X BEYOND X

Comparing the Federal Budget to a Family Budget

2012-01-27T07:54:00.001-06:00

Efforts like this to view the federal budget in terms of a family budget are nothing new.

Usually, they are proffered by Tea Partiers in an effort to support the misguided view that all problems can be solved simply by cutting spending. And while there are many reasons why analogizing a nation's budget to that of a family is completely inapposite, I'll ignore those for present purposes.

First off, is this example really so out of line of a family that has been hit by hard times?

Imagine that there really was a family who earns $21,700 per year but has $38,200 in expenses. This family also has $142,710 in outstanding debt.

Unfortunately, $142,710 in debt is not really all that much nowadays. It's a $100,000 mortgage and $42,710 in student loans. That's paltry when compared to what many families face.

$38,200 per year might have once been perfectly sustainable for a family or probably more likely just a person without any children. (On a national scale, it was during the Clinton years when there was a huge budget surplus).

But then you make some stupid financial decisions, not realizing that good times are not likely to last forever and give away all your savings. (On the national scale, just one huge costly mistake was the Bush tax cuts).

And then tragedy, like a sudden illness or injury strikes, severely hampering your ability to make ends meet by forcing you to spend money one something you hadn't planned on. (On a national scale, 9/11 might be a fair example.)

But then you compound the tragedy by, for example, spending money on that faith healer rather than on real medical care that will address the problem (On a national scale, a fair comparison is invading Iraq.)

And then just when you think things might be getting better, your boss cuts your pay and hours so that you are now making just a fraction of what you had been. (On a national scale, the global financial crisis and its resulting loss of tax revenues is a comparison.)

So what would a family do? Would the prudent family focus solely upon cutting expenses? The family can cut cable TV and not dine out as much, but there comes a point where there's nothing more to cut. What does a family do then? Does it skip meals and ignore medical problems? Does it make sense to cut out spending money on gas when it means that you can no longer get to work and therefore lose your job?

Or does the family start looking at the other side of the balance sheet (if it had not already) and start looking for other sources of income? It should seem to be common sense that any family would not focus solely upon the expense side but would also look for ways to increase income. A family member might get another job. Sure, it would require sacrifices in the short-term but when times improve, you can quit the second job and go back to how things were. Or the family member might look long-term and make the investments necessary to eventually get ahead, such as going back to school. This sort of investment might require additional debt in the short term but it is a decision that will pay off in the future.

The common sense approach that any family would take involves not only scaling backing on non-essential expenditures but also looking for ways to earn more. Yet about half of the nation's representatives want to pretend that increasing income is not an option, all the while contending that the nation needs to manage its finances with the prudence and common sense that guide families.

If it is somehow noble or ideal for a nation to exhibit the financial prudence that guides ordinary families every day, then it is absolutely asinine to pretend that all debt is inherently evil and that increasing income is somehow an abhorrent option for closing a financial deficit.

Charges Against Walker's Former Aide Raise More Questions than Answers

2012-01-07T02:47:00.004-06:00

As is so often the case when only the first shoe drops in a criminal investigation with political overtones, the criminal charges brought against Scott Walker’s former Deputy Chief of Staff Timothy D. Russell raise more questions than answers.

From those I have talked to who knew Tim Russell professionally during his time in the Walker administration, I have heard that Russell seemed to be an odd choice for the powerful positions he held. He was regarded as a little odd and not particularly well-qualified for the positions he held. He began as Walker’s personal assistant in 2002 and was promoted to Director of Operations and E-Government within about a month. Less than a year later, he received a 45% raise when he was promoted to Associate Director for Economic Development. He lasted in this position for only eight months when his personnel file indicates he was terminated. But he was rehired by the county as the Information Services Director for the Department of Social Services about five months later. He was then promoted to the Acting Director of Economic and Community Development six months later but lasted less than a year in that position when he resigned. Russell returned to county employment three years later when he was rehired as Walker’s Director of Community Relations where he remained for a bit over five months before being promoted to Walker’s Deputy Chief of Staff. A bit over a year later, he was promoted to the county’s Director of Housing with the Department of Health and Human Services where he lasted until being terminated about nine months later.

Even before it became apparent that Russell was the target of a criminal investigation, the oddly close relationship between openly-gay Russell and Walker, whose overzealous homophobia struck many as yet another Republican’s effort repress his closeted lifestyle, led individuals to joke (I assume they were joking) that there must be some sort of secret sexual relationship between Walker and Russell, and Walker put him in prestigious positions as a token of his affection or as a means of ensuring his silence.

But at present, such jokes and speculation are irrelevant. What really stands out from the criminal complaint filed against Russell is the degree to which Walker used county offices and resources for personal and political purposes. Walker developed “Operation Freedom” largely as a publicity stunt to engender goodwill with right-leaning veterans groups. And conceptually, I don’t find fault in Walker undertaking such an effort. Starting a charity intent upon benefiting a targeted constituency is largely good politics. It is the manner in which he enmeshed his personal charitable work with the work of his public office and used public resources for personal gain that should be of great concern to the taxpayers of Milwaukee County.

When questions were raised about the propriety of the county executive managing a charitable endeavor from his office, Walker made token efforts to divest himself of control. But as the criminal complaint makes clear, Walker was ultimately the one pulling the strings. He first gave control over to one veteran’s group but when questions arose about a financial shortfall, Walker moved control to a second veteran’s group over which he apparently lacked any significant influence or control. He then moved control to a third group, this time the group controlled by Russell, even though there were no apparent problems with the second group’s performance. What is notable is that Walker retained the ability to move decide who would control the funds; if Walker had really removed himself from charity and had actually allowed “the community to take ownership of [Operation Freedom]” as he said he was, he would have lacked such authority. Tellingly, it was not until he transferred control to the charity managed by his Deputy Chief of Staff that Walker “irrevocably” transferred operation and control of Operation Freedom to another entity.

The “non-profit organization” to which Walker gave irrevocable control was apparently not an actual registered non-profit and those identified its officers were others within the County Executive’s office, none of whom were fully aware of their role or ever participated in the organization. Tellingly, Walker overlooked or never bothered with due diligence to uncover these obvious red flags.

Even after control, on paper at least, was transferred over to Russell’s non-profit, the event was still managed out of the County Executive’s office, with county employees working on the event by, for example, processing the donations. One of the people most involved in doing this political work on government time was Darlene Wink, the same person who abruptly resigned her position in Walker’s office after it was revealed that her work hours on the county payroll regularly involved work promoting Walker’s bid for governor. As the state legislators who found themselves facing criminal charges as a result of the “Caucus Scandal” can tell you, the use of government employees for personal and political purposes should be a bright line an elected official and his staff know not to cross.

Perhaps the most interesting nugget in the criminal complaint, aside from the fact that the chain-smoking star of the oddest presidential campaign commercial in recent memory was hauled before the John Doe proceeding to offer evidence about Russell’s use of the charity’s funds for a meeting with Herman Cain, is the fact that Russell used money from the charity’s account for Scott Walker’s campaign. The District Attorney interpreted this as Russell stealing from the charity for his own personal purposes. However, there is another way to look at this. Was the charity simply a front for Walker’s political campaign? Was Russell really stealing from the charity or was it understood that the charity would be used to funnel money for political purposes, in which case Russell, on this point at least, is simply an unfortunate fall guy? In any event, this poses a problem for Walker because these contributions, which came in the form of renewing pro-Walker domain names, were political donations that were not reported on Walker financial disclosures. As much as Walker may try to characterize the allegation of impropriety as baseless on the grounds that the domains were not used by Walker, the fact remains that purchasing domains prevented anti-Walker groups from obtaining control of those sites, thereby providing a benefit to the campaign.

Of course, the real question is what’s next? From what little is known about the John Doe investigation, the embezzlement of Russell was clearly not its focus. The key players who were granted immunity, Rose Ann Dieck who’s a ranking member of the Republican Party of Milwaukee County; Cullen Werwie, who worked for Walker's campaign and is currently Walker's spokesman as governor; and real estate mogul and former head of the Commercial Association of Realtors-Wisconsin Andrew P. Jensen Jr. who was incarcerated for refusing to cooperate with the investigation, apparently had no relationship to the crimes charged. What did these individuals offer testimony about? Given that the primary reason for granting immunity is to compel testimony that would otherwise be thwarted by the 5^th Amendment’s right against self-incrimination one could assume they testified about incriminating activities. While it is unlikely that any of these individuals will face criminal charges, it seems safe to assume each inculpated others. Who else? There’s no other option but to wait and see.

Prof. Ed Fallone: Friends of Scott Walker v. GAB Changes the Recall Rules Mid-Stream

2012-01-06T08:42:00.001-06:00

Marquette Law School Professor Ed Fallone does a thorough and thoughtful job explaining why the decision of Waukesha County Judge Mac Davis ordering the Government Accountability Board to do the Walker campaign's job of striking suspect signatures is both inconsistent with the statutes and judicial activism at its worst.

http://law.marquette.edu/facultyblog/2012/01/05/friends-of-scott-walker-v-gab-changes-the-recall-rules-mid-stream/

Rethinking “Middle Class”

2012-01-04T04:27:00.005-06:00

“Middle class” is perhaps the most powerful phrase in American politics. Yet, as David Rohde and countless others have noted, it is an ill-defined ephemeral term. In a culture where the Lake Woebegone syndrome of everyone believing they are above average is commonplace, middle class identity is an odd exception. Surveys regularly find that even the rich, those who are solidly in the upper tier of society, identify themselves as middle class. But on the flip side, those plainly within the definition of poverty will also often describe themselves as middle class. In many ways, the middle class identity is the American identity.

