other words, if, to quote the hashtag, "black lives matter," we have remember that police protection is far more important for people in the inner city than it is for most of us in the suburbs. Black lives in the city are at risk in a way that the lives of people who live in safer areas are not.
So there is simply no justification for calls for - or the tolerance of - "disruption" which will, of course, harm innocent black folks already targeted with high levels of violence - not by the police - but by people that the police are trying to stop.
But returning to Haidt, moral positions are not always determined by the facts. Here, there seems to be a studied indifference to the facts - both of the Brown case itself and the larger issue of police misconduct. There is a certain power and self righteous frisson in imagining oneself to be a sentinel of justice against "indefatigable" oppression; to regard oneself as part of a scarce cadre of decent people. Against that, facts don't count for much.
Cross posted at Purple Wisconsin.
What does it mean to engage in civil discourse? I'd start by suggesting that it requires us to assume - until proven otherwise - the good faith of our opponents. If you find yourself believing that everyone you disagree with is monstrous or corrupt, you are almost certainly wrong. It also requires an openness to the facts; a willingness to at least adjust your argument in the face of the evidence.
Not one, but two Purple Wisconsin bloggers have endorsed - or come awfully close to endorsing - violence in the wake of the failure to indict Officer Darryl Wilson in the shooting of Michael Brown. They call it "disruption."
What are we to make of this? Imagine that a conservative blogger here called for secession from the Obama "regime" or wrote a jeremiad defending the need to "disrupt" society until the President respected the constitutional limits on his authority or until the rights of the "53 %" who fund our government are respected. Imagine that a blogger had written that "black people" ignore other black people who cause "white death" or were "cooperating" with violent black criminals. Imagine that a blogger had claimed that only a "scarce" number of black people were trying to be "dutiful members of the human race."
The call for - or tolerance of - "disruption" is a very extreme position. Now, of course, if I thought that the white people in the United States were engaged in a systematic campaign of genocide against black people - if I thought there was an "indefatigable pattern of black death at white hands" (in fact, interracial crimes are more likely to be black on white) - I'd call for "disruption" as well. But that would be an astonishing belief. To the extent it is based on a claim of deliberate indifference to widespread homicide, it implies that most of us are very bad people.
And if I thought these things, I would be wrong. While I suspect that race can race play a role in interactions between citizens and the police, there are, in fact, only relatively small differences in the likelihood that black or Hispanic - as opposed to white persons - will be stopped by the police. According to Justice Department statistics, blacks are slightly more likely than whites to report having been the subject of a traffic stop (13% v. 10%) or street stop (0.7% v. 0.6%). Roughly 1 % of the 25 % of all citizens who have had a face to face encounter with the police are subjected to force or the threat of force. The percentage for blacks (3.7% of those experiencing police encounters) is higher than that for whites (1.2%) or Hispanics (2.2%), but the fact is that the use of force or threat of force is a very rare event for blacks generally as well as for blacks who are stopped by the police.
But what about these differences in the reported use of force? A far left group called ProPublica calculates that young black males are much more likely to be killed by police as young white males (31/1,000,000 vs. 1.47/1,000,000), but this does not make such events frequent or even tell us much about police conduct. Statistically, young black males are also much more likely to commit homicides and other violent crimes (even though the overwhelming majority do not do so) and this is going to affect those numbers in ways that have nothing to do with bias. Are these police shootings justified? Is race a factor? We don't know. We do know that they are rare. While the numbers are disputed, it appears that two hundred African Americans are killed by the police each year. But there are over 6200 African American murder victims each year. Even if every one of the deaths caused by the police are unjustified or could somehow be eliminated, the impact on black victimization rates would be negligible. In a very large country, the law of large numbers will mean that there are always incidents - involving both blacks and whites - to talk about, but there simply is not an "indefatigable" parade of the improper use of force against black suspects.
Of course none of this means that we should ignore or minimize police brutality when it occurs (and it does). It does not mean that we should not take allegations of police misconduct seriously. It does not even mean that race is never a factor when interactions between young black men and police go wrong. But calls for "disruption" are predicated on claims that it is somehow "common" for police to wrongfully kill black people. That predicate is wrong. If there is an African American blood bath, it is not the police (or, for that matter, white people) who are causing it. If we are concerned about reducing black deaths, the police -as imperfect as they may be - are not where we should begin. Indeed, we need to acknowledge that the police are, on balance, the solution and not the problem.
In other words, if, to quote the hashtag, "black lives matter," we have remember that police protection is far more important for people in the inner city than it is for most of us in the suburbs. Black lives in the city are at risk in a way that the lives of people who live in safer areas are not.
So there is simply no justification for calls for - or the tolerance of - "disruption" which will, of course, harm innocent black folks already targeted with high levels of violence - not by the police - but by people that the police are trying to stop.
But returning to Haidt, moral positions are not always determined by the facts. Here, there seems to be a studied indifference to the facts - both of the Brown case itself and the larger issue of police misconduct. There is a certain power and self righteous frisson in imagining oneself to be a sentinel of justice against "indefatigable" oppression; to regard oneself as part of a scarce cadre of decent people. Against that, facts don't count for much.
Cross posted at Purple Wisconsin.
Wednesday, November 26, 2014
Lack of leadership on Ferguson
Rudy Giuliani had it right. The reason that we have heavier police presence in some (not all) areas with high concentrations of African Americans is some (not all) of these areas have a lot of crime. The purpose is not to protect white people from black people (most, but not all, violent crime is intraracial, although the matter may not be that simple) but to protect the African American residents of these communities.
