Robin Vos' proposed amendment to choice funding formula would not "gut" public schools

A current legislative proposal, introduced by Speaker Robin Vos,  to change the funding mechanism for the statewide school voucher program have been widely mischaracterized. For example, a recent article in the Journal Sentinel suggests the "districts with voucher students face a funding cut" and that proposed funding mechanism for the statewide (not Milwaukee) voucher program could "cost" districts with voucher students (other than Milwaukee) $ 22 million dollars next year. An article yesterday said that, under existing law, districts are allowed to simply "recoup" the funds they lose due to participation of students in the choice program.

It's true that current law permits districts to recoup reductions in state aid to pay for vouchers for children a district no longer educates, but it isn't the whole story. And, under the Vos amendment, districts would still be able to recoup aid reduction..

Let's start with existing law. Although the districts may recoup the reduction in state aid attributable to a student departing for a private school, whether that reduction amounts to a "loss" depends on the circumstances.  But many districts are doing much more than "recouping" what they have lost in state aid.

Last June, my organization released a report concerning the contemplated statewide expansion of school choice. We pointed out that changes in the way that vouchers were funded statewide could create a "school choice bonus" for districts with students departing for private schools. This, we explained, was because districts could continue to count departing students for purposes of their revenue limit and state aid. State aid, in turn, would only be reduced by the amount of the voucher. Because this will invariably be less than the revenue limit, districts could receive a combination of state aid and local property tax revenue greater for each departing student than the amount by which their state aid would be reduced. Thus, while districts receive less total revenue, their revenue per student would - in almost all - if not all - instances, increase.

Apparently some legislators believed that the funding formula as passed would permit districts to tax only to the extent of their lost revenue per departing student or that, in any event, districts would not levy up to the revenue limit for students that they no longer educated. But that's not what has happened.  According to the non-partisan Legislative Fiscal Bureau, most school districts, which have children in the voucher program, have helped themselves to the school choice "bonus" that we predicted and then had the temerity to "blame" the voucher program for the excess taxes that they chose to impose. The MacIver Institute highlights this issue.

The question is this: Should school districts be able to continue to receive state aid and levy taxes for students that they no longer must educate even if the sum of state aid and taxes exceeds the amount of revenue they lose for each departing student? Districts are not simply "recouping" lost funds. Those who choose to tax to the extent of their revenue limit are making up for what they have lost and then some.

At very low levels of participation, it is possible that the savings attributable to departing students will be less than the voucher amount (and lost revenue) for those students. The impact won't be large but it may make sense - both for the school districts and taxpayer equity (it is not clear why there should not be a local component of voucher funding) to allow districts to recover some or all of the portion of their lost revenue. Of course, at higher levels of participation, a well managed district ought to be able to offset revenue losses because marginal costs should become closer to average costs and the aid reduction will always be substantially less than the average cost per student.

In any event, the amendment to the law proposed by Speaker Vos would only change the timing of this school choice "bonus." Rather than allow school districts to count all choice students (kids that a district no longer educates) for purposes of state aid and taxing authority immediately, it "phases" in the counting of these students as would be the case if these were new students (and phases them "out" after they no longer attend a private school within the district). In other words, the Vos amendment only changes the timing of the school choice "bonus."

The public narrative has been that current law simply drains the public schools and the amendment would make it worse. It's not that simple.

Cross posted at Purple Wisconsin.

May Justice Scalia rest in peace and his work continue

This weekend, America lost a great man. Justice Antonin Scalia was, more than anything else, committed to law as a discipline;  as a way of resolving questions that is distinct from - and more limited than - politics, economics and moral philosophy. Judges, in his view, are not charged with the capacious inquiry into what is "right," but a more limited duty to decide what is and is not legal.

To that end, he championed interpretive methods - ways of deciding cases - that limited judicial power and discretion. He was a champion of "textualism," arguing that constitutional and statutory language should be read to mean what it says. (It would surprise the general public to know that this common sense approach is quite controversial among certain elements of the legal community.) Justice Scalia was committed to the notion that, if the language of a law is not clear, judges should not simply give it their preferred meaning, but should attempt to discern its "original meaning," i.e., determine what it meant to those who adopted it and gave it the force of law.

As an advocate of plain meaning and originalism - two ideas that were met with derision among legal sophisticates when I attended law school - Justice Scalia moved the law. While I did always agree with him - I thought his view of executive and administrative power was too generous and his views on what cases can and cannot brought in federal court too limited - we are closer to a proper understanding of our Constitution than we were thirty years ago.

Because he believed in judicial modesty, Justice Scalia would not have wanted the selection of his successor to be the existential battle that it is likely to become. He did not believe that courts should have enough power and discretion to make the question of who sits on them as important as it has become.

But it is.

While the Supreme Court is routinely described as "conservative," it has a very disciplined bloc of four members firmly ensconced in the doctrines and understanding of the legal left. Justices Ginsburg, Breyer, Sotomayor and Kagan would dramatically change our constitutional jurisprudence. On a long list of issues - affirmative action, free speech, freedom of religion, federalism - a fifth vote for this group will change current doctrine.

The Senate is not obligated to allow President Obama to change the Court in this way. It's right to "advise and consent" - its duty to exercise independent judgment on judicial nominees - says otherwise. That duty is not limited to passing on a nominee's legal qualifications. It is also free to insist that a nominee have demonstrated a proper understanding of the Constitution. It is obligated to ensure that a nominee have a commitment to federalism, the separation of powers, individual liberty and the written Constitution.

If the Senate is unable to confirm the President's nominee, it will not be "obstructing" the process but playing its constitutional duty in that process. It has absolutely no obligation to agree to the President's choice and, indeed, has a duty to exercise its independent judgment.

It has been eighty years since a vacancy arising in the year of a Presidential election has been filled in that year. In 1956, President Eisenhower made a recess appointment of William Brennan, but Justice Brennan was nominated and confirmed in 1957 - after the President was re-elected. In 1968, Chief Justice Earl Warren announced his retirement and President Lyndon Johnson - like Barack Obama a lame duck -  nominated Abe Fortas to replace him. Fortas' nomination was blocked by filibuster. The people elected Richard Nixon and it was Nixon who nominated Warren Burger to fill the vacancy and the next Congress that confirmed him.

The future direction of the Court is in the balance and the nominee is likely to serve for a generation. With the presidential election upon us, the people ought to be heard on who will fill this vacancy.

The Media: Speech for me and not for thee?

Over at Right Wisconsin, I have a piece addressing the legacy media's blindspot on campaign regulation and disclosure. In general, journalists understand that compelled disclosure of the identity of speakers can chill speech. This is why they support laws that shield journalists from the obligation to disclose the identity of their sources. Compelled disclosure might cause those sources to dry up.

It's a defensible position - one I generally share - but it comes at a cost. The public's right to know - to assess the credibility of sources and the journalists who rely on them - is compromised. But that compromise may be worth it because it encourages speech - by sources and those who report on them - that would otherwise not occur.