Even in a raw statistical analysis of the middle 60% of Americans’ income, i.e. the center of the distribution bell curve, households with incomes between about$29,000 and $79,000 would be America’s “middle class.” Does a family earning $29,000, just a shade above the poverty level, really have the same interests, concerns, and expectations as a family earning $79,000, which falls into the upper 70% of the nation? When a politician says he is standing up for the middle class, which middle class is he representing?

What does middle class mean in a nation where ever-growing income inequality results in the erosion of middle income earners and leads to an inversion of the traditional distribution bell curve? Does the middle class still exist? Sure, it’s still possible to calculate “average” income but a traditional mean can easily mislead. Even when income is pushed to each extreme, the mean still remains in the center; thus, the “average” income might be an income that few Americans actually earn. If this happens, does middle class become a sort of fiction like the “reasonable person” that dominates in the field of negligence law but everyone knows doesn’t exist?

Defining the middle class as those falling within a range surrounding the mean or median income is essentially nothing more than a post-hoc statistical rationalization masquerading as a definition of a deeply held cultural value. Middle class is not simply middle income. Middle class embodies aspirations more than income. As such, any definition of middle class must start from these aspirations, which, as the US Department of Commerce found in a 2010 report, include “home ownership, a car [for each adult], college education for their children, health and retirement security and occasional family vacations.”

But bald aspirations of owning a home and car and sending children to college are too simplistic and the failure to address this is a fundamental weakness of the Dept. of Commerce’s report. What kind of home or car must one be able to afford? A person owning a dilapidated $35,000 inner-city residence and a 1980s Toyota is worlds apart from the person with a $500,000 suburban McMansion and new Range Rover. Is the college education that middle class Americans strive for 2 years at a technical school, 4 years at a state college, or a doctorate from an Ivy League university?

Answering these questions requires further analysis about what it really means to be middle class. As the name implies, it is the middle path; it is not the best nor the worst. It is a value that embodies comfort and security but not excess. Three bedrooms and a bath or two in a neighborhood where all parents can feel comfortable letting children play outside. Two modest new cars every 8 or 10 years. The opportunity for an education in schools where the teachers have not been demoralized, the necessary supplies have not been eliminated through draconian budget cuts, and the other students are not hell-bent upon making education impossible. The chance to obtain a degree from a state university without imprisoning one’s self to a lifetime of crippling debt and where the student leaves with real knowledge and not just a diploma. The comfort of knowing that with the dedicated willingness to work comes protection against having a lifetime of financial security derailed by illness and upon completing a career there is the opportunity to retire with the ability sustain one’s self through the remaining years. There’s nothing glamorous about being middle class but it does come with some things one might term luxuries. Subscription television service, high speed internet, and cell phones have all become emblems of the modern middle class.

This is the means by which middle class must be defined. Identifying the values and expectations that embody the middle class identity is the first step; the second step is calculating what it takes to attain that standard of living. So roughly speaking, what is middle class for a family of four in Wisconsin? To answer this question, it is necessary to calculate what it costs to live a life that might be fairly described as middle class.

Expense:	Cost per month:
House Payment (30 year loan on a $150,000 mortgage at the historically low rate of 4% and 20% down, including taxes ($4,000) and insurance ($400)).	$940
Car payment (5 year loan of $17,000 at 4.5% interest).	$320
Car Insurance:	$100
Gas:	$200
Gas, Electric, Water:	$150
Cell Phone:	$150
Internet:	$50
Cable / Satellite:	$75
Groceries:	$500
Home Repair / Maintenance (average about $5,000 / year):	$400
Vacation (average about $1250 per year):	$105
Retirement savings (the amount a person must put aside depends upon a wide number of factors and perhaps the complexity of this calculation is a factor why so few people adequately prepare):	$500
College savings (saving enough over 18 years to send 2 kids to a state university for 4 years at what would cost $25,000 each per year in today’s dollars):	$1,000
Student loans (remember, many of today’s college students are taking on $100,000.00 or more in debt to be repaid over 30 years in order to finance their own educations so they will likely be still paying off their own college when they want to be paying for their own children’s):	$100
Medical (this hypothetical assumes employer provided health insurance therefore medical expenses would represent co-pays, deductibles, and uninsured expenses for care and prescriptions):	$100
Miscellaneous (the innumerable other things that take a toll on a household budget like life insurance, dining out, health club memberships, entertainment, charitable contributions, gifts, clothing, etc. any or all of which are part of the middle class lifestyle):	$500
Monthly Total:	$5,190
Annual Total:	$62,280 (after taxes and health insurance)

Based upon this admittedly crude and incomplete hypothetical budget, living a middle class life requires a net income of over $62,000.00 per year. Note that this is net income, meaning that assuming an overall effective income tax rate of 20%, a family will require a gross income of $77,500.00, after any pre-tax employee paid health insurance costs, in order to obtain this level of net income. That over 50% higher than Wisconsin’s median income. Thus, families earning Wisconsin’s median household income are not likely to be living a middle class lifestyle.

When outrageous disparities like this develop so that a median income is wholly inconsistent with the ideal of the “average American family”, it is time to change the debate about middle classness in America. The term “middle class” is too powerful to remain formally undefined. The nation needs a stable official measure of middle classness utilizing similar principles to those outlined above. By determining what it takes to achieve what American’s believe is a “middle class” lifestyle, an annual income level is determined and this benchmark must take on the same significance in public discourse as the poverty line. We need to hear news reports where politicians decry a new analysis where “a million more Americans have fallen below the middle class benchmark” and promise immediate action to get more Americans above the middle class benchmark. Policies must be aimed at fostering this American ideal rather than a shotgun economic policy where the benefits are disproportionately enjoyed by those of the upper incomes.

America’s middle class identity is an exceptionally powerful construct but as of yet, it has been harnessed only as a matter of rhetoric. Defining and solidifying the term turns it from mere rhetoric into an objective tool that can be utilized to foster widespread positive change. Deflate the cries of the artificially outraged rich who falsely claim they are the oppressed middle class; if we know what middle class is, there is objective measure that any financial hardships are the result of their own personal mismanagement rather than government policy. Motivate the poor who have been deceived into believing that they live a middle class life to demand more from their leaders when they denied the opportunities that underlie American values.

The last hundred years or so have resulted in the United States incorporating middle classness into the core of the American identity. It became a core value that contributed to the extraordinary prosperity of this nation in the 20th century, yet today we find it eroding into empty rhetoric. Middle class is far too important of term to be left to politicians and pundits to define and deploy when expedient. If the nation is to remain true to its middle class values, the first step must be a concerted effort to authoritatively define what it means to be middle class in the United States.

Why It's a Problem that Justice Michael Gableman Didn't Pay His Attorneys.

2012-01-03T02:27:00.001-06:00

Wisconsin’s ethically-challenged, right-wing, and corporate-backed Supreme Court Justice Michael Gaeleman has found himself in a new ethical quagmire as a result of, ironically, his actions in an earlier ethical investigation. At the center of the new ethics investigation is the fact that Gableman entered into a unique fee agreement with the high-priced Republican connected law firm, Michael Best & Friedrich, that represented him in the prior ethics investigation, whereby under no circumstances would he ever have to pay for the services the law firm rendered. After receiving tens of thousands of dollars in free legal services, Gablemen never disclosed the arrangement and continued to sit on cases where the law firm appeared before the high court where he often provided a decisive vote in favor of the firm’s clients.

Although Gableman and the law firm now seek to defend the odd arrangement as merely a “contingency fee” agreement, in reality, the arrangement had few of the characteristics of a traditional contingency fee arrangement.

A contingency fee is one whereby the fee charged depends upon the result obtained. The most common is the “No fee unless you win” tagline repeated by personal injury attorneys. Rather than charging a flat or hourly fee, the attorney is entitled to a portion of any recovery, often 30%. So if a person is injured in a car accident and has $10,000.00 in car damage, $25,000.00 in medical bills, and $5,000.00 in lost wages and therefore recovered $40,000.00 from the party responsible, the injured party walks away with only $28,000.00, while the attorney pockets the other $12,000.00. Both the attorney and the injured party gamble in making a contingency fee agreement. The injured party is gambling that the attorney is going to get at least 30% more than what he would have gotten on his own to make the attorney’s fee worthwhile, and the attorney is gambling that he will not only win the case (or more likely settle) quickly enough so that he does not end up having to really put in $12,000.00 worth of work.

Although the personal injury action is the most common, in theory, a contingency fee could take a wide variety of forms. A party in a contract dispute could hire an attorney on the basis that he would receive a portion of any award or a higher hourly rate if the case was resolved by a certain deadline.

In a different category of contingency fee cases are certain cases where an attorney is entitled to fees as a matter of law. Perhaps the most common of these sorts of cases are civil rights cases where the statutes explicitly state that the court will award reasonable attorney’s fees to a prevailing plaintiff. This scheme is designed to encourage attorneys to represent persons whose civil rights have been violated, even when the dollar amount that might be attached to any injury might be small.

The agreement between Gableman and his attorneys, broadly speaking, fell into this category. In accordance with state law, if Gableman had been cleared of all wrongdoing, Gableman’s attorneys’ fees would have been paid by the state. But because Gableman was not exonerated, and instead the court deadlocked, unable to resolve the issue, his attorneys were not eligible to be paid by the state. Thus, his attorneys received nothing and Gableman got tens of thousands of dollars in legal services for free.