That's not only a good thing; it is essential to the development of these communities. If you do not have public safety, you will have nothing else. No amount of social spending can make up for its absence. Complain, if you wish, about overpolicing but without a greater level of police protection in communities that need such protection, life would indeed be nasty, brutish and short.
But the need for heightened police protection is not without its costs. It means that there will be more contact between police and, in particular, young African American men. Sometimes these contacts will result in the use of force and sometimes things will go wrong, whether by innocent mistake, negligence or even malevolence. Cops are human beings and, therefore, as flawed as the rest of us.
It is not clear to me that use of force is disproportionately directed toward black persons who come in contact with the police. What evidence I have seen suggests that it is not. It is clear to me that there is nothing resembling "open season" on African American males.
But that doesn't mean that each such incident need not be taken seriously. Just as the improvement of underdeveloped communities require safety, it also requires public confidence in the rule of law. I also appreciate that these incidents are going to be viewed through the lens of our racial history. We live in a country that, while it has made great racial progress, still struggles with racial mistrust.
But mistrust - and misunderstanding - run in both directions. It is simply not the case that any of us have special knowledge of racial truth. None of us have special knowledge of what happened in Ferguson because, in the insidious phrase, we "look like" Michael Brown or Darren Wilson.
But even if that's so - or even if the opposite (police disproportionately target black men) is true, the frequency of police misconduct in all cases does not tell me what happened in any particular case. Even if was "open season" on young black males, knowing that would not help me decide what happened between Michael Brown and Darren Wilson.
The only way I can understand what happened is to carefully assess the testimony of witnesses and the physical evidence.
But that isn't what happens in our public discourse about the case. When, for example, someone writes an article and says only that Michael Brown was shot multiple times and was unarmed, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Being "unarmed" will keep you safe only if you do not attack someone who is. Last night, I actually heard Lawrence O'Donnell argue on MSNBC that, even if Brown charged Wilson, the latter could have "sidestepped" him. That's not a serious argument. It's the kind of thing that you say when you have nothing better.
When someone writes an article and says only that Brown had just robbed a convenience store, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Lots of people rob stores and don't attack the officers who arrest them.
It does no good to say that prosecutors have "disparaged" Brown by suggesting that the evidence does not establish that Wilson acted improperly. It is not "out of the norm," as Al Sharpton says, for a prosecutor to explain that the physical evidence does not support an indictment. It is, in fact, a prosecutor's job.
Based on what I have seen, however, it is not surprising that the grand jury could not return a true bill. The initial narrative about this case fell apart in the face of the physical evidence. There will always be questions and conflicts about what happened but I have yet to see anyone make a persuasive argument - based on the facts that exist rather than the ones they presume - that there is much chance to prove a crime beyond a reasonable doubt.
That's where leadership comes in. It is simply not responsible to say, in response to rioting, only that one "understands" the anger but believes that violence is nevertheless unwarranted. It is unwarranted but more is required. True leadership would point out that this was not an inexplicable outcome. It is also "understandable. "That's why most observers expected it.
Here in Milwaukee, we await a decision on the Dontre Hamilton case. I do not know what should be done. I haven't reviewed the evidence. It does appear that the District Attorney's office does not believe charges are warranted, but is reluctant to say so. The normal crowd of racialists that pass for "leaders" in Milwaukee won't lead. They'll follow the crowd.
Cross posted at Purple Wisconsin.
That's not only a good thing; it is essential to the development of these communities. If you do not have public safety, you will have nothing else. No amount of social spending can make up for its absence. Complain, if you wish, about overpolicing but without a greater level of police protection in communities that need such protection, life would indeed be nasty, brutish and short.
But the need for heightened police protection is not without its costs. It means that there will be more contact between police and, in particular, young African American men. Sometimes these contacts will result in the use of force and sometimes things will go wrong, whether by innocent mistake, negligence or even malevolence. Cops are human beings and, therefore, as flawed as the rest of us.
It is not clear to me that use of force is disproportionately directed toward black persons who come in contact with the police. What evidence I have seen suggests that it is not. It is clear to me that there is nothing resembling "open season" on African American males.
But that doesn't mean that each such incident need not be taken seriously. Just as the improvement of underdeveloped communities require safety, it also requires public confidence in the rule of law. I also appreciate that these incidents are going to be viewed through the lens of our racial history. We live in a country that, while it has made great racial progress, still struggles with racial mistrust.
But mistrust - and misunderstanding - run in both directions. It is simply not the case that any of us have special knowledge of racial truth. None of us have special knowledge of what happened in Ferguson because, in the insidious phrase, we "look like" Michael Brown or Darren Wilson.
But even if that's so - or even if the opposite (police disproportionately target black men) is true, the frequency of police misconduct in all cases does not tell me what happened in any particular case. Even if was "open season" on young black males, knowing that would not help me decide what happened between Michael Brown and Darren Wilson.
The only way I can understand what happened is to carefully assess the testimony of witnesses and the physical evidence.
But that isn't what happens in our public discourse about the case. When, for example, someone writes an article and says only that Michael Brown was shot multiple times and was unarmed, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Being "unarmed" will keep you safe only if you do not attack someone who is. Last night, I actually heard Lawrence O'Donnell argue on MSNBC that, even if Brown charged Wilson, the latter could have "sidestepped" him. That's not a serious argument. It's the kind of thing that you say when you have nothing better.
When someone writes an article and says only that Brown had just robbed a convenience store, he or she is leaving out almost every fact that is relevant in assessing Officer Wilson's conduct. Lots of people rob stores and don't attack the officers who arrest them.