The same is true of compelled reporting of the identity of those who pool their resources to speak. The public may find the identity of those behind a message useful in assessing the message and the politicians who support it. But forced reporting may deter people who do not wish to expose themselves to retaliation or disapprobation. There is a trade-of to be made and distinguishing between express and issue advocacy may be a good place to draw the line.

I could make the same point about the legacy media's typical attitude on "coordination." i.e.,  the idea that cooperation with a candidate to convey a message that the candidate supports makes the resources spent to convey that message a "contribution" to a candidate. This requires that the "contribution" be disclosed, but coordination is not -as is so often falsely reported - just about disclosure. A coordinated expenditure not only needs to be disclosed, it cannot be made at all. The poor soul who makes it - who spends money to speak  - may go to jail for exceeding the limits on contributions.

Of course, the media can coordinate as well as anyone else. It can find out what a candidate wants to say and, if it supports that message, use its considerable resources to convey it. In doing so, it confers a substantial benefit upon the candidate. Yet I am sure that the media would scream long and loud - and rightly so - about a law that would make its reportage a campaign "contribution." To do so would improperly burden freedom of speech and the open exchange of ideas.

But why should the media - corporations who already have a great big soap box - have greater rights than those who must rent that soap box?

The answer is not obvious. Legacy media often argue that the press is "special" - sort of like a utility -  that is responsible and trustworthy in a way that people who have to pay for space in their pages and time on their air are not. This is not only a dubious distinction (there is no reason to assume it is true), it is an increasingly incoherent one. Barriers to entry in the communications field have fallen away. Anyone can build a website. Anyone can stream video content. The only thing that distinguishes those who can charge others to be included in their content from others is market power. Market power seems like a poor basis on which to allocate speech rights.

Isn't their a difference between "legitimate" news stories and a sixty second ad spot?  Not always.  An ad may well reveal important information that the legacy media has ignored. For example, the recent Benghazi hearings highlighted disclosures that Hillary Clinton apparently knew - or at least believed - that attacks on the American embassy were organized terrorism and not a popular uprising in response to a video critical of Islam. Yet she seems to have told - or at least acquiesced in telling - the public something else. One would think that this was a compelling disclosure - one of Watergate-like proportion. But, while you may find the facts buried in the ninth graf, the legacy media has blown off the story. Its journalists have generally preferred to emphasize Clinton's supposed "triumph" at the hearing by which they seem to mean that she did not go all Col. Nathan Jessup on Trey Gowdy. (Indeed, Washington Post fact checkers have tied themselves into knots to avoid acknowledging the obvious.)

But even if you dispute my view of the matter, a sixty second "phony issue" ad pointing out another view would seem as relevant to the public's right to know and as much a contribution to our public discourse as anything in the pages of the Washington Post or seen during the nightly news.

Nor can we assume that the media is not a "special interest." Just about anyone - including people with a variety of interests - can own a media company. In any event, what the New York Times wants is not intrinsically of greater value than what George Soros or David Koch want. It should have no greater First Amendment rights.

What you didn't just read in the Journal Sentinel

The Wall Street Journal somehow got its hands on internal GAB e-mails regarding the John Doe. The Journal Sentinel reported on the revelation but decided to make the thrust of its story the belief of one GAB staff attorney, Shane Falk, that Scott Walker really was a target of the investigation. This contradicted a public statement by Special Prosecutor Fran Schmitz that he was not. There was, apparently, bickering among the prosecutors.




I think the paper missed the story. Completely.




The more significant revelation - completely unreported by the Journal Sentinel - was that Falk was concerned about the impact of Schmitz' statement on the Burke campaign. Following Schmitz' statement that Walker was not a target, Falk blew up. He wrote three consecutive e-mails (including one that accused Schmitz of lying) that included the following:

If you didn’t want this to have an effect on the election, better check Burke’s new ad. Now you will be calling her a liar, This is a no win. I encourage you to roll with it, or tone down the press release a bit more to focus on how many times you said ‘alleged’ or say that people are drawing conclusions that have not yet been proven in a court of law or something.

In other words, a lawyer from the GAB was concerned that Schmitz was hurting the Burke campaign. That's a rather significant revelation.




Now, I appreciate that there is a benign reading of this. Falk may not have wanted the investigation to affect either candidate. Of course, there is no indication that he expressed concern over other statements and leaks which placed Walker in a bad light. But perhaps they just haven't come to light.
In addtion, the e-mail must be read in light of Falk statement - in another e-mail - that the  "sheeple" who elected Walker might have done it even in the absence of what he regarded as "dark money" and "propaganda."




But more fundamentally, it ought to have been no concern to Falk how the GAB or prosecutors' actions affected Burke's campaign. She decided to turn the investigation into a political football. If the guy in charge of the investigation didn't think the investigation pointed to Walker, it should have been of no moment that this contradicted a Burke campaign ad. She, after all, was the one who decided to run it. If Falk thought Schmitz didn't understand the investigation he was running, that should have been the issue - not concern for Burke.




No matter how you view this, I should think the fact that a supposedly non-partisan and neutral investigator was complaining about contradicting Burke's politicization of the investigation is quite newsworthy.




Cross posted at Purple Wisconsin

#BlackLivesMatter and Nativism: Demagoguery at work

We see two political sentiments motivating powerful minorities of voters. The first is nativism, seen in the candidacies of both Donald Trump and Bernie Sanders. The targets are illegal - and sometimes legal - immigrants and free trade.

There are some legitimate concerns about the former. A nation ought to have a secure border and need not accept persons in the country unlawfully as a complete fait accompli, entitled to all the accoutrements of citizenship. But mass deportations are both unrealistic and undesirable and our economic woes are not caused by hard-working Mexicans. 

Trump and Sanders' railing against free trade simply highlights their shared economic ignorance. And, no, the fact that you can make money on real estate deals and licensing your name does not mean you understand how governments ought to regulate - and not regulate - markets. It means you know how to get yours. Nothing wrong with that, but it is not necessarily a translatable skill in this context.

But Sanders and Trump are doing well (although neither will ever command a majority) and much of their appeal is not about the particulars of immigration policy or international trade, but, as I say, the sentiment. It is about the notion that our problems can be blamed on someone else. They are doing something to us. What we need to do is blame them.

The #BlackLivesMatter movement operates in an equally emotion-laden but fact free environment. There are indeed enormous problems - including enormous problems with violence in the black community - but they are not caused by the police. Even if we assume that all are unjustified, officer-involved shootings are, at most, a rounding error in calculating black victimization rates. Indeed, while the question is vexed, it is not clear that blacks who have contact with police are more likely than whites who have contact with police to become involved in a violent confrontation with officers. 

Anytime a police officer uses force against a citizen a thorough investigation is in order. Because we must allow some people to use lethal force to enforce the law, we must ensure that they use it only to enforce the law and only to enforce it. But politicizing the question is flat out demagoguery.