So why is Gableman’s arrangement any more suspicious than a contingency arrangement in some other instance where there is a fee shifting statute? The answer lies in the specific nature of Gableman’s case, Gableman’s role as a justice of the state’s highest court, and the law firm’s role regularly representing litigants before the state supreme court.

This was an ethics case where, for practical purposes, Gableman was the defendant. At stake was not merely his reputation but his career and elected office; if he lost the case, he could have been removed from the bench. His attorneys were going to be paid only if Gableman was exonerated. Thus, in accepting the odd compensation agreement, Michael Best & Friedrich were, in effect, betting that Gableman would be cleared of any ethical wrongdoing. The contingency fee agreement was essentially the law firm giving Gableman a blank check and devoting all the firm’s resources to him upon the belief that he was innocent of any wrongdoing. It is an incredibly powerful expression of loyalty to a jurist and one that a jurist is unlikely to soon forget.

It is for these reasons that it is inappropriate for Gableman to sit on cases where the law firm of Michael Best & Friedrich represents a party. Recusal is required whenever a reasonable person might question a judge’s ability to be impartial. Pay attention to that standard; it is not a standard whereby a reasonable person must believe the judge would actually be biased in favor of one side, but rather only that the circumstances would present a question of bias. The question of bias need not be answered in the affirmative before recusal is required. Recusal is required simply if it is reasonable to raise the question, and in the case of Gableman’s relationship with Michael Best & Friedrich, the question of bias is squarely raised.

In many ways, the contingency fee agreement is similar to a criminal defense attorney entering into a fee agreement with a defendant where the attorney gets paid only if the defendant is exonerated at trial. Because of the innumerable potential problems with an attorney investing such a significant personal interest in the outcome of a criminal proceeding, such contingency fee arrangements are explicitly prohibited by the rules that govern the conduct of lawyers. But Gableman’s case is even more ethically suspect because unlike the criminal defendant, there were no circumstances where Gableman was ever going to spend a dime on his legal fees. Win, lose, or draw, Gableman’s bill was zero.

In fact, the arrangement between Gableman and Michael Best & Friedrich could arguably be prohibited by the Wisconsin Supreme Court’s Rules, which govern all aspects of the legal profession. Wisconsin SCR 20:1.5(d)(2) prohibits contingency fee agreements “for representing a defendant in a criminal case or any proceeding that could result in deprivation of liberty.” In the due process context, courts have repeatedly held that interests such as the right to hold public office or the interest in government employment are liberty interests and these were all at stake in Gableman’s ethical investigation. So was the ethics investigation against Gableman a proceeding that could result in the deprivation of liberty such that the attorneys at Michael Best & Friedrich violated the Supreme Court’s ethical rules by entering into a contingency fee agreement with Gableman? Ironically, that’s a question the Wisconsin Supreme Court would ultimately be tasked with deciding.

The Big Money Behind Scott Walker

2011-12-21T17:57:00.001-06:00

Scott Walker's ability to raise unlimited funds during the recall period provides very interesting insight into where Walker's support really comes from. Walker's recent fundraising is absolutely astronomical.

Here are just a few highlights from Walker's most-recent campaign finance disclosure:

Bob J. Perry, who identifies himself as the owner of Perry Homes, donated an astonishing $250,000.00 to Walker. A quarter-million dollars from a single donor and the most remarkable point is that Mr. Perry isn't even from Wisconsin. He lives in Houston, Texas. But a quarter-million is small change for Perry. He is best known for his financing for the Swift Boat campaign against John Kerry but has also contributed huge sums to other hyper-conservative groups and candidates including $7 million to American Crossroads, its biggest single donation, and $2.5 million to Rick Perry's (no relation) presidential campaign.

Big money from out of state is a trend for Walker. Foster Freiss, an "investor" for Friess Associates, Inc., who at least grew up in Wisconsin, still cares enough about the future of Wisconsin to donate $100,000.00 to Walker from his new home in Jackson, Wyoming. Friess is also a regular donor, focusing upon evangelical Christian causes, anti-health care reform groups, and school choice groups.

Texan John L. Nau, President and CEO of Silver Eagle Distributors LP, a Texas Budweiser distributor, invested $40,000.00 in Walker. And Oklahoman and Alliance Coal executive Joseph Craft gave Walker $25,000.00.

This out-of-state trend continues throughout Walker's campaign contributions so that in the end "[n]early half of the $5.1 million raised since by the embattled Republican governor since July 1 came from outside of Wisconsin."

The biggest donors with an explicit Wisconsin connection are the Uihlein's, the owners of Uline, Inc. a packaging company in Pleasant Prairie, Wisconsin. Walker is happy to repay their $205,000.00 donation by using the company for publicity stunts. But even these big-money donors aren't able to vote in Wisconsin; they live in Illinois.

Business must also be good at Wausau Homes, because its executives, only some of whom are Wisconsin residents, have been regular GOP contributors in recent years. Collectively, they have given $182,600.00 to Walker, $150,000.00 since the recall effort began.

Aside from Thomas and Ruth Schuette of Wausau Homes, the biggest single donation from a Wisconsin resident came from M&I chairman Dennis J. Kuenster, who contributed $50,0000 to Walker. Apparently the protests and calls for boycotts of M&I had absolutely no effect upon restraining the contributions of M&I's management; rather, when unencumbered by campaign limits, M&I's chairman gave five-times as much as he ordinarily could. M&I managers gave over $55,500 to Walker according to the most recent statement.

'Tis the Season for Controversy: Understanding the Constitutional Boundaries in the Elementary School Christmas Concert

2011-12-19T18:05:00.002-06:00

'Tis the season for controversy. And I'm not talking about the resentment that comes with being shortchanged in the office gift-exchange. It's the time of year when government and religion most frequently collide and thus tension and controversy are unavoidable.

A front-line in this battle is the elementary school "Christmas Concert," "Holiday Concert," or "Winter Concert." Simply the title attached to a gathering of children singing in the month of December can spark visceral reactions on either side of the issue. There is no neutral position in this conflict and any action or inaction is met with controversy.

Nationally, school districts have rescheduled annual concerts to January in an effort to give the students and teachers more time to prepare and to remove any reason for an association with Christmas. Locally, the Greendale School District, in what was likely more of a public relations boondoggle than actual religious hostility, came across appearing either cowardly or biased when it pulled a Hindu song from its holiday concert in response to a single parent's complaint.

On one side are those who believe that any public acknowledgement of a holiday with religious origins is a crime against the constitution while others believe that government has an obligation to recognize religion (so long as it's Christianity) at every opportunity. As unfortunately is so often the case when the public's knowledge of complex issue comes from sound bites, both sides are wrong.

Because both sides tend to rest their arguments in the First Amendment, to understand this issue it is appropriate to begin with its relevant text: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

As a result of the 14th Amendment and hundreds of years of court decisions, the impact of this clause expanded to restrain all actions (not just formal laws) of all levels of government (not just Congress). It is also important to highlight to oft-ignored term "respecting." It is because of this word that actions short of formal and explicit establishment of religion (e.g. saying that all Americans must be Protestant or requiring church attendance) but merely approaching or touching upon the establishment of religion are prohibited. Therefore, a local public school's song selections could amount to an unconstitutional action "respecting an establishment of religion." Constitutional jurisprudence likely is not included in the ordinary training of a new music teacher, yet every year, music teachers across the country are forced to tread into this veritable minefield in an effort to create a music program that will offend the fewest number of people; pedagogical aims, if present at all, are pushed to the background.

So where is the line when it comes to an action "respecting an establishment of religion" when it comes to what songs may be sung in an elementary school concert?

Answering this question depends upon a controversial and somewhat counter-intuitive premise: Christmas isn't necessarily a religious holiday. According to the Supreme Court, led in large part by the compromise-orientated and legislative jurisprudence of Justice Sandra Day O'Connor, Christmas has a secular component, and thus government acknowledgment of that secular component is acceptable.

This conclusion is based upon the determination that to many Americans, Christmas has significance entirely divorced from its religious background. There's nothing in the Bible or Christian theology about reindeer, decorated evergreens, or Santa Claus (even Santa Claus' connection to Saint Nicholas is strained). These symbols of Christmas have been coopted as part of the holiday, but have origins largely unrelated to the birth of the Christian savior (a story which itself many argue was coopted from other traditions).

Thus, although the notion might be highly offensive to devout Christians, according to the Supreme Court, celebrating Christmas by giving gifts, decorating a tree, and telling your children that an omniscient old man will invade their house in the middle of a winter night, is just something you do as an American, akin to watching fireworks in early July, overeating on the fourth Thursday in November, or watching an over-hyped football game on a Sunday in February. Although religious in origin, it has become a part of American culture, just as you don't have to be Catholic to wear green and decorate your home with clovers and leprechauns for the Feast of Saint Patrick on March 17 or wear red and exchange candy and flowers with your significant other on the Feast of Saint Valentine on February 14.

It is only because that Christmas has lost so much of its religious meaning that public Christmas trees or Christmas carols in public schools do not offend that Constitution. Ironically, the countervailing movement to demand to get "Christ back in Christmas" are actually laying the groundwork for the removal of all public acknowledgments of the holiday; if the holiday is popularly regarded as wholly religious, government has no place endorsing it.