It does no good to say that prosecutors have "disparaged" Brown by suggesting that the evidence does not establish that Wilson acted improperly. It is not "out of the norm," as Al Sharpton says, for a prosecutor to explain that the physical evidence does not support an indictment. It is, in fact, a prosecutor's job.
Based on what I have seen, however, it is not surprising that the grand jury could not return a true bill. The initial narrative about this case fell apart in the face of the physical evidence. There will always be questions and conflicts about what happened but I have yet to see anyone make a persuasive argument - based on the facts that exist rather than the ones they presume - that there is much chance to prove a crime beyond a reasonable doubt.
That's where leadership comes in. It is simply not responsible to say, in response to rioting, only that one "understands" the anger but believes that violence is nevertheless unwarranted. It is unwarranted but more is required. True leadership would point out that this was not an inexplicable outcome. It is also "understandable. "That's why most observers expected it.
Here in Milwaukee, we await a decision on the Dontre Hamilton case. I do not know what should be done. I haven't reviewed the evidence. It does appear that the District Attorney's office does not believe charges are warranted, but is reluctant to say so. The normal crowd of racialists that pass for "leaders" in Milwaukee won't lead. They'll follow the crowd.
Cross posted at Purple Wisconsin.
Saturday, November 22, 2014
Washington harasses school choice
In his latest column, George Will* describes the United States Justice Department's wrong-headed "investigation" of Wisconsin's school choice program for "discriminating" against students with disabilities. As we at the Wisconsin Institute for Law & Liberty have explained at length, the DOJ is proceeding on a contrived and erroneous legal theory that blurs the distinction between public and private. Will writes:
Now people will argue that private schools do not have certain obligations regarding special needs children that federal law imposes on public schools. In their view, this constitutes discrimination. Disabled students may not get the same services or accommodations in a private school that they will get in a public school. This, in their view, constitutes discrimination.
It's not. Public schools get funding to provide these services that is largely unavailable to choice schools. Just as importantly, federal standards for accommodating students with disabilities do not - and ought not - apply wholesale to private schools. The value of school choice is to encourage a multiplicity of approaches. Not all behavioral disabilities should be medicalized in the way typically encouraged by federal standards. Parents ought to be able to choose between alternative approaches for their children.
* Of course, George Will is on the board of the Lynde & Harry Bradley Foundation which provides funding to the Wisconsin Institute for Law & Liberty. I guess he likes what we do. Conservative board member of conservative foundation likes conservative legal organization. Who would have known?
DOJ’s perverse but impeccably progressive theory can be called “osmotic transfer.” It is called this by DOJ’s adversary, the Wisconsin Institute for Law & Liberty (WILL), which is defending Wisconsin children against Washington’s aggression. DOJ’s theory is: Contact between a private institution and government, however indirect or attenuated the contact, can permeate the private institution with public aspects, transferring to it, as if by osmosis, the attributes of a government appendage.Let me extend Mr. Will's remarks. Choice schools cannot discriminate against children with disabilities. Period. Full stop. Common claims to the contrary; suggestions that these schools "won't take" kids with special needs are just false. State law requires that choice schools must take all comers. If the number of applicants exceeds the spaces available, students must be selected by lottery (with a small exception for sibling preference).
Now people will argue that private schools do not have certain obligations regarding special needs children that federal law imposes on public schools. In their view, this constitutes discrimination. Disabled students may not get the same services or accommodations in a private school that they will get in a public school. This, in their view, constitutes discrimination.
It's not. Public schools get funding to provide these services that is largely unavailable to choice schools. Just as importantly, federal standards for accommodating students with disabilities do not - and ought not - apply wholesale to private schools. The value of school choice is to encourage a multiplicity of approaches. Not all behavioral disabilities should be medicalized in the way typically encouraged by federal standards. Parents ought to be able to choose between alternative approaches for their children.
* Of course, George Will is on the board of the Lynde & Harry Bradley Foundation which provides funding to the Wisconsin Institute for Law & Liberty. I guess he likes what we do. Conservative board member of conservative foundation likes conservative legal organization. Who would have known?
Wednesday, November 12, 2014
Why public collective bargaining privileges unions
Before the election, I had a column in the Journal Sentinel's Crossroads section reflecting on Scott Walker's historical significance. A reader - someone from Shorewood named James Anello - wrote a letter to the editor completely mischaracterizing my position and that of my "ilk." (If you find yourself said to be part of an 'ilk," it's never a compliment.)
Mr. Anello thinks that I was arguing that negotiating in good faith is bad. Not at all. What I was saying is that to impose a legally enforceable obligation on government to bargain with unions gives them an advantage over everyone else. No one else has a legally enforceable right to make the government bargain in good faith over whatever it is that they want the government to do. Here's is what I wrote, with the part quoted by Mr. Anello in italics:
I take the trouble to highlight this here because Mr. Anello's error is a common one. The mistake is to fail to see a collective bargaining as a petition to the government asking it to adopt a certain set of policies. You can argue that government unions should have this advantage, but you can't pretend that is doesn't exist or pretend that government has a legally enforceable obligation to negotiate with everyone who asks it to do something.
Nor, it seems to me, that you can argue that government should have a legally enforceable obligation to negotiate in good faith with everyone. Such a rule would tie up every government action in court with judges expected to apply a pretty amorphous standard - good faith - to uphold or strike down whatever the government has done.
Cross posted at Purple Wisconsin
Mr. Anello thinks that I was arguing that negotiating in good faith is bad. Not at all. What I was saying is that to impose a legally enforceable obligation on government to bargain with unions gives them an advantage over everyone else. No one else has a legally enforceable right to make the government bargain in good faith over whatever it is that they want the government to do. Here's is what I wrote, with the part quoted by Mr. Anello in italics:
While it is not often acknowledged, collective bargaining privileges organized public workers over the rest of us. Because it imposes a mandatory obligation to negotiate in good faith, public-sector collective bargaining requires the government to listen to unions. If this bargaining reaches an impasse — if the government says "no" — then disappointed unions often will have recourse to arbitration.