And it is evasive demagoguery. It is the demagoguery of a grievance industry that has failed to deliver in much the same way as the nativists egged on by Trump and Sanders will fail to deliver.

Cross posted at Purple Wisconsin.

Speakers can't be kicked out of the pool

In a column yesterday in the Milwaukee Journal Sentinel, Emily Mills argues, again, for a blatantly unconstitutional campaign finance scheme. She wants public financing with limits on expenditures. The law is clear that expenditure limits can be imposed on only on candidates who choose to accept public financing. It is also clear that expenditure limits cannot be imposed on those who those who refuse it. The law is clear that independent persons and organizations remain free to spend what they want.

But Mills apparently wants to go beyond that. She wants to stop spending and then permit it to continue on those terms that she approves of. As she puts it, she wants to kick everyone out of the pool and then invite every one back into the pool - if they'll play by the Mills Rules.

But the Supreme Court has said that  you can't kick people out of the pool. You can't prevent people from combining their resources (although you can limit the size of contributions to candidates) and using them to express themselves on candidates and issues.

I do appreciate that people on the lament this robust protection of association and expression just as they increasingly oppose the rest of the First Amendment.  The omelette of equality requires breaking a great many eggs, if you will.

But the law is what it is.

Cross posted at Purple Wisconsin.

The unbearable silliness of Trump

There's really no question that Donald Trump's performance in the GOP debate was childish and boorish. Often he simply blustered and stumbled to barely coherent responses, He bragged about buying politicians and stiffing his creditors. He whined about being treated unfairly and confused common standards of decency with political correctness. He asked us to believe that he can bend foreign governments to his will. Yet he can't even handle Megyn Kelly.

In the days since then, he's only made it worse. I understand that Twitter is not exactly a forum for the expression of any thought that is much more than a sentiment, but his feed reads like that of an over fresh high school kid. The man is an embarrassment.

And yet there are people for whom he apparently strikes a chord. They are either willing to overlook his aggressive ignorance and peevish megalomania or, worse, mistake them for virtue. Some of us seem to believe that the more a politician shows disregard for common courtesy and the facts, the more he's speaking "truth" to some imagined "power." They mistake bombast for candor and vulgarity for strength.

When Trump is wrong (and he often is), his supporters see it as being "unscripted." They see his complete lack of depth and detail on any policy question as a commitment to "action" rather than "talk." That no one seems to know what that "action" will be (other than building a wall on the border) does not matter. The guy builds a few casinos, licenses his name to a lot more and fake-fires people on television. He'll get stuff done.

Some on the left want to say that Trump offers some kind of unveiled conservatism, but that's preposterous. He is not conservative.  He is a big government crony capitalist who has fed at the subsidy trough and advocated for eminent domain abuse. He is pro-choice (or was, until yesterday afternoon) and a supporter of Obamacare. He has contributed to Hillary Clinton. If anyone in the current GOP field would share Obama's ambitious view of what a President can and ought to do - who would use his pen and phone rather than the tools the Constitution provides - it is Trump.

I am not sure that much of his support can be articulated in political terms. He is, as some one wrote, the first "post-policy" candidate. His proposals generally boil down to "I'll be terrific." He is someone who appeals to voters who judge politicians in the same way that they judge movie stars, mistaking celebrity for competence and peacock bravado for insight. He may be the first sign, as Neil Postman once wrote, that we may well actually amuse ourselves to death.

But nothing is that simple. Trump does tap into a resentment of the status quo that can be found across the political spectrum. He appeals to the belief that there is a "they" out there (including, ironically, guys like him) who are taking advantage of guys like us.  Who better to tame the one-percent than one of their own? His sometimes ugly appeal to nativism - blame Mexico! blame China !-  is present on both the left and the right. Trump wants to build a physical wall. Bernie Sanders wants to build one with trade restrictions.

But he has an appeal to some conservatives as well. For those inclined to the right, there is frustration that our leaders too often assume office and come to prefer power to principle. They don't reshape our government as much as they reshape themselves. Maybe someone who doesn't act like a politician will be different. But, of course, difference is only different. It's not necessarily better.

Because his appeal is to sentiment and not reason, it's just about impossible to argue with a Trumpkin. They have as little patience with reality as he does. They seem to believe that Putin will swoon before the Donald's faux Alpha Male persona. He'll do things that no one else can or will do because … well … just because.

This is a very limited appeal. Trump does worse in two-way match-ups than almost anyone in the GOP field and he will never get more support than what he has now. Sixty-two percent of the public say that they wouldn't vote for him under any circumstance.

And the support he has will erode. It is easy to say you like someone to a pollster, but harder to actually vote for him. When a candidate's appeal is novelty and entertainment and the frisson of poking in the Man in the eye, he has a short shelf life. These things get old and boring.

In the end,  politics is not about emotional release. However real the frustrations of the left and the right, populists like Trump are rarely the answer. The government cannot be seized by a strong personality who will make the world anew. It cannot be restructured by someone who refuses to understand the issues and offers his impatience for them as a virtue. Playground bullying - name calling and strutting - do not constitute discourse.

Eventually the voters - or enough of them because you can fool some of the people all of the time - figure this out. Many of the people who now support Trump haven't thought much about it. But they will.

Trump too shall pass.

Cross posted at Purple Wisconsin.

Schools are not "underfunded" and have sold "local control"

Ernie Franzen says that Scott Walker should listen to local school principals who 1) want more money from the state and 2) want the state to leave them alone to spend this additional funding as they wish. These principals bemoan the fact the local school boards have much less control over school funding and operational decisions than they did just "a few decades ago." He notes that some of them come from Republican areas -  as if school boards in those areas imposed political litmus tests on their hires.

Here is a fact that the legacy media seems allergic to: Over almost any significant period of time you want to look at, per pupil expenditures on K-12 education has increased at a rate well above the rate of inflation. For example, according to the United States Department of Education, from 1987 to 2012, real per pupil spending on K-12 education in Wisconsin increased from $ 7960 to $ 11,946. That is a real increase of 50.1%. This is exclusive of federal funds (which have also increased).

No, that is not a misprint. During the same period that the principals bemoan the loss of local control, local school districts got 50% more to spend. Now, I remember 1987. It wasn't a different world. Urban school districts had challenges. Teachers had to be paid. Children were learning.

During this same period in which school districts received much more funding, certainly we saw improved results. No. No, we actually didn't. By every measure we have, achievement and attainment remained flat. We spent a lot more money and we didn't get any smarter. And while it is true that spending has stepped back a bit since 2011 (although the increase in real spending over the almost any relevant period remains robust),  Act 10, like it or not, also substantially reduced school costs. However you look at it, over the "a few decades." schools have gotten a lot richer and haven't got any better.

Now, I suppose it is possible that schools that enjoyed a 50% real increase in funding while yielding no improvement in results are "underfunded." But it sure is unlikely. In fact, the claim is pretty much preposterous.