Nonetheless, alongside the secular aspect, there remains an undeniably religious component to Christmas, and this religious aspect is reflected in much of the music of the season. This is where the line exists for elementary school music teachers and administrators. Devotional music or music that tells the religious story of Christmas is inappropriate for elementary schools. Therefore, songs like "Away in a Manger" or "Silent Night," cannot be included in a public elementary school's curriculum for this reason. However, songs that simply discuss the aspects of Christmas that have been recognized as secular, such as "Rudolph the Red-Nosed Reindeer" or "We Wish You a Merry Christmas" are appropriate. Other songs regularly characterized as "Christmas Carols," such as "Jingle Bells," "Winter Wonderland," or "Frosty the Snowman" are entirely secular and therefore clearly acceptable for even the school districts that want to stay far away from the boundaries established by the Constitution. A simple rule of thumb is, if you'd hear the song in a church service, it's probably not appropriate for an elementary school. The issue gets more complicated for older students, particularly high school students, where the courts have recognized that it might be appropriate to include overtly religious music, such as Handel's Hallelujah Chorus, because of the educational value of incorporating such monumental works into the curriculum. But simply because a song is appropriate for a high school does not mean it is appropriate for elementary school.

It is because of this distinction between overtly religious music and secular music with religious underpinnings that Greendale School District was right to exclude a Hindu song, "Raghupati Raghav Raja Ram," while still including other songs such as Feliz Navidad and Hava Nagila in its multicultural-themed winter concert. While the district has done an exceptionally poor job explaining its rationale for the decision to remove the song after a lone parent "felt offended about a religious saying in the song," and thus one can understand reactions like Greendale parent Jason Dobbs who characterized the move as "just thinly-veiled racism from the parents." However, Mr. Dobbs, who stated that he believed that "all songs that have religious overtones should be pulled," and others who share this view, fail to understand the nuances of this thorny issue. While the district administrators conceivably could have been motivated by bigotry towards the Hindu faith (but remember, the district did initially include the song, suggesting a lack of Hindu animosity, and thus, at worst, the district could be accused of cowardice for caving to a possibly bigoted parent), I suspect that the real reason the song was pulled was because upon conducting a closer review of a translation of the Hindi lyrics, the district recognized that the song was devotional and not merely cultural. The song is sung in the exercise of the Hindu faith, akin to a traditional Christian hymn, and thus inappropriate for a public elementary school. It is for this reason, not because it was in Hindi, referred to the Hindu faith, or used the word most feared by America's right-wing evangelicals, "Allah," that the song was properly pulled. "Feliz Navidad" acknowledges only the secular aspects of the Christmas holiday, akin to "We Wish You a Merry Christmas." Hava Nagila is wholly irreligious, although many Americans mistakenly believe otherwise as a consequence of the familiar misunderstanding that Jewish culture and the Hebrew language are not synonymous with the Jewish faith.

But these distinctions are not always easy to grasp and thus there is perpetual tension between those who believe any reference to Christmas (or Hanukah) is inappropriate for public schools and those who believe that Christian hymns should be included in the curriculum. It's ironic that school districts face these controversies largely as a consequence of an ill-informed public; one should regard it as the school district's responsibility to do a better job in ensuring an educated community.

Even when a school district tries to avoid controversy by excluding any reference to Christmas from its December concert, it is met with controversy on the novel theory that its ban amounts to an "establishment" of the religion of secularism. So far, this oxymoronic theory has not gained traction in courts, but that does not stop ideologues from espousing it when convenient.

A government has absolutely no obligation to acknowledge religion, and thus excluding all hints of religion from a public school music program is entirely consistent with the Constitution. The inclusion of the secular aspects of the Christmas holiday represents simply the line that government may not cross; it is entirely free to stay well away from that line by excluding all references to religion. And it is in this direction, away from the constitutional line, that school districts are well-advised to proceed.

The time has come for an end to the December music concert. While public performance of music must remain an essential part of the public elementary school curriculum for the important skills, knowledge, and experiences imparted through these activities, arbitrarily requiring the concert to be in December and based upon a holiday theme unnecessarily curtails the educational value of these events. Music teachers must be given the flexibility to choose songs best suited to the pedagogical needs of his or her students. Music class is an opportunity for students to learn about the nation's and the world's rich cultural history expressed through music, as well as the technical aspects of reading, writing, and performing this art form. Forcing teachers to try to accomplish these goals through the limited holiday music catalog effectively ties a hand behind their backs. For the parents who believe that it's not Christmas without hearing their child lisp his way through "All I Want for Christmas Is My Two Front Teeth," there are plenty of other opportunities for that outside of school. Treating the music curriculum as merely cutesy entertainment for parents diminishes this important and under-appreciated subject.

Scott Walker's Dereliction of Duty Stands to Put Guns in the Hands of Criminals

2011-11-29T19:17:00.000-06:00

Scott Walker is shirking a constitutional responsibility of his office by effectively eliminating executive clemency in Wisconsin. Granted, no one is entitled to a pardon and therefore one might wonder, how is refusing to provide even the basic framework for the consideration of pardons any different from a chief executive simply deciding not to issue any pardons? Isn't Governor Walker simply cutting out an unnecessary bureaucracy if he has already decided that he's going to bolster his "tough on crime" cred-card by categorically refusing to grant any pardon?

That argument certainly can be made, but this myopic view fails to consider the important role that executive clemency plays in the justice system and how it ironically serves to protect citizens. Like many of Walker's policies, it appears that he and his administration fail to understand the consequences of its actions. In this instance, a potential unintended consequence of Walker's effective elimination of the pardon in Wisconsin is to put guns in the hands of dangerous criminals.

Under federal and state law, felons are prohibited from possessing firearms. Federal law also prohibits persons convicted of misdemeanor crimes of domestic violence from possessing firearms. In light of the Supreme Court holding that the Second Amendment is a right of individuals and not associated with service in the military, these laws and particularly their lifetime prohibitions against possessing firearms have been under increasing attack. Courts have upheld the lifetime prohibitions relying in part upon the fact that in instances where the criminality was entirely anomalous or the offender has truly reformed himself, the individual is able to regain his gun rights by way of a pardon. The Seventh Circuit suggested that without the opportunity to obtain a pardon, courts will have an exceptionally difficult time concluding that firearm prohibitions comport with the Second Amendment.

Walker's statement that "these decisions are best left up to the courts" demonstrates a troubling ignorance of the power of courts. Expungement, one of the only other ways to regain the right to possess a firearm, is an option in Wisconsin only for individuals convicted of certain lesser-crimes committed before they are 25 years old, and only then if certain conditions are met. But the availability of expungement must be ordered at the time of sentencing; there is no opportunity for a court to go back later and order a criminal conviction expunged. And more importantly, until recently, expungement was limited to those convicted of misdemeanors before the age of 21. Therefore, as a practical matter, expungement is non-existent for nearly all offenders. There is no means short of proving one's innocence and thus having a conviction vacated (a prospect that is not only exceptionally difficult and rare, but even then available to only a small class of offenders) where a court can provide relief equivalent to that afforded by a pardon. But more importantly, even for someone who may wish to take the strictest possible view on the question of separation of powers, Walker ignores the fact that the Wisconsin Constitution explicitly vests the Governor, not the courts, with the power to grant pardons. Unless Walker is advocating for a truly radical extra-constitutional form of judicial activism, there is simply no decision that can be "left up to the courts."

The pardoning power provides a means to distinguish the truly rehabilitated from those who pose a continuing danger to society. If a person has not received a pardon, the public, law enforcement, prosecutors, and the courts can trust that the person has not been rehabilitated such that he should regain his right to possess firearms. But if a pardon is categorically unavailable, at best, individual law enforcement officers, prosecutors, and judges are forced to make ad hoc assessments, and at worst, the bans upon criminals possessing firearms will be entirely struck down as facially invalid. While I doubt that Walker recognizes the potential consequences of his actions, if this is an intentional attempt to lay the groundwork for courts to strike down the longstanding bans upon criminals possessing firearms, then he should propose that legislation and let the public be heard, rather than using this backdoor. In any event, Walker's dereliction of duty is not only an affront to the Wisconsin Constitution but to basic notions of justice.

Robin Voss' Defrauder Defense Act of 2011

2011-11-02T21:21:00.003-05:00

The Wisconsin Legislature has been furiously rushing through a bill that will effectively decimate nearly every consumer protection law in the state, as well as a wide variety of other causes of action. The Assembly went so far as to take the unusual step of bypassing the committee process and scheduling this bill directly for a floor vote. Now we have a better understanding of why they were hurrying; they didn't want to give the public time to find out more about why they want this bill.

It was bad enough when this appeared to be simply a big handout to a major Republican contributor. Car dealer John Lynch, owner of Lynch Chevrolet in Burlington, wants to be able to continue to scam his customers with impunity and did not appreciate being held responsible when he charged a customer $5,000 for work the customer didn't authorize and then held the car hostage when the customer didn't want to pay. The result was a lawsuit, and Lynch chose to dip into his deep pockets in an attempt to continue to bully the customer in submission rather than accept an offer to settle the case for a paltry sum of $2,500. Instead of agreeing to keep only half of the amount he swindled from his customer, the case ended up before the Court of Appeals where the customer won meaning that the costs for Lynch's malfeasance had skyrocketed to include the costs that the customer's attorney incurred trying to overcome Lych's full court press. But not content to give up the fight, Lynch continued to use his money and influence in the other two branches of government and called upon the Republicans in the legislature, who have been the beneficiaries of tens of thousands of dollars from Lynch, to change the law.