You and I don't have these rights. If the local school board ignores my request that it adopt merit pay for teachers or devote more money to science and math education, I am out of luck. I can try to elect new school board members, but I can't force the existing board to listen to me. Prior to Act 10, however, if the teachers union wanted tenure or some particular package of benefits, the school board had to listen and respond.
I take the trouble to highlight this here because Mr. Anello's error is a common one. The mistake is to fail to see a collective bargaining as a petition to the government asking it to adopt a certain set of policies. You can argue that government unions should have this advantage, but you can't pretend that is doesn't exist or pretend that government has a legally enforceable obligation to negotiate with everyone who asks it to do something.
Nor, it seems to me, that you can argue that government should have a legally enforceable obligation to negotiate in good faith with everyone. Such a rule would tie up every government action in court with judges expected to apply a pretty amorphous standard - good faith - to uphold or strike down whatever the government has done.
Cross posted at Purple Wisconsin
Tuesday, November 11, 2014
Nine random thoughts about the election
Because it seems to be a popular number.
1. After every election defeat, the losing side forms a circular firing squad. No matter which party has lost, the crossfire tends to come from three directions. One, we were cheated. Two, if we had only communicated who we really are, we would have won. Three, whoever was in charge of strategy and tactics screwed up and must be fired. It would be a mistake for the Democrats to believe any of them.
2. The Democrats weren't cheated. They didn't lose because of "dark money," "dirty tricks" or "voter suppression." All indications are that they spent as much as - if not more than - the GOP. There were no dirty tricks. Turnout was at record levels for a November gubernatorial election.
3, The problem wasn't that the voters didn't understand who the Democrats were. While their candidate didn't come across as a true believer (see below), the Democrats conveyed their message. You would have had to be unable to speak or understand English (or Spanish, for that matter) not to understand that the Democrats wanted to spend more money on public schools (but not vouchers) and raise the minimum wage. It was quite clear that the Democrats thought the Republicans were "against" women and minorities and liked "rich" people. The first two were not winning issues while the latter three were simply unbelievable - they have, if you'll permit me, jumped the shark for most voters.
4. Other than these insipid and hateful themes of the "war on women" and "dog whistle" politics (which I think the Democratic base wanted to see), the Democrats ran a pretty good race in Wisconsin. I would not have expected them to be able to match the recall turnout. Yet they did. But the GOP ran a good ground game as well. While I think the ads ran by Democrats and their allies often conveyed messages that were toxic and false, they were well executed. The problem may have been the message and not the way it was rolled out.
5. Mary Burke wasn't a good candidate but she wasn't an awful one. If the Democrats think that someone like Kathleen Vinehout would have done better, they are smoking the stuff that Ray Burke wants to make legal. Walker would have topped 55% against a candidate like that. It is true that another candidate - maybe the reluctant Ron Kind (best they stop waiting for him) or Russ Feingold - may have done better. But those guys weren't on offer.
6. The Republicans did not win because of gerrymandering. It has nothing to do with the state wide races. While the GOP's share of the legislature will exceed its share of the statewide top of the ticket vote, this will almost always be the case because Democratic voters tend to live in clusters. Take away Dane and Milwaukee Counties (really just the north half of Milwaukee) and Wisconsin is deep red.
7. While it partially contradicts my absolution of the Democrats' strategic and tactical approach, Last week's results hurt the idea of the stealth candidate. Part of the attraction of Mary Burke was that she could pretend to be anything because she had been, when it comes to politics, nothing. No record. No body of political expression. There is often a fascination with running candidates who claim to be "non-ideological" or say they are for "whatever works." Think of John Anderson, Ross Perot and, more recently, Jon Huntsman. The problem is that you can't know what "works" until you decide what you want to do. You can't even make judgments about what will work in particular without some set of beliefs about how the world works in general. Those general beliefs are a big part of our ideological differences. (Nevertheless, I do think that the Democrats' ideological preferences were expressed.)
8. I'm glad Brad Schimel won, but Attorney General should be an appointed office.
9. To my fellow conservatives, it was a great week to be us. But there are no permanent victories in politics and winning is only worthwhile if we make something of it. Expanded school and parental choice. Regulatory reform. An end to crony capitalism. A fresh approach to strengthening our urban areas. More economic freedom. Reform of the campaign finance laws. An end to John Doe gag orders.
Cross posted at Purple Wisconsin.
1. After every election defeat, the losing side forms a circular firing squad. No matter which party has lost, the crossfire tends to come from three directions. One, we were cheated. Two, if we had only communicated who we really are, we would have won. Three, whoever was in charge of strategy and tactics screwed up and must be fired. It would be a mistake for the Democrats to believe any of them.
2. The Democrats weren't cheated. They didn't lose because of "dark money," "dirty tricks" or "voter suppression." All indications are that they spent as much as - if not more than - the GOP. There were no dirty tricks. Turnout was at record levels for a November gubernatorial election.
3, The problem wasn't that the voters didn't understand who the Democrats were. While their candidate didn't come across as a true believer (see below), the Democrats conveyed their message. You would have had to be unable to speak or understand English (or Spanish, for that matter) not to understand that the Democrats wanted to spend more money on public schools (but not vouchers) and raise the minimum wage. It was quite clear that the Democrats thought the Republicans were "against" women and minorities and liked "rich" people. The first two were not winning issues while the latter three were simply unbelievable - they have, if you'll permit me, jumped the shark for most voters.