There is no doubt that local control has diminished during this same period. School districts have revenue caps and Act 10 restricted the scope of collective bargaining. Federal money is never ever free,
But it hardly lies in the mouths of local school districts to question the founders of their feast. If the state is going to substantially increase its share of the bill for K-12 education, it is going to want to make sure that the money is spent properly. It may do this well or poorly, but it is going to do it.



Cross posted at Purple Wisconsin.

What was wrong with the Doe

In the wake of the Wisconsin Supreme Court's decision on the John Doe investigation, SpeciaL Prosecutor Fran Schmitz issued a strident statement criticizing the Court's decision. Losing an important case is always disappointing and a lawyer is certainly free to publicly differ with the outcome. But Schmitz' statement is revealing.

He says the Court's ruling "defies common sense" because now someone who contributes $ 25 to a candidate will have his or her name disclosed while someone who gives $ 100,000 to a group who closely coordinates with a candidate will not. That may be so and it may not be desirable, but it is a function of Wisconsin's outdated campaign finance law and not some distortion of that law by the court.

Explaining this stuff in a column length piece is difficult, but here is the problem in a nutshell. The state's campaign finance law applies only to expenditures undertaken for a "political purpose." The statute defines this as anything done to influence an election. Every lawyer with a passing familiarity with campaign finance law knew that this definition was unconstitutional. To avoid that problem, the Government Accountability Board has sometimes - but not always - made clear that the law is limited to express advocacy - calls to elect or defeat a candidate - or its "functional equivalent." Something is the "functional equivalent" of express advocacy only if it is susceptible of no interpretation other than a call to elect or defeat a candidate. This is not my opinion. It is textbook constitutional law.

But the Doe prosecutors were attempting to apply the law to expenditures for things that were not express advocacy or its functional equivalent, i.e., to things that are normally not subject to Wisconsin's campaign finance law. They justified their actions by alleging that these expenditures were "coordinated" with the Walker campaign. The concept of coordination has long been known in campaign finance law but little understood and rarely explored. Wisconsin law does not adeaquately define it or make clear the type of expenditures to which it might be applied.

That's a huge problem. When the state seeks to regulate political activity, it must do so in a very narrow and very clear manner. If it wishes to treat coordinated expenditures as contributions to a candidate, it must adequately define both the conduct that conduct that comprises "coordination" and the content of speech that might be considered "coordinated." This is essential because a failure to do so will deter constitutionally protected speech.

Because its definition of "political purpose" is too broad (and, I would add, because it offers no adequate definition of coordination), Wisconsin's law did not clearly and narrowly apply to coordinated issue advocacy.  For that reason, it could not be applied to the activity being investigated by the Doe prosecutors. While Schmitz might think that such a result "defies" common sense, every court that has considered the merits of his position has rejected it. The judge presiding over the John Doe proceeding itself rejected it. The United States District Court for the Eastern District of Wisconsin rejected it. (While the result in that decision was reversed on appeal, the reversal was on procedural grounds and not the merits of the prosecutors' theory.) And, now, the Wisconsin Supreme Court has rejected it.

If that's not convincing enough, the Doe decision was very much in line with a  decision of the Seventh Circuit Court of Appeals which, in a case that did not involve allegations of coordination, also limited the scope of Wisconsin's campaign finance law to express advocacy. It may well be possible for the legislature to pass reasonable disclosure requirements for certain forms of issue advocacy that have been coordinated - in very clearly defined ways - with candidates. If Mr. Schmitz wants the name of that $ 100,000 donor disclosed, he ought to ask the legislature to rewrite the law, not try to throw people in jail.

And therein lies the real tragedy of this episode. I have no problem with lawyers talking aggressive legal positions. I frequently tell my colleagues that if we don't lose a few cases, we aren't trying hard enough to push the law in the right direction. But we don't have the power to send men with guns to people's homes. We can't lock people up. Particularly when the conduct in question involves constitutionally protected political speech, it is absolutely not proper to advance aggressive theories of the law in pursuit of criminal prosecutions.

And this brings us to the raids. Schmitz objects to the Court's characterization of the details of the raids. It doesn't matter. Let's step back and consider what happened here. At the instigation of the Democratic prosecutor of Milwaukee County, a five year long investigation into one side of the political spectrum was conducted. In it's initial iteration, it found almost nothing that it set out to find. That Democratic District Attorney doubled down and launched a new probe. In aid of this latter investigation, prosecutors blanketed Wisconsin's conservative infrastructure with astonishingly broad subpoenas and launched pre-dawn raids on the homes of certain activists. They told the targets that they could tell no one what was being done to them.

There is no dispute about any of that and, quite frankly, other details about the raids don't matter. If true, they merely aggravate the offense. Treating political activists like drug traffickers is highly unusual and sends a clear message to others. Get involved in politics and you may be treated like a criminal.

While Democrats are decrying the state Supreme Court decision, they ought to be relieved. It would have been short work for a Republican prosecutor to launch a similar probe into Democratic operatives. That would have been just as wrong, but if the Doe had been permitted to continue, aggressive investigations of one side by the other would have become the new normal in Wisconsin politics.

And that would defy common sense.

Oh, please! The GOP did not "end the weekend."

In describing last week's budget, a number of commentators have suggested that the legislature has "ended the weekend." This is because state law will no longer forbid people from working seven days in a row without the permission of the government. Wisconsin will now permit them to do so voluntarily. Critics fear that consent will be "coerced."  Such coercion would, of course, be illegal and, while it would also be unlawful to fire an employee for complaining of coercion, some workers may be reluctant to do so and retaliation might be hard to prove. Coercion might have happened under the old law (i.e., employers demanded seven days in a row even though it was illegal), but it is certainly easier to establish that a person worked seven days in a row than to prove he did not "really" consent to do so.  One commentator went so far as to say that, under the new law, a day off  will be restricted to the "privileged few."

Here's a fact little known by our friends on the left. In the actual world (you know, the one we really live in), all sorts of good things exist that the government does not make mandatory. We know that the GOP did not end the weekend. We know that days off will not be limited to the "privileged few."  We know these things because there are 37 other states that permit people to work seven days in a row. The weekend is alive and well in each and every one of them. In the vast majority of cases, employers have to offer time off in order to attract workers.

It certainly is possible that there will be some cases in which persons who do not want to work a seventh day will feel pressured to do so -  just as, under the old law, there have been cases in which persons who did want to work seven days in row were prevented from doing so. I have no way of knowing which group is larger, but I am fairly certain that the government does not either. Even if we assume that the former group is much larger than the latter, I have no way of knowing how employers react to an absolute prohibition on people working seven days in a row. While it was possible for employers to ask the government for a waiver, doing so is expensive (for both taxpayers and employers) and there is absolutely no reason to think bureaucrats will have any way of knowing when permission "should" be granted.

Certainly a mandatory day off law will impose inefficiencies and increase the cost of labor. Perhaps instead of hiring a full time person, businesses hire two part-time employees. Others may reduce staffing levels. These effects are hard to identify, but they there.