Lynch found a kindred spirit in his own state representative, Robin Voss. Not only has Voss demonstrated himself willing to consistently blindly pander to the interests of certain businesses over those of the average citizen, but it turns out, Voss is a similar suspected swindler with a personal stake in this legislation. Voss is a slumlord who was apparently so incensed that his former tenants held him responsible for renting a dilapidated rental unit that he wielded his power in the legislature to make sure that no slumlord will ever be held to account again. Voss was sued by former tenants as a result of the uninhabitable condition of the property he rented. A settlement resulted and Voss is on the hook for up to $20,000 of his former tenants' attorneys' fees. If the bill he is now championing had been law, those fees would have been no more than about $6,500 meaning Voss would have personally benefited to the tune of $13,500. But more importantly, if Voss' bill had been law at the time he defrauded that group of college kids by renting them an uninhabitable home and then refused to return their security deposit, he likely would have never been sued in the first place because, without the prospect of obtaining attorneys' fees, the college kids would not have been able to find an attorney to stand up for them.

That's what this bill is really about. It's not about limiting attorneys' fees so much as it is about giving fraudsters like Voss and Lynch the ability to continue their despicable conduct without the threat of being held accountable. Proponents talk about giving businesses "certainty." And that is accurate; businesses can be certain they can do most anything to harm their customers and not have to worry about being held responsible in court. And there is certainty for consumers, too. We can all be certain we are getting screwed.

Although the Republicans clearly take a lot of pride in the belief that they are screwing over consumers (which certainly is true), they don't seem to recognize they are also screwing over businesses they are ostensibly seeking to protect. Honest businesses, the only ones that legislators should be worried about protecting, depend upon these fee shifting laws to protect against fraud and a wide variety of other injustices just like individual consumers. This bill does not actually protect businesses but rather this bill protects only fraudulent and disreputable businesses.

Wisconsin Republicans Recognize Obtaining Attorneys’ Fees Vital to Ensure Justice (at least when it comes to rich litigants)

2011-10-31T14:43:00.028-05:00

Wisconsin's Republican legislators recognize that often times the price of legal action will deter an aggrieved party from pursuing justice. Even if a person can afford to hire a lawyer and pay all the attendant costs of litigation, the personal economic benefit of taking some sort of legal action might not seem sufficient to justify the expense. But certain types of cases involve compelling public interests even though they might not involve a lot of money for the individual plaintiff. Therefore, in an effort to avoid having these wrongs go unprosecuted, the legislature made it so that plaintiffs that win certain types of other cases will have the losing party pay its attorneys' fees and other costs.

This includes certain actions such as challenges to administrative decision-making where the state is the defendant. The rationale for cost shifting in these sorts of cases is to rebalance the scales and prevent a plaintiff from being dissuaded by the state's superior resources.

But the state's resources are limited and paying an opponent's attorneys' fees and costs can be quite expensive, particularly given the frequency that the state is a party to litigation. Therefore, in an effort to balance the competing interests of encouraging aggrieved parties to pursue justice and to protect scarce public dollars, a compromise was struck resulting in the state agreeing to pay the costs and attorneys' fees for the all but the richest individuals and businesses who are presumed to be able to bear the costs on their own.

While repeatedly expressing alarm over the state's dire fiscal state, the state's Republicans have recently shown that ensuring access to justice is a priority worth expending scarce resources, so much so that it is given priority over other such vital matters such as fully funding health care for the state's most vulnerable citizens or providing adequate funding for the education of the state's children.

But wait. Aren't the Republicans the ones who have imposed draconian and arbitrary caps upon the amount of attorneys' fees that a plaintiff might recover in cases such as consumer fraud, making it so that these vital consumer protection laws will go unenforced and disreputable businesses may scam consumers with impunity? That sure doesn't sound like it is making justice more accessible for Wisconsinites.

Yes, this is all true. Republicans have decimated consumer protection laws in response to a major campaign donor being upset that he was held accountable for defrauding a customer. Yet at the exact same time that Republicans have effectively eliminated the ability for average consumers to have their costs paid by a disreputable business, Republicans have introduced a little-noticed provision that would repeal the income cap to be eligible to receive attorneys' fees and costs for certain actions against the state. This means that taxpayers could now be paying the legal fees of even the richest litigants. Even when the private business' resources, with its $500 / hour retained lawyers and bottomless litigation budget, dwarf those of the state, with its $25 / hour attorneys and cut-to-the-bone operating budget, the state may end up subsidizing the rich.

This proposal results in the state giving money it claims it does not have to wealthy private individuals and businesses that do not need it. In other words, it bears all the hallmarks of a banner Republican proposal.

Not only does this proposal result in a state that Republicans regularly claim is broke paying the legal bills of the richest among us, this proposal provides deep-pocketed private individuals and businesses with a strong incentive to run up the tab. The mere threat of the state having to pay hundreds of thousands, if not millions, of dollars in attorneys' fees gives the state an incentive to settle even the strongest cases rather than fight. And the more the private party runs up the tab, the greater the incentive for the state to settle a case. Even if the state perceives its chance of winning is 95%, if the payoff for winning is not great, the mere 5% possibility of having to pay to the plaintiff an inflated $500,000 bill that just keeps growing, it might make it worthwhile to compromise. The result is that a party with deep enough pockets is able to effectively extort the state, and the interests of all Wisconsinites, which the state's lawyers are supposed to represent in litigation, are compromised.

If Republicans now believe that income eligibility caps are no longer good public policy, I would not object to a consistent implementation of new philosophy. Eliminate income eligibility caps for BadgerCare, Section 8, Wisconsin Shares, WIC, and the Energy Assistance programs. But I think it is safe to say that no Wisconsin Republican will be introducing a proposal like this.

To roll back an income eligibility cap that effectively results in a government handout to the richest businesses and individuals under circumstances that are likely to undermine the interests of the state's citizens as a whole is inexcusable. To then do this at precisely the same time that Republicans are using the "we're broke" refrain as an excuse to cut programs for the state's most vulnerable is indefensible. And finally, to do this while cutting the ability for average citizens to obtain attorneys' fees for the injustices they suffer as a result of the fraudulent acts of corrupt businesses is downright unconscionable.

The Individual Mandate: As Old as the Nation Itself

2011-10-19T19:45:00.001-05:00

The most maligned portion of the Patient Protection and Affordable Care Act (PPACA) is the requirement that all individuals obtain health insurance. Proponents contend that it is essential to ensure the effectiveness of the overall scheme; now that insurance companies can no longer deny coverage based upon illness, absent the individual mandate people will simply wait until they become sick to purchase insurance, thus vitiating the basic principle that allows insurance to be effective. Opponents contend that the government requiring a private individual to purchase anything is historically unprecedented and downright un-American.

Although oft-repeated and infrequently challenged, this assertion is patently false. The truth is that such government mandates are as old as the Republic and in recent times, those on the furthest extremes of the political right have been their most ardent supporters.

Just two years after the constitution became the law of the land, the nation's Second Congress, a body that included influential founders such as Aaron Burr and Rufus King, along with the aptly named James Gunn of Georgia, passed the nation's first individual mandate in 1792. Like the individual mandate at issue in the health care overhaul legislation, Congress passed this early mandate in realization of the fact that the health and safety of all Americans requires individuals relinquishing a modicum of personal freedom for the benefit of themselves and their neighbors. But obviously, the Second Congress did not require Americans to buy health insurance (a product that wouldn't exist as we know it for more than 150 years) but rather, the federal government required Americans to purchase firearms, ammunition, and the essential accessories required for military service.

Congress required that essentially every white male between 18 and 45 years old purchase

a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder . . . .

Even today, long past the era of universal and mandatory militia service, government mandates for gun ownership remain. In some of the reddest of red states, areas where the condemning cries of an "oppressive government" are heard loudest, governments have passed laws mandating firearm ownership.

Amidst the outcry over the individual mandate in the heath care overhaul, legislators in South Dakota proposed a law requiring every adult in the state to own a firearm. But unlike the earlier federal law and laws in other parts of the country, South Dakota's legislature did not actually wish to mandate an armed citizenry. Instead, the legislators claimed their doomed-to-fail proposal was a stunt aimed at highlighting what they perceived as the over-reaching of the individual mandate in the federal health care law. The irony, if not hypocrisy, of their action was apparently lost on the South Dakotan legislators. In a misinformed attempt to highlight what they perceived as government overreaching, they actually highlighted how the core of the main argument against the health care law was entirely inconsistent with the nation's history.

In light of this history, even those ideologues who insist that the Constitution's meaning was frozen at the time of the founding would be hard-pressed to contend that the Constitution prohibits the federal government from requiring an individual to purchase anything. That is, of course, unless their constitutional originalism is merely a front for political ideology, which they will casually brush aside when it does not get them to their desired ends.

Justice David Prosser: Not a Criminal but More Troubled Than Thought

2011-08-26T18:27:00.004-05:00

When a victim has finally had enough of a bully's harassment and decides to stand up, sparks tend to fly. According to the consensus of the statements made by Wisconsin's Supreme Court Justices, Justice David Prosser is a bully whose aggressive and irrational behavior is becoming more troubling. And Justice Ann Walsh Bradley is a frequent victim of his bullying who finally had enough of his misbehavior. The result was a confrontation that led to police investigating Prosser for possible criminal charges and marked a new low for the already troubled court.

As is now becoming clearer, Prosser has a long disturbing history of threatening and harassing his colleagues on the state's highest court. His conduct has gotten so out of control that his colleagues have described feeling intimidated and being forced to "walk on eggshells" because they never know when he's going to explode with anger. His colleagues have described him as becoming increasingly "unstable" and "paranoid."