4. Other than these insipid and hateful themes of the "war on women" and "dog whistle" politics (which I think the Democratic base wanted to see), the Democrats ran a pretty good race in Wisconsin. I would not have expected them to be able to match the recall turnout. Yet they did. But the GOP ran a good ground game as well. While I think the ads ran by Democrats and their allies often conveyed messages that were toxic and false, they were well executed. The problem may have been the message and not the way it was rolled out.
5. Mary Burke wasn't a good candidate but she wasn't an awful one. If the Democrats think that someone like Kathleen Vinehout would have done better, they are smoking the stuff that Ray Burke wants to make legal. Walker would have topped 55% against a candidate like that. It is true that another candidate - maybe the reluctant Ron Kind (best they stop waiting for him) or Russ Feingold - may have done better. But those guys weren't on offer.
6. The Republicans did not win because of gerrymandering. It has nothing to do with the state wide races. While the GOP's share of the legislature will exceed its share of the statewide top of the ticket vote, this will almost always be the case because Democratic voters tend to live in clusters. Take away Dane and Milwaukee Counties (really just the north half of Milwaukee) and Wisconsin is deep red.
7. While it partially contradicts my absolution of the Democrats' strategic and tactical approach, Last week's results hurt the idea of the stealth candidate. Part of the attraction of Mary Burke was that she could pretend to be anything because she had been, when it comes to politics, nothing. No record. No body of political expression. There is often a fascination with running candidates who claim to be "non-ideological" or say they are for "whatever works." Think of John Anderson, Ross Perot and, more recently, Jon Huntsman. The problem is that you can't know what "works" until you decide what you want to do. You can't even make judgments about what will work in particular without some set of beliefs about how the world works in general. Those general beliefs are a big part of our ideological differences. (Nevertheless, I do think that the Democrats' ideological preferences were expressed.)
8. I'm glad Brad Schimel won, but Attorney General should be an appointed office.
9. To my fellow conservatives, it was a great week to be us. But there are no permanent victories in politics and winning is only worthwhile if we make something of it. Expanded school and parental choice. Regulatory reform. An end to crony capitalism. A fresh approach to strengthening our urban areas. More economic freedom. Reform of the campaign finance laws. An end to John Doe gag orders.
Cross posted at Purple Wisconsin.
Friday, October 31, 2014
Why the Journal Sentinel editorial board is wrong about Burke firing story
How are we to assess claims that Mary Burke was forced out of her own family's business in 1993?
The Journal Sentinel editorial board dismisses it all by telling us to "consider the source." I have applauded the editorial board for seeking to promote a diversity of opinion on their page. Here is, as they say, another view.
First, the board trashes the Wisconsin Reporter, a nonprofit news organization, because it has a conservative bent and is funded by the Bradley Foundation. (Yes, yes, so is the nonprofit I run. So are half the charities in Milwaukee.)
The attack on the Wisconsin Reporter is completely unfair. First, I have not noticed the editorial board dismissing the work of other nonprofits - say the Brennan Center, the Center for Media & Democracy, the League of Women Voters - simply because these groups have an ideological bent. It shouldn't. The fact that these groups have a perspective may effect the issues they emphasize and what they have to say about them. It doesn't mean that they make things up.
I know Matt Kittle, who runs the Wisconsin Reporter and have spent countless hours discussing a variety of stories with him. Matt does not run things that he has not confirmed in accordance with standard journalistic practice. He is as much a professional as the reporters at the Milwaukee Journal Sentinel.
The fact that the Wisconsin Reporter is a conservative outlet is relevant in assessing its work, but it is hardly a basis for dismissing what it has to say. It's report stands on its own merits.
In assessing the report, the editorial board attacks people rather than evaluating facts.
I would have been skeptical of the report about Burke if the only source was Gary Ellerman, a human relations person who was himself discharged from Trek and who now chairs the Jefferson County Republican Party. In addition, there have been allegations that he is no more measured and careful in his political expression than some of the people that have been added as bloggers at Purple Wisconsin in the past year.
This is not to say that Ellerman should be dismissed out of hand. Nothing about his background brands him as a liar. But if he was the only source, I would have conceded that the question is so unsettled as to be a minor story. I don't deny having a dog in the fight but I try very hard not to jump on allegations from my side that are undersupported.
But Ellerman wasn't the only source. Others confirmed what he said and the report became more plausible when it was corroborated by the company's former COO. Even allowing for the fact that Tom Albers gave the princely sum of $ 50 to Scott Walker, his confirmation of Ellerman's story makes it much more credible. The editorial board's ad hominem dismissal of Trek's former COO - "consider the source" - reads more like campaign literature than fair analysis.
But, for the editorial board, Albers is, as David Haynes tweeted, "discredited" because he is "vested" in the race. By that he means no more than Albers - who gave Walker's campaign the price of dinner for two and a couple of margaritas at La Perla - presumably wants Walker to win. But, by that standard, everyone who has had anything - good or bad - to say about Burke's tenure at Trek is "vested" in the race. No one can be believed. Yet the editorial board accepts Burke's claims of success in business - even though they are unsubstantiated by anyone who is not "vested in the race."
There is no end to this "consider the source" calumny. Burke's family stands by her - although they provide no detail of what actually did happen and won't provide documentation of her claims regarding her successes at Trek. Shouldn't we "consider the source?" Are they any less "vested in the race" than Ellerman or Albers? Members of the Burke family understandably don't want to hurt a relative and, to be honest, stand to gain quite a bit by having one elected Governor. There is, to be frank, less reason to believe them than there is to disbelieve Albers. As far as we know, he has no family or financial interest in the matter.