So we know that a mandatory "time-off" law will prevent some workers from doing what they want. It will impose costs on some employees (for example, in the form of reduced hours) and businesses. Those businesses most effected may be Mom and Pops with few employees and less scheduling flexibility.

None of these costs can be ignored. They must be weighed against the benefits of a law that prohibits even voluntary work for fear that some workers will be illegally coerced and unable to prove it. Do the benefits of a mandatory day off requirement outweigh the costs? I don't know, but it seems very unlikely. Freedom should be the default rule. The legislature of Wisconsin - and 37 other states - has got it right.

Cross posted at Shark and Shepherd home page.

There's more to the Obergefell decison than same sex marriage.

I appreciate that people who want civil marriage to include gay and lesbian couples are going to applaud the decision in Obergefell v. Hodges. If you get what you want or what you believe to be right, it’s easy to overlook how it happened. But I want to suggest that all of us, no matter how we feel about marriage, should be deeply disturbed by the Supreme Court’s decision.

 Here’s where you have to start. Five members of a group of nine lawyers decided that the marriage laws adopted by the people in 35 of the 50 states cannot be enforced. These five lawyers – who we did not elect and cannot replace – “found” that constitutional language adopted in 1868 means that no state can define marriage in the way it was defined by every society in human history until 2001. Not only was the traditional view (which was shared by the President and putative Democratic nominee until, figuratively, about six minutes ago) wrong, the Court says, but it was so egregiously wrong that it can no longer be permitted - no matter what a political majority may want.

 Think about this. In applying principles like “liberty” and “equality,” it is essential that courts develop disciplines and limitations that will, as much as is possible, anchor their meaning in some source of authority other than the personal preferences of the judges who happen to be deciding the case. If this isn’t done, then judging becomes indistinguishable from legislating. It is why, for example, many lawyers and judges believe that constitutional provisions should be given their original meaning. The point is not to be ruled by the "dead hand of the past" but to recognize that it was the consent of a past generation  that legitimizes the binding nature of the Constitution. Its meaning should bear some relationship to what they actually consented to.

The traditional guideposts and practices that the Supreme Court has developed for interpreting the Constitution’s guarantees of “equal liberty” and “due process” make it extremely difficult to find a constitutional obligation on the part of states to extend their marriage laws to same sex couples. Don’t take my word for it. When Justice Elena Kagan was nominated to be Solicitor General in 2009, , she explained that by “the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage. “

 This is not to say that one cannot attempt to argue for such a right using commonly accepted modes of legal analysis. While I disagreed with her conclusion, Judge Barbara Crabb, in striking down Wisconsin’s limitation of marriage to unions of one man and one woman, attempted to do just that and did it about as well as it can be done.

But in Obergefell, Justice Kennedy did not even try. His opinion might be a persuasive political argument, but it bears resemblance to law. While he suggested that a right of same sex marriage is rooted in the Constitution’s express guarantee of equal protection of the laws, he did none of the work that equal protection analysis requires. That would have required him to identify the standard for assessing distinctions drawn on the basis of sexual orientation (or, some would argue, gender) and then carefully balance the harm caused by the limitation of marriage to male-female unions and the reasons that a state might do so. You won’t find that in his opinion

Instead, Justice Kennedy emphasized the Constitution’s injunction against depriving persons of liberty without “due process of law.” The Court has, on rare occasions, read this provision to mean that there are certain things that the government can’t do even if does extend due process.  (If this strikes you as odd, it should.) Those cases have, from time to time, recognized a fundamental right to marry, even though the Constitution itself says nothing about marriage.

 This creation of such extra-textual “substantive due process” rights is quite controversial, but let’s put that aside. No previous cases involved anything other than the traditional view of marriage as a male-female union. Each one involving the right to marry made the challengers behavior a crime.  That was not the case here. There’s no getting around the fact that, for better or worse, same-sex marriage is a very dramatic change and the idea that our Constitution compels it ought to give one pause.

 If you were arguing for a change in marriage law in the legislature, you’d have an easier task. You could say that it is morally right to let gay couples marry. You could claim that it is good public policy to use marriage to facilitate same-sex relationships. But the Supreme Court has no authority to tell states that they cannot do something simply because a majority of its justices think they’re wrong and it just isn’t fair. That’s not judging. That’s legislating.

 The danger – the reason that you should care even if you support same-sex marriage – is that lawyers work by analogy. In Obergefell, Justice Kennedy says that there is some type of constitutional right to express and define one’s identity. Even if you are sympathetic to the idea of rights that are not themselves expressed in the Constitution, this approach is completely unbounded. It can be employed in support of just about any rights claim and if it was proper to use it in Obergefell, then it’s hard to see why it won’t be proper to use it again. If today’s “new understanding” is that the Constitution means that marriage laws must include same sex couples, tomorrow’s might mean that I have the right to polyamorous marriage or to pay my workers whatever they’ll agree to take or to avoid military service. The contours of the Constitution and the restrictions it might place on democratic decision-making will be limited only by the human imagination.

 In a scathing dissent, Justice Scalia wrote, that while it was not important to him what the law said about marriage, “[i]t  is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

 That should be important – and troubling - to all of us.

Cross posted at Purple Wisconsin.

The Desire to Limit Open Government is a Bipartisan Taste

Two days ago, the Joint Finance Committee inserted language into the proposed state budget that would have substantially - actually almost completely - immunized the legislature from the state's open records law. It's a very bad idea and it was greeted by spontaneous opposition from groups across the political spectrum, including my organization, the Wisconsin Institute for Law & Liberty who released a joint statement with the John K. MacIver Institute for Public Policy.


There is a reason we issued the statement in collaboration with our friends at MacIver. This time, it is Republicans who want to restrict government transparency. Four years ago, it was Democratic legislators who stonewalled MacIver's request for information. We represented MacIver in a lawsuit against Sen. Jon Erpenbach (D- Middleton). In defending against our suit, Sen. Erpenbach, at great public expense, argued, in part, for a view of the open records law that was just as bad - just as protective of the legislature's desire to keep things secret - as what the JFC attempted on July 2.


We won. Sen. Erpenbach's attempt to largely immunize the legislature from the open records law failed. The JFC's effort will fail as well. I predict that it will be pronounced dead, dead dead before noon on Monday. If it ever did get passed, my guess is that the Governor would veto it.


I understand that people in government don't much like the open records law. Compliance is time-consuming. The law was passed before the digital age - before things like e-mail exponentially increased the number of "documents" that individuals and organizations generate. In a world of simple-minded social media and hash tag philosophers, any effort to be candid in writing is likely to be turned into distorted attacks by partisans who either are incapable of understanding - or have no interest in - context.


Perhaps the law can be improved.  But, as I said in our statement, transparency is the price you pay when you get to spend taxpayer dollars.