The court's culture of secrecy, where court staff and the justices themselves adhere to an informal pact to never discuss what happens in chambers has led to a situation where the public knows very little about these elected officials.* But as is made clear from the police reports released today, big business and conservative extremists just bought an emotionally unstable man a seat on the bench where he'll decide the most important issues affecting the state for the next 10 years.

Prosser's disturbing conduct came to the fore when the legislature's Republicans publicly demanded that the court issue a decision related to the highly-charged collective bargaining issue on a timetable set by the legislature's leadership. Prosser, as a former Republican legislator, naturally wanted to please his fellow partisans. Prosser felt so strongly that he and his fellow Republican ideologues confronted the justices in the minority to demand that the court issue an order prematurely so as to appease the public demands of Governor Walker's extremist patsies.

When amidst trying to bully his colleagues Prosser personally insulted the court's Chief Justice, something Prosser has done frequently in the past, this was the final straw for Bradley. She literally rose to the defense of the Chief, standing up from where she was seated behind her desk, and ordered Prosser out of her office. Naturally, in the six different versions of events offered, the fact differ somewhat. But there does seem to be a general consensus:

After Prosser said he had no faith in the Chief Justice's leadership as a result of her refusal to issue a decision on the timeline demanded by Republican legislators, Bradley became upset and came from behind her desk toward Prosser at a pace that was faster than an ordinary stroll. As she approached, she looked him directly in the eye and raised her right arm, pointing towards her office door, instructing him to leave her office. In pointing to the door behind Prosser, her hand was outstretched and at a height of roughly Prosser's face. She likely had her fingers wrapped around her classes and thus her hand appeared to be a fist. At the moment Bradley came within about a foot or two of Prosser, Prosser extended his arms and his thumbs made contact with the front of Bradley's throat and his fingers wrapped around her neck. He did not squeeze Bradley's neck Immediately, Justice Pat Roggensack intervened between her two fellow justices, ending the confrontation. Prosser left with Gableman. Bradley remained extremely distraught over the incident in the days following.

Having read the reports, I can agree with special prosecutor, Sauk County District Attorney Patricia Barrett, that criminal charges were not warranted against Prosser. But that is certainly not to say that Prosser was "cleared" as he promised he would be. Prosser most definitely behaved inappropriately in this instance and in the many other instances detailed by numerous justices in their statements to police.

But what is also very troubling are the lengths that the court's most junior justices, hardened conservative cronies who have each suffered their own well-publicized ethical lapses, will go to shield the disturbing behavior of their fellow conservative.

Justice Annette Ziegler claims she did not see the relevant events, despite the fact she was standing just to the right of Prosser in the relatively small office. But despite stating that she did not see anything, she nonetheless told investigators, "I know he didn't choke her." One would think a seasoned jurist would recognize the inappropriateness of such a statement. This sort of absurd comment would have been quickly met with, "Objection! Foundation. The witness said she didn't see anything. Ask the response be stricken and the jury instructed to disregard," if uttered in court.

Justice Michael Gableman went out of his way to claim that Prosser never raised his voice and instead spoke in a calm and matter-of-fact tone. The only problem is that Prosser himself admitted raising his voice. In fact, investigators noted Prosser raised his voice even during their interview of him, something that hopefully the public will be able to hear for themselves seeing as the interview with Prosser was audio-recorded and should be considered a public record now that the investigation is closed.

UPDATED, the audio from the over-two-hour interview has been released and is available here. Listening to it is quite amazing. Justice Prosser spends the first 20 minutes babbling about wholly unrelated nonsense apparently in a desperate attempt to defend his outrageous actions or distract (or bore) the investigators. At one point it gets so bad that his own attorney has to jump in and say "get to the point;" it doesn't help. It's a full 40 minutes of Prosser trying to rationalize why he got enraged by referring to long-ago disputes on case management issues before he even starts to approach anything even remotely relevant. But amidst all the nonsense, Prosser does make an outrageous admission--he got the facts he relied upon to make his decision from newspapers rather than the record produced in court like any jurist must do. Just imagine if a juror decided a defendant's guilt by relying upon what was presented in the media rather than what was presented in court, but apparently that would be fine to Prosser. And although it is patently clear that Prosser is struggling to be on his best behavior, there are hints of the acerbic personality that Prosser's colleagues referenced. For example, he insults the Chief Justice and Justice Bradley for seemingly being surprised to learn that Prosser was writing a concurring opinion. Prosser states, referring the the Chief Justice and Bradley, "I think anyone with any brains would have known I was writing [a concurring opinion]." Prosser raises his voice and becomes agitated at the media's reporting of this incident at 1:15; note, the same media he condemns for being inaccurate in their reporting of this incident is the same media Prosser relied upon to decide this exceptionally important case. Prosser also contradicts himself, at times denying being angry while at at others admitting being angry at the time of the incident.

Moreover, while nearly all justices made some sort of written personal record of their recollection of the incident soon afterward, Gableman and Ziegler alone refused to provide all of their notes to police. If a suspect in a case that came before the court had refused to turn over certain documents to investigators, do you think these judges would suspect that whatever was contained in these documents was not helpful to that person's position?

Even for those who might agree with or appreciate Prosser's hyper-partisan political loyalty, it should nonetheless be plainly apparent that Prosser is an extremely troubled man whose ability to competently serve the people of Wisconsin is greatly suspect. If he refuses to seek help for his anger issues, then after Scott Walker, Prosser must be next on the recall target list.

* Judicial secrecy is not necessarily a bad thing; it fosters sound and independent decision-making. But when justices forswear that independence and choose to utilize partisan political interests rather than blind justice to decide cases, the need for secrecy is diminished and the public has an interest in knowing the role of improper influences in a judge's decision-making.

Unethical Behavior is Becoming Synonymous with Judicial Conservativism; Justice David Prosser's Most Recent Ethical Lapse

2011-08-14T11:18:00.002-05:00

Even the conservative-leaning US Supreme Court can agree, when a corporation buys a judge his seat on the bench, the judge must recuse himself in cases involving that contributor. But what if the flow of cash is reversed and the judge paid the litigant in order to obtain his seat on the bench? Must the judge recuse himself from a case when that person appears before him?

That question is now posed before the Wisconsin Supreme Court, a body that has a growing list of ethical challenges. Justice David Prosser retained the Troupis Law Office to represent him in legal actions related to the statewide recount resulting from Prosser's re-election. For his work, Troupis received over $75,000 from Prosser.

Troupis will see his client again in about a month when Troupis argues a case before the Wisconsin Supreme Court on behalf of conservative political. And while legal ethicists from around the country agree that a judge should recuse himself from hearing a case argued by his personal attorney, Prosser has refused to step aside in the case involving Troupis.

The Wisconsin Supreme Court, as the body ultimately charged with regulating the state's attorneys' compliance with professional ethics is quickly becoming dominated by Justices without due regard for their own ethical obligations. Justices Ziegler and Gableman each were formally condemned for their ethical lapses and Justice Prosser is already the subject of a pending criminal investigation as a result allegations he assaulted a fellow Justice. To that list we can add Justice Prosser's failure to recuse himself in a case involving an obvious conflict of interest. On a national scale, there are the well publicized instances of Justice Antonin Scalia refusing to recuse himself in cases involving close friends and Justice Clarence Thomas' inappropriate associations with hyper-partisan extreme right-wing political groups. It seems to be that disregarding judicial ethics has become a requisite on the judicial conservative cred card.

But why must Prosser recuse himself just because he used the professional services of an individual? Surely Prosser need not recuse himself in a case involving We Energies because it provides his electricity or Roundy's because he shops at Copps. What's the difference?

Somewhat ironically, the difference is found in the ethical rules governing the conduct of lawyers that the Supreme Court oversees. The attorney-client relationship is uniquely intimate. An attorney is entrusted not only to advise a person about the most important matters of life but to go so far as to speak for that person in that matter. The profundity of the relationship has led to the development of strict ethical rules, including severe limitations upon business transactions between an attorney and a client and even a prohibition upon sexual relationships.

An attorney-client relationship can be analogized to something similar to a familial relationship. Like in a familial relationship, the client is predisposed to trust the integrity of the attorney and the soundness of his legal reasoning. For this reason, it is well-established that a judge must not appear on cases where a family member represents a party. The same rationale must apply to the judge's own attorney if there is to be faith in the fairness of the judicial process.

Simply knowing an attorney is not a reason for recusal. Judges and Justices will often know the attorneys who appear before them. Those on the bench rose from the ranks of those on the other side of the bar and almost always rose to the bench as a direct result of their personal connections to their peers. But entering into an attorney-client relationship with an attorney appearing before a judge, is profoundly different and any judge must possess the ethical soundness to recuse himself.

The Astronomical Financial Gap in the Alberta Darling v. Sandy Pasch Senate Race

2011-08-02T21:40:00.002-05:00

It's not a secret that Republicans, both locally and nationally, were "all in" on the Wisconsin recalls but now it's coming to light just how much money they had to throw into that pot.

Extreme conservative organizations invested mightily to obtain the unstoppable Republican majority that bullied through the outrageous policies that led to this recalls. Thus, it should be hardly surprising that these right-wingers will spend astronomical sums to continue the reign of their patsies. While the spending of the shadowy national organizations can be exceptionally difficult to track, a review of the campaign finance documents that are readily available reveals just how high the mountain is that those opposed to Republican extremism must surmount to put in place a speed bump for the out of control Republicans.