Having said all that, I might be less inclined to credit the story if Burke's own version of the events didn't tend to confirm it. Here's where we get into facts rather than people.
Burke now says that her position was "eliminated" because of "downsizing." You don't "eliminate" the job of someone who has, as Burke claims, been a phenomenal success, particularly if she's a member of the family that owns the company. You promote her. But that didn't happen. Of course, it's possible that she walked away from a company that still wanted her - even as it eliminated her job - but that is hard to believe.
Finally, the editorial board stoops to sexual politics to dismiss, rather than engage, Burke's critics. Certain sources from within Trek say that she acted like "a pit bull on crack." The editorial board plays the gender card to rule this criticism out of bounds. To them, it sounds "strikingly similar to the way other strong women have been portrayed once they reach positions of authority."
But it is not just women who are criticized for being overly authoritarian and demanding. In our fallen world, the sad fact is that there are bad managers and one of ways in which people manage poorly is to exalt themselves and be dismissive of their subordinates. One of the ways in which people manage poorly is to demand that their subordinates do what cannot be done, relieving the manager of the obligation to figure out how an organization's objectives can actually be achieved. There is no reason to think that women are incapable of making these mistakes. (Indeed, wouldn't it be sexist to believe they are not?) In dismissing this criticism, the editorial board is just as guilty of stereotyping as the "sexists" who they purport to oppose.
I don't know if this criticism of Mary Burke is accurate. I am sure that a dime store sexual politics won't help us answer the question.
Normally, I'd prefer a campaign limited to issues. But the Democrats have chosen to run someone for Governor whose resume, regardless of whether she was forced out in 1993, is astonishingly thin. To bolster the absence of a record , she has made claims about her long ago tenure at Trek that cannot be verified. Under those circumstances, this story matters and it can't be dismissed by attacking those who tell it.
So what's the truth? My own sense - trying to reconcile what Albers says with what Burke and her camp does and does not say - is that no one said "you're fired," but it was "agreed" that she should go and do something else.
But, as I'll explain in my next post, even the most favorable reading of her version of events undermines the case for Burke as Governor.
Cross posted at Purple Wisconsin.
The Journal Sentinel editorial board dismisses it all by telling us to "consider the source." I have applauded the editorial board for seeking to promote a diversity of opinion on their page. Here is, as they say, another view.
First, the board trashes the Wisconsin Reporter, a nonprofit news organization, because it has a conservative bent and is funded by the Bradley Foundation. (Yes, yes, so is the nonprofit I run. So are half the charities in Milwaukee.)
The attack on the Wisconsin Reporter is completely unfair. First, I have not noticed the editorial board dismissing the work of other nonprofits - say the Brennan Center, the Center for Media & Democracy, the League of Women Voters - simply because these groups have an ideological bent. It shouldn't. The fact that these groups have a perspective may effect the issues they emphasize and what they have to say about them. It doesn't mean that they make things up.
I know Matt Kittle, who runs the Wisconsin Reporter and have spent countless hours discussing a variety of stories with him. Matt does not run things that he has not confirmed in accordance with standard journalistic practice. He is as much a professional as the reporters at the Milwaukee Journal Sentinel.
The fact that the Wisconsin Reporter is a conservative outlet is relevant in assessing its work, but it is hardly a basis for dismissing what it has to say. It's report stands on its own merits.
In assessing the report, the editorial board attacks people rather than evaluating facts.
I would have been skeptical of the report about Burke if the only source was Gary Ellerman, a human relations person who was himself discharged from Trek and who now chairs the Jefferson County Republican Party. In addition, there have been allegations that he is no more measured and careful in his political expression than some of the people that have been added as bloggers at Purple Wisconsin in the past year.
This is not to say that Ellerman should be dismissed out of hand. Nothing about his background brands him as a liar. But if he was the only source, I would have conceded that the question is so unsettled as to be a minor story. I don't deny having a dog in the fight but I try very hard not to jump on allegations from my side that are undersupported.
But Ellerman wasn't the only source. Others confirmed what he said and the report became more plausible when it was corroborated by the company's former COO. Even allowing for the fact that Tom Albers gave the princely sum of $ 50 to Scott Walker, his confirmation of Ellerman's story makes it much more credible. The editorial board's ad hominem dismissal of Trek's former COO - "consider the source" - reads more like campaign literature than fair analysis.
But, for the editorial board, Albers is, as David Haynes tweeted, "discredited" because he is "vested" in the race. By that he means no more than Albers - who gave Walker's campaign the price of dinner for two and a couple of margaritas at La Perla - presumably wants Walker to win. But, by that standard, everyone who has had anything - good or bad - to say about Burke's tenure at Trek is "vested" in the race. No one can be believed. Yet the editorial board accepts Burke's claims of success in business - even though they are unsubstantiated by anyone who is not "vested in the race."
There is no end to this "consider the source" calumny. Burke's family stands by her - although they provide no detail of what actually did happen and won't provide documentation of her claims regarding her successes at Trek. Shouldn't we "consider the source?" Are they any less "vested in the race" than Ellerman or Albers? Members of the Burke family understandably don't want to hurt a relative and, to be honest, stand to gain quite a bit by having one elected Governor. There is, to be frank, less reason to believe them than there is to disbelieve Albers. As far as we know, he has no family or financial interest in the matter.
Having said all that, I might be less inclined to credit the story if Burke's own version of the events didn't tend to confirm it. Here's where we get into facts rather than people.