Cross posted at Purple Wisconsin

Understanding what happened

I am working on a several pieces regarding the annual early summer flurry of Supreme Court decisions, including the decision on same sex marriage and what I think it portends for the future. Without regard to whether the extension of marriage laws to same sex couples is or is not a good idea. I think that the Court got it wrong. In fact, as a matter of law (as opposed to public policy or moral philosophy), it is one of the worst decisions I have ever read. This is not because it recognizes same sex marriage. While I think the notion that the Constitution has anything to say on this is quite wrong, one could have written a much better opinion to argue that it does. In fact, Judge Barbara Crabb, even though I disagreed with her conclusion, did precisely that in striking down the definition of marriage chosen by the people of Wisconsin.


The problem with last week's decision is the  standardless way in which it was done. This will now haunt the law in other areas.  It is just not resemble anything that we might properly call legal reasoning and it has no boundaries. Although the Court feinted in the direction of equal protection, it engaged in nothing resembling equal protection analysis. Rather it relied on a handful of cases recognizing a free floating right to either be free of laws that restrict your ability to define yourself  (or, in this case, to demand the application of laws that help you to do so). If that's permissible, then the Court can strike down almost any law depending on what the current crop of Justices believe that self-definition requires. Our democracy will exist at the sufferance of unelected judges. But more on that later.



I wanted to post now to respond to a misstatement in a Journal Sentinel editorial praising the decision. (I'm helping them out this week.) The editorial board wrote that thirty-six states allow same sex marriage and that Friday's decision simply compels the fourteen remaining states to go along. This makes it seem like the Court simply roped in a few outliers. That's not accurate. In fact, only eleven states and the District of Columbia (all of them about as blue as you can get) decided to allow same sex marriage through democratic means. Another five have adopted it by the command of a state court interpreting a state constitution. All of the remaining states in which same sex marriage is recognized ("allow" is the wrong word; same sex couples were "allowed" to exist everywhere) did it by command of the federal courts. Most of those decisions came after Justice Kennedy had clearly signaled that there were five votes for Friday's result in the Windsor decision in 2013. Perhaps all of these states would have come to extend their marriage laws to same sex couples, but we'll never know.



If last week's decision had gone the other way - if no right to same sex marriage had been found - all of those federal decisions would have been effectively overruled and the law in each of those states, including Wisconsin,  would have returned to what it was before a federal court had intervened. So last week's decision actually invalidated or affirmed the invalidation of the law in thirty-four states.

This is not just a pedantic or technical point. In the history of the Court, I can think of only few decisions  - maybe as few as one - that imposed so radical a change on so many states. Love it or hate it, the Supreme Court has done something that it rarely does. You'd think there would be a strong legal basis for it. But more on that later.


Cross posted at Purple Wisconsin.

Some observations on King v. Burwell

My friends at the Journal Sentinel editorial board like the Supreme Court's decision in King v. Burwell. Fair enough. My take is different. But they get some things about it wrong. Let me offer the following friendly correctives.

First, they say that they always regarded the challenge to the availability of subsidies in federal exchanges to be frivolous. They are entitled to that view, although how non-lawyers presume to know that is beyond me. The frequency with which lay people dismiss legal positions as frivolous is one of my pet peeves. To call a claim "frivolous" is not to say that you think its wrong or even unlikely to prevail. It is to say that no lawyer could make a reasonable argument for it. The claim in King v. Burwell was not even close to frivolous.

But don't take my word for it.  Here's who also didn't think it was frivolous. Every member of the United States Supreme Court. Obviously three Justices thought it meritorious. But writing for himself and the other five, Chief Justice Roberts said that "[p]etioners' arguments about the plain meaning of Section 36B are strong." Sorry, guys, "strong" is not the same as frivolous.

Second, they say that Chief Justice Roberts, reading the statute in context, found the answer to be "clear." No, he did not. In fact, that is precisely what he did not find. He went to great lengths - did "somersaults" and interpretive "jiggery-pokery"* in Justice Scalia's colorful terms - to find that the statute was not clear. It was ambiguous. That's important . Unless he could say that it was ambiguous, he would have no choice but to apply it as written.

Third, Chief Justice Roberts made no finding about legislative intent - at least not in the way that courts typically do. He did not scour the legislative history and learn that "Congress" had expressed an unrealized intent to have the subsidies available in federal exchanges. He couldn't. The legislative history is almost completely silent on this question.

Fourth, whatever Congress did, it was not, as the board puts it, a "clerical error." Any minimally competent lawyer who read this language would know immediately that it limited subsidies to state exchanges. In fact, if that what's you wanted to do, this is precisely how you'd go about it. This was no typo. (If, in fact, Congress did intend subsidies to be paid in the federal exchanges, it should frighten us all that none of the expensive lawyers who populate the District of Columbia caught this.)

Finally, the Board kicks dirt at the idea that courts ought to apply legal language "literally" as if statutory construction was best seen as a jazz riff. You might as well criticize your doctor for "literally" applying what she learned in medical school. Reading statutory language to do what you think will make a law work better (and, therefore, must be what Congress "really"meant) necessarily requires that you form your own judgment about what the law is supposed to do and how that should be done. But that will almost never be obvious. Even in King, the Court had to decide that Congress was not limiting subsidies to state exchanges in order to provide states with an incentive to create them. It had to decide that the possibility that the absence of subsidies would lead to adverse selection in federal exchanges such that Congress simply could not have meant what it seemed to say. Whether you think they got it right or not, these are legislative - not judicial - judgments.

The one thing about "formalistic" and "literal" applications of the law is that they prevent judges from doing whatever they want.  They respect the separation of powers. I don't think any particular law - no matter how much we may like it - is worth abandoning these foundational elements of our constitutional structure. If the ACA needed saving, it was a job for Congress and not the Supreme Court.


Cross posted at Purple Wisconsin

The real tragedy of hatred

Whenever there is one of these awful mass shootings, someone somewhere will blame some aspect of "society" for what happened. A collective "we" are said to share the blame and the actions of a mad man and whatever demons possessed him must be understood in the "context" of some social evil. There is usually a political slant. "Privileged" people don't value less privileged people. "Elites" encourage nihilism and resentment toward society.

President Obama went so far as to indict America for the Charleston shootings, falsely claiming that these shooting "don't happen" in other developed countries. This will come as a surprise to the people at Charlie Hebdo in Paris, the AUF summer camp inTyrifjorden, Norway, the Tasso da Silveira Municipal School in Rio or the Dunblane Primary School in Scotland. It would have been accurate to say that mass shootings are more frequent in the United States but adding even that level of nuance would have stepped on his preferred narrative.

Of course, we can all play this game and find the villain we want, serving whatever hash tag philosophy we prefer. We can use the Charleston shootings to denounce white racism and public insensitivity to questions of "privilege." When two black teenagers set a kid on fire in Kansas City for being a "white boy" or a couple of cops in New York are executed as "revenge" for Eric Garner,  we can blame black racism and pundits who play "the race card."

If I want to rail against environmental extremism, I've got the Unabomber and Earth Liberation Front. If I want to smear folks who don't like the federal government, I can invoke Timothy McVeigh. If I think Islam is a problem, I invoke the Fort Hood shootings. If I'm worried about anti-Muslim bias, I can point to the Sikh Temple shootings. Anti-gay animus? Matthew Shepherd. Gay hostility against Christians? The shootings at the Family Research Council.