River Hills Republican Alberta Darling is crushing her Democratic challenger, Sandy Pasch, in the fundraising race by a 2 to 1 margin. This is despite the fact that Pasch has garnered significantly more individual contributions and that polls indicate that the race is a dead heat.

Not unexpectedly, Darling's financial edge is a result of the fact that big money donors tend to support her as the Republican in the race. While it has long been the case that Republicans are the party of big money, the sums being thrown at Darling paint a stark picture of the state of democracy in Wisconsin. Darling's average contribution since the beginning of this year was $110.00; Pasch's average was less than half that at a mere $40.00.

While Pasch did not receive a single contribution of more than $2,800.00 (that coming from the Milwaukee County Democratic Party; the biggest individual contribution she received was $1,000.00), Darling's single largest individual contribution was $20,000.00 from Ted Kellner, CEO of Fiduciary Management. Just days earlier, Kellner gave Darling $2,500.00 for a total contribution of $22,500.00. But while Kellner gets top honors in the single-biggest-contribution category, he only garners silver in the overall biggest donor category.

That "honor" goes to Daniel McKeithan, President of Tamarack Petroleum, who, in roughly 2 months and in 3 separate donations, gave Darling a whopping $30,000.00.

Deserving honorable mention on the Darling big money list are Jere Fabick, whose employer and occupation are listed as "unknown" on Darling's reports but it is well-known he is the head of Fabco, gave $15,000.00. Billie and Michael Kubly gave a combined $22,000.00.

Remarkably, Darling has nearly 60 contributions from individuals in excess of $2,000.00; Pasch doesn't have a single one.

Some are billing the Pasch / Darling race as a referendum on Scott Walker and Republican extremism. The stakes are likely higher. It is the latest test of whether elections can really be bought by big money donors.

Ron Johnson's Delusions of Grandeur: The Senate and the Judicial Nomination Process

2011-08-01T12:57:00.001-05:00

Never underestimate the petty petulance of a United States Senator. In the tone of a high school kid holding a grudge after not being invited to the cool kids' party, Wisconsin's junior Senator, Ron Johnson, attempts to offer an explanation for why he is blocking the President's nominations to fill two seats on the federal bench. Rather than offering anything close to a reasoned explanation, it is clear that Johnson's extreme actions are based upon a gross over-estimation of his own importance and total misunderstanding of the constitutional role of the Senate.

The President has nominated former Wisconsin Supreme Court Justice Louis Butler and distinguished UW Law School Professor Victoria Nourse to serve on the District Court for the Western District of Wisconsin and the Seventh Circuit Court of Appeals, respectively. Johnson believes that the Constitution has vested him with special authority to dictate to the President who should fill these seats because Butler is nominated for a judicial seat within the boundaries of Wisconsin and, while the Seventh Circuit is based in Chicago, Nourse is nominated to succeed to irreplaceable Terry Evans in a seat that has traditionally been filled by a nominee from Wisconsin.

While there has been an informal courtesy of consulting the Senators from Wisconsin for nominations such as these (going so far as a convening a special merit-selection panel who forwards a list of names of the most-qualified applicants to the state's Senators who then recommend a nominees to the President for the President to choose one), this absolutely is not constitutionally required. A Senator from Wisconsin ultimately is just 1 of 100 and, in a constitutional sense, not entitled to any greater role than any other when it comes to approving or disapproving of the President's nominees than any of his colleagues.

To the extent that there is merit to the argument that these nominees should be blocked because Wisconsin's Senators were not consulted, Johnson skips over the fact that Wisconsin's Senators were consulted. Johnson just dislikes the fact that he wasn't a Senator at time these nominations were initially made and thus naturally was not consulted. Instead, Johnson seems to hold the outlandish view that his election warrants starting the entire nomination process anew; an absolutely absurd notion that would further imperil the already broken judicial nomination process.

Johnson also seems to not understand that even starting over from scratch likely would not change anything. Johnson has absolutely no authority or even reason to argue that his choice should be selected for a judicial vacancy. At most, a Senator can offer his or her "advice." The President remains constitutionally entitled to either accept or ignore that advice and nominate whomever he chooses.

Once the President has made his nomination, the Senate's constitutional role is limited expressing its consent through an up or down vote on the nominee's confirmation. It is important to remember that "consent" was never envisioned as a means of having the Senate get precisely the nominee it would have chosen if acting alone. Instead, the Founders envisioned the Senate's role as simply providing a minimal check upon outlandish abuses of discretion by the President. And historically, this has been the case; the Senate approved the President's nominees even if they were not the people the Senate would have chosen. Provided the nomination was reasonable, the Founders expected the Senate to confirm the nominee.

But here we have something the Founders never intended and something without any constitutional basis: a single Senator blocking the confirmation of nominees who were chosen by a merit selection panel simply because they aren't the nominees he would have chosen. Moreover, this is a single Senator from the minority party; in a constitutional sense, Johnson alone should be powerless to influence, much less control, the discretion of the President.

Johnson attempts to offer a weak defense of his actions by pointing to the fact that two of President Bush's nominees for the federal bench similarly were not confirmed. But what he ignores was the posture of those nominations. President Bush held off nominating both Mac Davis and Timothy Dugan until very late in his final term and at a point when he knew full-well that neither had a chance of making it through the Senate. Rather than honest nominations, each was more akin to a President conveying an honorary title of "judicial nominee" upon a couple loyalists.

On the merits, all Johnson can offer as a reason for objecting to Butler is the usual talking point that Butler is an "activist" who was twice rejected by the voters of Wisconsin. Never mind that Butler's electoral loss was a direct result of a vicious and deceitful attack by his opponent that even an unbiased investigatory panel concluded was unethical and sanctionable and that "activist" is the emptiest pejorative in American politics.

As for Nourse, Johnson can offer only two reasons to object to her confirmation. (1) she was not licensed to practice law in Wisconsin until after the President nominated her; and (2) the Senate did not bring her to a vote prior to Johnson's election.

An experienced law professor's law license status is an absurd red herring in the debate as to whether or not the person is qualified for the bench. Law professors infrequently obtain or maintain a license to practice in the state where they teach. There simply is no reason to flush away the hundreds of dollars necessary to become licensed and then the hundreds of dollars each year to maintain that license because teaching is not considered practicing law and thus no license is required. The fact that Nourse was tasked with educating hundreds of the next generation of Wisconsin's lawyers is a greater endorsement of her qualifications than whether or not she maintained a Wisconsin law license.

Moreover, a Judge on the Seventh Circuit from Wisconsin is not somehow tasked with representing the views and interests of the people of her home state. That is the role of a state's elected representatives. But using Johnson's logic, he's unqualified to be a United States Senator from Wisconsin because he spent much of his life as a Minnesotan and came to Wisconsin only because he married a Wisconsinite whose daddy gave him a business in the state.

The fact that Nourse was not brought up for a vote before is again a red herring. Johnson would like the reader to infer that this suggests Nourse was somehow unqualified. The stronger conclusion is that even when outnumbered 59 to 41, Republicans still had delusions of grandeur and, like Johnson, held to the view that they were entitled to block the President's nominations for no good reason. Thus, in light of the threat of a filibuster, or other Republican procedural roadblocks, Democrats were unable to move the nomination ahead.

Both Nourse and Butler are well-qualified for their nominated positions and neither deserves to be held hostage by an extreme Senator whose ego drives him to overestimate his significance.

Can a Forgotten Constitutional Provision Save the Nation from Default? The 14th Amendment and the Debt Ceiling Debate

2011-07-28T13:12:00.002-05:00

The Constitution is sort of like grandma's attic—there's a bunch of good stuff in there but even though it's not that big, few people ever take the time to really look through it all. When you do go through it, you find that some things you were always led to believe were there (e.g. the phrase "separation of church and state" or a requirement that police tell you that you have a right to remain silent) aren't actually there. But other times, you find something you never knew existed but yet turns out to be exactly what you were looking for.

Recently "rediscovered" is a little passage buried in the 14th Amendment, after all the good stuff about due process and equal protection. It says, "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned.

This phrase hasn't been the focus of hundreds of thousands of pages of court decisions because, unlike its better-known brethren in the first section of the 14^th Amendment, there hasn't been reason to really question the validity of the nation's debt. Being backed by the full faith and credit of the United States always used to be the pinnacle of financial soundness. But suddenly, political intransigence has brought this issue to the fore and for the first time in the nation's history, there may be a sustained period where the nation is unable to meet its obligations. What, if any, relevance does this neglected clause of the 14^th Amendment have in the present debate?

Although Treasury Secretary Timothy Geithner referred to the Amendment when explaining why raising the nation's debt ceiling was imperative, former-constitutional law professor Barack Obama says it's not "a winning argument." Not so fast, Professor; there is something worth considering here.

So what does that phrase mean? What does it mean to "question[]" the "public debt?" Is this some sort of esoteric exception to the First Amendment's free speech clause where citizens are barred from wondering aloud if the government is really going to be able to pay all its creditors? If that is the case, the 24-hour news channels have been doing pretty much nothing more than breaking the law for the last few weeks. And would it mean that the United States couldn't have anything but a AAA bond rating because if Standard & Poors dropped the US's rating, it would be questioning the public debt? It's probably safe to say that this is not what Reconstruction Era Congress meant when adding this clause to the Constitution. But what did those politicians mean?

The provision related to the public debt was so widely regarded as essential and non-controversial when it was introduced in the mid-1860s that it was subject to scarcely any debate. But from what little is known about the rationale behind this provision, it is clear that it was passed as a means of shoring up the unstable economic footing of a weakened nation.