Burke now says that her position was "eliminated" because of "downsizing." You don't "eliminate" the job of someone who has, as Burke claims, been a phenomenal success, particularly if she's a member of the family that owns the company. You promote her. But that didn't happen. Of course, it's possible that she walked away from a company that still wanted her - even as it eliminated her job - but that is hard to believe.
Finally, the editorial board stoops to sexual politics to dismiss, rather than engage, Burke's critics. Certain sources from within Trek say that she acted like "a pit bull on crack." The editorial board plays the gender card to rule this criticism out of bounds. To them, it sounds "strikingly similar to the way other strong women have been portrayed once they reach positions of authority."
But it is not just women who are criticized for being overly authoritarian and demanding. In our fallen world, the sad fact is that there are bad managers and one of ways in which people manage poorly is to exalt themselves and be dismissive of their subordinates. One of the ways in which people manage poorly is to demand that their subordinates do what cannot be done, relieving the manager of the obligation to figure out how an organization's objectives can actually be achieved. There is no reason to think that women are incapable of making these mistakes. (Indeed, wouldn't it be sexist to believe they are not?) In dismissing this criticism, the editorial board is just as guilty of stereotyping as the "sexists" who they purport to oppose.
I don't know if this criticism of Mary Burke is accurate. I am sure that a dime store sexual politics won't help us answer the question.
Normally, I'd prefer a campaign limited to issues. But the Democrats have chosen to run someone for Governor whose resume, regardless of whether she was forced out in 1993, is astonishingly thin. To bolster the absence of a record , she has made claims about her long ago tenure at Trek that cannot be verified. Under those circumstances, this story matters and it can't be dismissed by attacking those who tell it.
So what's the truth? My own sense - trying to reconcile what Albers says with what Burke and her camp does and does not say - is that no one said "you're fired," but it was "agreed" that she should go and do something else.
But, as I'll explain in my next post, even the most favorable reading of her version of events undermines the case for Burke as Governor.
Cross posted at Purple Wisconsin.
Tuesday, October 28, 2014
Obfuscation on the minimum wage
Here's a bit of free advice. When economists - or any social scientist - tells you that "studies" show something, remain skeptical. As a general rule, there are almost always contradictory studies and those that purport to "show" some real world cause and effect usually do not.
This op-ed by Mike Rosen, an MATC instructor with decidedly heterodox views of economics, The sayt that, the science is "in," minimum wages do no harm.
But that's just wrong. Some studies show no loss of employment. Others do. Indeed, a recent study by the John K. MacIver Institute for Public Policy shows that an increase in the minimum wage to $15/hr would cost 90,000 jobs.
This shouldn't surprise us. Basic theory tells us that the impact of a minimum wage increase will be complicated. In almost all places and at all times, some workers will make more money, some will lose their jobs, some will keep their jobs and work fewer hours, others will be made to work harder and some will never be hired. The return on labor saving technology will increase. There will be winners and losers and there is no guarantee that the poorest of low wage workers (not all low-wage workers are poor) will be ones who are helped.
Because things other than the minimum wage will be affecting unemployment and low-wage job growth, it is difficult to figure out - even after the fact - what has happened. To simply say, well, we raised the minimum wage and employment didn't decline may or may not mean that there are no fewer workers today than there would have been had the minimum wage not increased.
The idea that politicians - or even economists - can find the "sweet spot" where benefits exceed costs seems implausible. Indeed, where this inscrutable "sweet spot" might be will differ from place to place, time to time and industry to industry. Even if "we" decide that we know what the benefits and costs are and the benefits of any particular minimum wage increase exceeds the cost, "we" are not the ones that have to pay those costs. "We" are not the sixteen year old who doesn't get her first job at McDonald's or the grandmother who loses her job - or has her hours cut - at WalMart.
This is why increasing the minimum wage is an inefficient and counterproductive way to help low income workers. If we want to help the working poor, things like the earned income credit or food stamps seem less likely to have harmful effects.
Rosen says that minimum wage employers are big companies who are somehow immune from concerns about the marginal cost of labor exceeding its productivity. This, not to put too fine a point at it, is preposterous. fact, Rosen can't actually believe it. Even he would concede that there is an increase - say to $15 or $20 or $30/hr - at which the "productivity of labor" would be lead to declining - even catastrophically declining - rates of employment.
What he really means is that some more modest increase will not have a negative impact that he is not willing to accept. He seems to base this on an assumption that national chains, unike "Mom and Pop" stores, are either high margin businesses who can afford to lower their margins or have market power that would permit them to pass increases on to customers.
I doubt that. Wal-Mart, to take an example, is successful because it is a low margin business. It works because it has figured out how to provide acceptable (if lower quality) goods at astonishingly low prices. If you raise its costs, it will figure out other ways to lower them. This is because it has little margin to erode (as rich as they are, the Waltons are not going to keep open stores that lose money) and little room to raise prices - if Wal Mart charged Target prices, no one would go to Wal Mart. The latter's customer loyalty is rooted in little but price.
The idea that you can increase the cost of hiring low skilled workers without increasing the demand for them is like saying that you can raise the price of a good - even a popular one like an iPhone 6 - without dissuading some people from buying it. There are, I suppose, cases where this could be true - where, as economists say, demand is price inelastic - but it almost never is. I doubt that the demand for counter workers at Burger King or greeters at WalMart are among those cases.
For example, let's say that the minimum wage were increased to $ 10.10/hr. The cost of employing those who actually earn the current minimum - a relatively small number - would increase by almost 40%. Does anyone really believe that this would not decrease the demand for such workers? Is it even remotely likely that such an increase would not create powerful incentives for employers to find ways to employ fewer of them. It is those who actually earn minimum wage who are most likely to be hurt.