Even if a shooting was demonstrably not motivated by whatever or whomever we want to blame, folks will do it anyway. The "Tea Party" was blamed for the shooting of Gabby Giffords even though the shooter turned out not to be a political conservative. Even fifty years after the fact, supposedly responsible writers blame "the right" for the assassination of John F. Kennedy even though Oswald was a Marxist who targeted Kennedy for his anti-communism.

Sometimes violence is a manifestation of an organized political movement and it makes sense to treat it as such. But more often - at least in this country - lunacy precedes whatever rationale the lunatic chooses, The Charleston shooter rooted his insanity in racial animus but this tells us little about the state of race relations or what, beyond denouncing his vile delusions, to do about them. The confederate battle flag, for example, should not be flown in any context that implies official approval of the confederate cause which is inextricably intertwined with slavery. But the flag did not make him do it. Take it down, by all means, but removal of the flag will not make future violence less likely.

Some of this rush to politicize the actions of crazy persons is shameful opportunism, but not all of it. Events like the Charleston shootings are inexplicably evil. The notion that they may be random and unpredictable and beyond our control is frightening. We want to believe that we can order the world to prevent them. We want to believe that we can alter humanity's attitudes or relationships in a way that will assure that no human will do things like this. In a sense, when we believe that the wrong politics are to blame for unfathomable crimes and that new attitudes or social arrangements will prevent them, we are like Job crying out to a different type of God.

But Job got no answer and I'm afraid that we won't either. The problem is not in our politics, it's in ourselves - not as products of bad ideologies but as broken individuals.


Cross posted at Purple Wisconsin

The Bucks and the billionaires

I think that there are very respectable arguments against public support for a new arena. But one that is not respectable goes like this: The guys who own the Bucks are billionaires. They can afford to pay for an arena.


Over at Right Wisconsin, I explain why. The point is not whether Marc Lasry and Wes Edens could pay for a new arena. It's whether it is in their interest to do so. Few people, even billionaires, give money away simply because they can. If Milwaukee wants someone to buy the Bucks and keep them here, it may need to pay them because it is asking them to do something that is not profit maximizing. The team would be worth more in Seattle. It is a fair criticism to say that we ought not give money to billionaires. But we've got to acknowledge that, in asking some billionaire to keep the Bucks in Milwaukee, we are asking him to give something to us.

But it turns out to be that it is very likely that Edens and Lasry should be willing to contribute something to the arena. You can thank Herb Kohl for that.


Descriptions of of the sale of the Bucks form Kohl to Edens and Lasry gives the NBA the right to buy the Bucks for $ 575 million should the arena not be built by 2017. In technical terms, the current owners do not have a "put" (the right to make the NBA buy the team), the league has a "call" (the right to make Edens and Lasry sell it.) The distinction is critical.


Edens and Lasry bought the team for $ 550 million. It may well be worth more than that today. Shortly after the Bucks were sold, the Los Angeles Clippers sold for $ 2 billion. The NBA has a very lucrative TV deal and, while the Bucks in Milwaukee are not going to be worth what a team in Los Angeles is worth, they may are almost certainly worth more than what they sold for. In a larger market (say Seattle), they would be worth a lot more.


But Edens and Lasry can't just move the team to Seattle. As Dan O'Donnell points out, if Milwaukee refuses to build an arena, the NBA will make them sell the team to the league. The league will then auction it off to the highest bidder. The profit (save $ 25 million) will be enjoyed by the NBA and the other 29 owners - not Edens and Lasry. If this is so, then Edens and Lasry need the arena deal to get done. They should be willing to pay something to make that happen - not because they "can afford it" but because it is in their interest.


But they won't necessarily be willing to pay for the entire cost of the building and perhaps not more than they have already agreed to pay. It all depends on what the team is worth - in Milwaukee. That is also critical. Unless the people negotiating this deal for the state are incompetent, the final arena deal will be structured in a way that ensures that the team remains in Milwaukee for a long time. The Milwaukee Bucks may be worth more than $ 550 - or even 575 - million, they will not be worth what the Seattle Bucks would be worth.


Let's try an example. Forbes estimates that the Bucks are worth $ 600 million in Milwaukee, but that's not necessarily all they would sell for -  even if they must remain in place. Forbes says, for example, that the Clippers are worth $ 1.6 billion. Yet that franchise sold for $ 2 billion. If you assume that the Bucks could be sold for a comparable 25% premium over Forbes evaluation, they might fetch $ 750 million. If that's so, then Edens and Lasry's $ 150 million is close to the top of the range of what  we can expect them to contribute.


I don't pretend to know what the team is worth or what the owners should be willing to pay. I make only two points. First, if they believe that the team is worth more than they paid for it, they should be willing to contribute something for the arena because they may lose that added value if it is not built. Second, because they must keep the team in Milwaukee if the arena is built, what they will be willing to contribute is going to be less than what it would be if they were free to do whatever they wanted with the team.


Cross posted at Purple Wisconsin

Political Tourette's, part I

Sometimes it seems that politicians speak to make noise.  To be sure, it is strategic bloviation. They string together of buzz words - lots of adjectives and emphatic ipse dixits - designed to evoke a mood, but nothing resembling an argument.  As one of the characters in HBO's VEEP observed, it's all "noise-shaped air."

One of the worst offenders is Rep. Sondy Pope (D-Cross Plains). Recently, she put out an incomprehensible press release accusing School Choice Wisconsin President of "misrepresentation" of the demand for the choice program. SCW had put out a press release noting that the there by had been an increase in applications for the state wide Parental Choice Program. The problem, according to Rep. Pope, is that some of the applicants for 2015-2016 were in the program in 2014-2015 and should therefore be excluded from  the number of applicants in the latter year.

That is, of course, gibberish. These students "demanded" the program in 2014-2015 and continued to "demand" it in 2015-2016 by applying to remain in it. One does not calculate the level of demand for a given good or service by excluding those who demanded it in the past. If I want to know what the level of donations to the Wisconsin Institute for Law & Liberty were in 2014, I don't exclude those who renewed donations that they made in 2013.

But I really wanted to focus on Rep. Pope's response to a memo by the Legislative Fiscal Bureau that calculated how much state aid would fund an expanded statewide voucher program if a given number of students enrolled in the program over the next ten years. The memo is of limited value. No one knows how many students will enroll in the voucher program. No one knows what other factors will be influencing the level of state aid over that period. And, of course, it makes no sense to discuss funding that has been "shifted" from public schools without considering the cost savings associated with students who those schools will no longer be educating. Whether the public schools will be better or worse off by allowing funding to follow the student is an empirical question.

But that's a subject for another day. In response to the LFB memo, Rep. Pope said that the point of choice expansion was to "reward the out-of-state interests that give millions to Republican campaigns …" This is a common meme of school choice opponents. They think that someone is out there profiting from the program.

