Wednesday, April 01, 2015

Mayor Barrett, Indiana followed Wisconsin's example

In yesterday's Milwaukee Journal Sentinel, Mayor Tom Barrett criticized Indiana's new religious freedom law, claiming that it sides with religious extremists and imposes a particular religion on the rest of us. He says that Indiana's law is a bad example and Wisconsin should not follow it.

Too late, Mr. Mayor. As I wrote on Right Wisconsin yesterday, Wisconsin's constitution has been interpreted to provide the same protection to religious freedom as the law just passed by Indiana.  In Wisconsin, just as in Indiana, the state may not enact laws which substantially burden a person's religious freedom unless it can show that imposing this burden is necessary to achieve a compelling state interest. (A map showing which states provide this protection can be found here. It looks like 27 states provide this form of "extremist" and "inhospitable" protection for religious dissenters. Only five clearly do not.)

It turns out that the Mayor needn't worry about Wisconsin following Indiana's example. It was Indiana that followed ours.

There are a few other things that might surprise the Mayor. First, the 1996 state supreme court decision that adopted this "extreme" protection for religious freedom was unanimous.  It was written by former Justice Janine Geske and joined by Chief Justice Shirley Abrahamson and Ann Walsh Bradley. You can't blame "the conservatives" for this one.

Second, it jumps the gun to say, as the Mayor does, that Indiana's law (or Wisconsin's constitution) means that a baker or florist can refuse to provide goods or service to a same-sex wedding. A court would have to decide whether, in the particular circumstances, the state has a compelling interest in applying its anti-discrimination law to a religious objector. The answer to that question may vary from business to business. For example, the claim of a large business providing goods or services unrelated to marriage or sexuality (think Chik-fil-a or WalMart) may be outweighed by the state's interest in making certain public accommodations available to all. The claim of a wedding photographer who does not wish to involve herself in a ceremony that she feels endangers the immortal souls of all involved may not be.

The one thing that we can say based on experience with states who provide heightened protection for religious freedom is that such claims are rarely made.

I am aware that some people have tried to argue that Indiana's law is somehow different from the similar protection provided to religious freedom by the federal government and twenty-x states. The arguments fail. As the Supreme Court recognized with respect to federal law in last term's Hobby Lobby decision, a religious objector - or group of objectors - engaged in a for profit or business or operating in the corporate form do not forfeit their religious liberty.

Nor is it surprising that the protection of religious liberty might apply to private parties seeking to enforce a government law. Indeed, that's precisely how protections of constitutional or statutory liberty normally work. Imagine, for example, that Wisconsin passed a law permitting "wrongful death" actions by private parties (say the father of the aborted child) against women who exercise their constitutional freedom to choose an abortion. Under commonly accepted doctrine, a woman facing such a suit would be able to present a constitutional defense,

Of course, even though he did not do his homework, it is open to Mayor Barrett or anyone else to argue that Wisconsin, as well as Indiana, has got it wrong - that religious dissenters - even Mom and Pop bakers and florists - should be forced to act contrary to their religious conscience and that no special regard for their religious liberty claim ought to be part of the law.

But before you conclude this is so, read this column by New York Times columnist Ross Douthat. The answer is not a simple matter of respecting "rights" or prohibiting discrimination. (There are rights and discrimination claims on both sides of the question.) The question is not answered by whether or not you agree with religious objections to homosexuality or same-sex marriage. (While I have opposed legal recognition of same-sex marriage on secular grounds, I do not have religious or moral objections to either.)  Majority religious beliefs are unlikely to be subject to legal burden, so protections of religious liberty are always going to apply to beliefs that the majority does not share. It can't be resolved  by facile comparisons to race. Race is unique in American history.

You have to ask yourself whether the idea of freedom in our country is large enough to permit dissent on the question of human sexuality. Is it really necessary to extirpate all remnants of traditional religious viewpoints? Slogans and catch phrases won't accomplish the heavy lifting required to answer those questions.

Cross posted at Purple Wisconsin.

Thursday, March 26, 2015

Yeah, actually no, the Handmaid's Tale is not like the real world

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 clich├ęs 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 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

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

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.


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

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.


Cross posted at Purple Wisconsin