So why do our friends on the left work so hard to avoid the obvious. First, increasing the minimum wage is politically popular. People support it because it does not seem to cost them anything (unlike welfare benefits) and they imagine that the pinch will be felt by rich people who "can afford it." Second, those who lose when minimum wages arise are invisible. They tend to be people who did not get something - a job or increased hours - that they otherwise would have. No one knows who they are. Finally, for these reasons, its free "generosity." It is a chance to put on the cloth of righteous and appear magnanimous without having to pay for the privilege.
Don't believe me? Here's one more thing to ponder. Democrats applaud Mary Burke for announcing that she knows, as a business woman (someone who worked in the family business before apparently dropping out of the work force in 2007) that minimum wage hikes will not hurt business. Yet her family business - the same one from which she derived millions to spend on her campaign - shipped jobs to China - where it does not pay US minimum wages - to lower labor costs.
I am not about to criticize Trek for that. But it lies ill in the mouth of Mary Burke to advocate for imposing costs on others that she and her family would not accept for themselves.
This op-ed by Mike Rosen, an MATC instructor with decidedly heterodox views of economics, The sayt that, the science is "in," minimum wages do no harm.
But that's just wrong. Some studies show no loss of employment. Others do. Indeed, a recent study by the John K. MacIver Institute for Public Policy shows that an increase in the minimum wage to $15/hr would cost 90,000 jobs.
This shouldn't surprise us. Basic theory tells us that the impact of a minimum wage increase will be complicated. In almost all places and at all times, some workers will make more money, some will lose their jobs, some will keep their jobs and work fewer hours, others will be made to work harder and some will never be hired. The return on labor saving technology will increase. There will be winners and losers and there is no guarantee that the poorest of low wage workers (not all low-wage workers are poor) will be ones who are helped.
Because things other than the minimum wage will be affecting unemployment and low-wage job growth, it is difficult to figure out - even after the fact - what has happened. To simply say, well, we raised the minimum wage and employment didn't decline may or may not mean that there are no fewer workers today than there would have been had the minimum wage not increased.
The idea that politicians - or even economists - can find the "sweet spot" where benefits exceed costs seems implausible. Indeed, where this inscrutable "sweet spot" might be will differ from place to place, time to time and industry to industry. Even if "we" decide that we know what the benefits and costs are and the benefits of any particular minimum wage increase exceeds the cost, "we" are not the ones that have to pay those costs. "We" are not the sixteen year old who doesn't get her first job at McDonald's or the grandmother who loses her job - or has her hours cut - at WalMart.
This is why increasing the minimum wage is an inefficient and counterproductive way to help low income workers. If we want to help the working poor, things like the earned income credit or food stamps seem less likely to have harmful effects.
Rosen says that minimum wage employers are big companies who are somehow immune from concerns about the marginal cost of labor exceeding its productivity. This, not to put too fine a point at it, is preposterous. fact, Rosen can't actually believe it. Even he would concede that there is an increase - say to $15 or $20 or $30/hr - at which the "productivity of labor" would be lead to declining - even catastrophically declining - rates of employment.
What he really means is that some more modest increase will not have a negative impact that he is not willing to accept. He seems to base this on an assumption that national chains, unike "Mom and Pop" stores, are either high margin businesses who can afford to lower their margins or have market power that would permit them to pass increases on to customers.
I doubt that. Wal-Mart, to take an example, is successful because it is a low margin business. It works because it has figured out how to provide acceptable (if lower quality) goods at astonishingly low prices. If you raise its costs, it will figure out other ways to lower them. This is because it has little margin to erode (as rich as they are, the Waltons are not going to keep open stores that lose money) and little room to raise prices - if Wal Mart charged Target prices, no one would go to Wal Mart. The latter's customer loyalty is rooted in little but price.
The idea that you can increase the cost of hiring low skilled workers without increasing the demand for them is like saying that you can raise the price of a good - even a popular one like an iPhone 6 - without dissuading some people from buying it. There are, I suppose, cases where this could be true - where, as economists say, demand is price inelastic - but it almost never is. I doubt that the demand for counter workers at Burger King or greeters at WalMart are among those cases.
For example, let's say that the minimum wage were increased to $ 10.10/hr. The cost of employing those who actually earn the current minimum - a relatively small number - would increase by almost 40%. Does anyone really believe that this would not decrease the demand for such workers? Is it even remotely likely that such an increase would not create powerful incentives for employers to find ways to employ fewer of them. It is those who actually earn minimum wage who are most likely to be hurt.
So why do our friends on the left work so hard to avoid the obvious. First, increasing the minimum wage is politically popular. People support it because it does not seem to cost them anything (unlike welfare benefits) and they imagine that the pinch will be felt by rich people who "can afford it." Second, those who lose when minimum wages arise are invisible. They tend to be people who did not get something - a job or increased hours - that they otherwise would have. No one knows who they are. Finally, for these reasons, its free "generosity." It is a chance to put on the cloth of righteous and appear magnanimous without having to pay for the privilege.
Don't believe me? Here's one more thing to ponder. Democrats applaud Mary Burke for announcing that she knows, as a business woman (someone who worked in the family business before apparently dropping out of the work force in 2007) that minimum wage hikes will not hurt business. Yet her family business - the same one from which she derived millions to spend on her campaign - shipped jobs to China - where it does not pay US minimum wages - to lower labor costs.
I am not about to criticize Trek for that. But it lies ill in the mouth of Mary Burke to advocate for imposing costs on others that she and her family would not accept for themselves.
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