I have yet to figure out who that is. The overwhelming number of schools accepting voucher students in Milwaukee are religious schools. Are the Archdiocese of Milwaukee or the Lutheran Missouri Synod (well, it does have Missouri in its name) "out-of state interests that give millions to Republican campaigns …." In these schools, the administrators and teachers generally make less money than those in public schools. If they are "profiteering," they seem to be making a hash of it. (While there have certainly been school operators who have misused voucher funds, public school employees have been known to do the same thing.)

In fairness, Rep. Pope - or whoever writes her press releases - is not the only one who seems to have some kind of phrase generation software that produces these word salads. I suppose that there is some perceived need to emote in response to something that you don't like.

Cross posted at Purple Wisconsin.

Why takeovers happen

My colleague CJ Szafir has an op-ed in Saturday's Milwaukee Journal Sentinel on the proposed Opportunity Schools Partnership Program. The OSPP would, among other things, allow the Milwaukee County Executive to appoint a Commissioner who could run selected failing public schools in the City of Milwaukee. It is comparable to "opportunity" or "recovery" school districts that have been established around the country with some success.

Of course, as CJ points out, the proposal has been attacked as "racist" because … well, just because. It is apparently an act of bigotry to care about poor black kids attending failing schools.  The OSPP might not work, but MPS has had twenty five years of increased funding and has failed to turn these schools around. Trying something new can't hurt.

Against this, opponents of the proposal argue that it takes away "the democratic rights" of citizens of Milwaukee. They would still vote for the Milwaukee School Board. But a limited number of schools within Milwaukee would, at least for a time, no longer be run by the School Board. City voters also vote for the County Executive - so there would still be political accountability for operation of the OSPP. The County Executive is "local" but less "local" than a school board elected by only city voters.

That is a cost. But removing those schools from the control of the Board is not a bug in the proposal; it's a feature. School board elections tend to be dominated by persons with a special financial stake in the schools, most notably the teachers' unions. This is particularly so in Milwaukee where, until recently, all teachers were required to live in the city. This has a tendency to privilege the status quo and the parochial interests of those who work in the schools rather than those who learn in them. One of the ideas behind the OSPP is to move around this roadblock to reform.

Local control of schools is traditional and valuable, although over the years it has steadily eroded, often at the behest of the "progressives" who now lament its qualification by the proposed OSPP. But if it's broke, you've got to fix it.

Cross posted at Purple Wisconsin

Has satire become impossible, part I

Here's a teachable moment.

Advocates of school choice - and my colleagues and I are in the inner circle so I know of whence I speak - don't wish to defend bad apples in the program. We don't rally outside lousy private schools and seek to "save them." We regard them as embarrassments and believe that they ought to be held accountable. There is a debate about how that should happen. Some of us favor removal of poor schools from eligibility to participate in the program. Others believe that parents - aided by accurate and meaningful information - should be the ones to decide whether or not to send their children to a particular school. But nobody thinks it's just fine to have schools that don't help kids enrolling voucher students.

So Jim Bender, the President of School Choice Wisconsin, does not call me and suggest we lock arms outside of, say, Ceria M. Travis Academy, an embattled school participating in the Milwaukee Parental Choice Program. But "advocates" of public education - in this case, the Milwaukee teachers union - have done what amounts to the same thing. They rallied around Auer Avenue School calling for it to be "saved" from takeover by the proposed Opportunity Schools Partnership Program.

Absolutely none of the students at Auer are proficient in reading. Not a single one.

The union rallied to "save" Auer because the reorganization of the school under the proposed Opportunity Schools Partnership Program would preclude a role for MTEA. The major obstacle to public education reform is this form of regulatory capture - the assertion of political power by those who run the system and benefit from the status quo. For them, it's may be about the kids, but never at the expense of the employees. You can't be effective that way.

And, yet, it is choice advocates are accused of pandering to "special interests" and "profiteers." The irony is palpable. The inability of people who ought to know better to see that is stunning.

Cross posted at Purple Wisconsin.

Fear and the prevailing wage

Over at Right Wisconsin, I have a column on the failure of some Republicans to support repeal of Wisconsin's prevailing wage law. My organization released a report this week that says school districts could have saved  between $ 163.2 and 244.8 million over the last five years had school bonding projects been conducted under market wages instead of the so-called "prevailing wage." In an environment in which reductions in state aid to schools are regarded by many as existential or even akin to "rape," one would think that not paying more for public works than we have to would be one of those things that we can all agree on. Even if we don't want to return that money to taxpayers, you'd think that we could agree that it would be better to spend the money on schools or the University of Wisconsin.

But we can't agree. I understand why Democrats oppose reform. Part of it is realpolitik. When unions are a major source of your support, it is difficult to cross them. But they also have a principled, if erroneous, objection. For the most part, Democrats actually believe that there is some kind of Keynesian magic by which money spent by the government turns into more money. In their view, paying more for public works somehow "creates" money.

Keynes believed that there were limited circumstances in which this might be true (although it's not clear that such circumstances have ever existed) and there are certainly things that the government might buy or build that add value. But the notion that government "injects" money into the economy that was not there before is almost always wrong. We should almost never spend tax dollars with the view that the act of spending itself has intrinsic value. The question should always be on the intrinsic value of the particular goods and services that the government is proposing to buy or provide. We should never want to pay more for these things than we have to.

Still, Democrats can at least claim to be acting on principle. (Of course, it's not that simple. Democrats have a powerful incentive to believe as they do because they live on a coalition of people who benefit from government spending. There is a great deal of self interest at work.)

But Republicans presumably know better. So why does a stubborn minority continue to block reform ? There are apparently no good arguments to be made for their position because no good arguments have been made. Opponents of reform have made an uncommonly silly - and flat out dishonest - argument that eliminating prevailing wage will somehow result in the hiring of workers who are in the United States unlawfully. In fact, it would continue to be illegal for employers to do so.

So I have to believe that the opposition of some Republicans is rooted in fear. That's not unusual. Politicians, as a class, are not notable for their courage (and, yes, I understand that courage does not preclude prudence). But who are they afraid of? It can't - or at least it shouldn't - be unions. They are going to oppose vulnerable Republicans no matter what.

They are afraid of politically connected contractors. There is a lesson here.

I often hear people who don't like markets ask how we can "trust" individual businessmen to get things right. The answer, of course, is that we can't - just as we can't "trust" government to do so. But that fact is not a weakness of markets, it's their strength. Markets establish a system of competition by which the talents, ideas and preferences of millions of individual actors can be aggregated. They don't produce perfect outcomes but, in the great run of cases, they tend to produce better outcomes than any individual actor - including the government - could ever manage.

But support for markets is not the same as supporting the desires of individual market participants. Businesses don't necessarily want to compete. Competitions can be lost. The prevailing wage law is a way for contractors to minimize price competition and exclude new entrants.

Republicans need to recognize that they are the party of competition and not individual competitors.

Cross posted at Purple Wisconsin.