Saturday, July 25, 2015

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 That may be so and it may not be desirable, but it is a function of Wisconsin's outdated campaign finance law and not some distortion of that law by the court.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.








Saturday, July 18, 2015

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.

Monday, July 13, 2015

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.

Saturday, July 04, 2015

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

Tuesday, June 30, 2015

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.




Monday, June 29, 2015

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

Tuesday, June 23, 2015

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