As Francis Newton Thorpe noted in his 1901 three-volume treatise, The Constitutional History of the United States, the United States was reeling from the crushing record levels of debt it had incurred defeating the Confederacy. Although the burden was great, leaders knew that any doubt about the nation's willingness to repay its creditors would have disastrous consequences for the struggling nation, both at home and internationally. Therefore, leaders wanted to leave no doubt that every single debt of the nation would be honored and thus took the greatest step possible and enshrined that promise in the Constitution.

The importance of regarding the national debt as inviolable is a notion as old as the Union. It was the reason the newly formed United States specifically re-affirmed its prior debts in Article VI of the Constitution.

Even the early Supreme Court shared the view that nothing could call into question the validity of the nation's debt. In 1829, Chief Justice John Marshall cited the importance of having a national debt being regarded as wholly unassailable as a basis for striking down as unconstitutional a law that, in the view of the Court, might have made it more difficult for the nation to borrow the money necessary to maintain its operations.

As when the 14th Amendment was debated and ratified, the nation today is on perilous economic footing while slowly emerging from an economic calamity that resulted in significant fiscal deficits. However, unlike 150 years ago, where default was so universally condemned that it merited no debate, the nation defaulting on its debt now appears to not only be possible, but a political goal of an extreme faction of politicians.

So can Congress pass a law that forces the nation into default? What if there was no debt ceiling but yet Congress, for whatever self-destructive reason, wanted to force the nation to default upon its obligations to pay for the programs and services it already bought when it passed the budget? Thus, rather than debating changing an existing law, the debate was whether to impose a new law that everyone knew could not be complied with absent default? Could Congress impose an arbitrary cap on the amount of debt the nation could incur knowing full well that it would mean that the Treasury would not be able to cash the checks Congress had already written? Would that law be constitutional?

The 14th Amendment plainly says such a law would be unconstitutional because Congress would not just call into question the nation's debt but go so far as expressly repudiating certain debts. Refusing to raise the debt ceiling arrives at the same result through different means.

But what about this "authorized by law" clause? If there is a legal debt limit, doesn't that mean that borrowing beyond that isn't "authorized by law?"

No; public debt is "authorized by law" when Congress passes the budget and the many other appropriations bills that result in the need for borrowing. Congress ultimately controls the nation's purse strings through the spending bills it passes, not through an arbitrary debt ceiling.

Because compliance with this statute would cause the nation's debts to be called into question, the statutory debt ceiling is unconstitutional. The Treasury would be violating the constitution if it ever failed to pay any of the nation's creditors, which includes not only bond holders who have literally loaned the nation money but also all those to whom the nation owes any money for any reason, such as its employees, its vendors and contractors, and those entitled to government benefits.

The power of the nation to borrow is an inherent part of the nation's ability to execute its statutorily authorized functions. Despite past practices, constitutionally, no additional Congressional authorization is necessary to empower the federal government to incur debt necessary to comply with its statutory spending obligations. Therefore, despite what our Constitutional Law Professor in Chief suggested, the debt ceiling is plainly unconstitutional. Absent the President ordering his Treasury Secretary to comply with the constitution and borrow as necessary in excess of the statutory cap, every creditor of the federal government who suffers any harm as a result of a government default has a constitutional claim against the federal government under the 14th Amendment.

The President's suggestion that the 14^th Amendment road is not an option might well have been a political cattle prod—a means for pushing Congress in the direction he wants by trying to prove that another path isn't available—rather than an honest assessment of his view of the viability of the argument. But the 14^th Amendment option might be precisely the means by which Obama could secure his greatest triumph in this impasse.

While the Republicans in the House battle with themselves and against the Democrats in the Senate, when D-Day finally arrives without a resolution, the President has the opportunity to rise above the intransigence and solve the problem on his own. I can picture the Oval Office address to the nation. He'll sit at that big wooden desk, family photos over his shoulder, look solemnly into the camera, and pick up a pen and sign the Executive Order live on TV. None of the nonsense of using a different pen for each letter; he'll just sign it while he explains that while he had worked so hard to avoid this, a lack of Republican leadership has forced him to take this drastic measure to save the nation from the catastrophe Republicans had attempted to inflict. Of course he'll never say "Republicans;" he'll use code words like "those who chose to say 'No' rather than work for the American people," or "those who disagree with my view that shared sacrifice means sacrifice for everyone, not just those families struggling to make ends meet in these tough economic times." He'll be writing his own campaign commercial.

But politicians trying to too hard to craft campaign fodder must be wary of the melodramatic. We all remember the boondoggle when Bush II tried to create the backdrop for his re-election bid by landing on an aircraft carrier. So Obama better be ready with a response for critics who complain that if he was just going to go down this 14^th Amendment road, why didn't he save everyone a lot of time and do it much sooner?

The answer is simple: the 14^th Amendment road is rocky. The preferred path is a the smooth road of upping the statutory debt ceiling just as has been done 74 times in the past. But when the option is between standing still and letting chaos erupt or prevent catastrophe and moving forward on a rocky road, the best option is the rocky road. Let detractors turn to the courts to try to negate the President's Executive Order. The issue is so thorny it would take years for the matter to be resolved definitively. In the meantime, Congress will have ample opportunities to correct the problem on its own and in the meantime, the financial markets and the fragile economy as a whole can breathe a little easier knowing that unlike Republicans, this President stands behind the nation's obligations.

Say Goodbye to Mr. Winkie: Accused Greendale Sex Predator Facing Federal Charges for Producing Child Porn

2011-07-26T12:20:00.009-05:00

According to a criminal complaint filed in federal court in Milwaukee on July 22, 2011, Chad M. Winkie, 40, of Greendale used his home in the shadow of Southridge Mall to produce hundreds of images and videos of child pornography involving at least three young girls over the last two years.

The allegations against Winkie came to light in mid-July when a 13-year-old friend of one of Winkie's victims began to disclose to her older sister details of Winkie's conduct. Alarmed by what she heard, the older sister turned to their mother, who in turn contacted Greendale Police.

In an interview with police, the victim's friend reported that Winkie would require the victim to take nude photos of herself in exchange for certain favors. Although the friend reported that this happened perhaps as many as 100 times over the past two years, the friend stated that she did not come forward earlier because the victim had sworn her to secrecy and that Winkie threatened to kill the victim if she told anyone. The friend also said she was afraid she would get in trouble if she told anyone.

According to the friend, Winkie soon came to require not only photos of this initial victim but also for the victim to obtain nude photos of her friend. Therefore, the friend reported that on two occasions she also took nude photos of herself for Winkie with a camera provided by Winkie. The friend also reported that Winkie had installed hidden cameras in the victim's bedroom; police later visited the victim's bedroom and discovered hidden cameras as the friend described. Also according to the friend, the victim regularly received pornography through email, which the friend believed was sent by Winkie.

Officers interviewed the initial victim who confirmed the information provided by her friend. The victim stated that she told her mother that Winkie made her take pictures of herself but instead of reporting the matter to police, her mother punished her. In addition to describing instances where Winkie required her and her friend to take nude photographs of themselves, she went on to describe numerous instances where she and her friend were sexually assaulted by Winkie.

In executing a search warrant at Winkie's home, law enforcement discovered the camera the victims identified as the one they used to photograph themselves for Winkie. Officers also discovered videos depicting Winkie taking nude photos of the initial victim, sexually assaulting the victim, and the victim and a third young female getting dressed.

Winkie is currently married; a prior marriage ended in divorce in 1996. [UPDATED 7/27: Court records indicate that Winkie's wife informed the court that she wished to have Winkie remain in custody rather than being allowed to return to the family home, which is on the brink of foreclosure.]

According to his Facebook page, [which appears to have been removed as of 7/27 but you can see a portion of it here] Winkie is a graduate of Beaver Dam high school, a former Marine, and the "Fixed Operations Director" at Boucher Automotive in Greenfield. Although Winkie's name previously appeared on Gordie Boucher Nissan of Greenfield's website as the dealership's Service Director, his name has since been removed. [UPDATED 7/27: Court records indicate that Winkie was terminated from his position with Boucher following his arrest at the dealership.]

In a bit of irony, Winkie lists the following quotation on his Facebook page as a personal favorite: "what's right is right, even if no one is doing it. What's wrong is wrong even if everyone is doing it."

Winkie also identifies himself as an ardent supporter of Governor Scott Walker, especially Walker's anti-union policies, and has a photo of the controversial governor as his Facebook profile picture.

The criminal complaint pending in federal court charges Winkie with one count of possessing child pornography and one count of producing child pornography. In the federal system, a criminal complaint is a preliminary charging document, and therefore charges contained in any subsequent indictment may vary substantially.

In addition to federal charges, based upon the allegations contained in the federal criminal complaint Winkie may face state charges for first degree sexual assault of a child, sexual exploitation of a child, and exposing a child to harmful material, among other offenses. Law enforcement report they continue to investigate the possibility that Winkie victimized other children and committed other crimes. Parents whose children may have had contact with Winkie are encouraged to discuss the matter with their children. If parents suspect their child may have been victimized, parents should contact Greendale Police.

A federal conviction for production of child pornography usually carries with it a mandatory minimum of 15 years in prison and up to 30 years in prison, while each count of simple possession of child pornography can be punished by up to 10 years in prison.

Electronic court records indicate that Winkie has no criminal record. Winkie remains in custody without bond.

UPDATE August 17, 2011:

On August 16, 2011, the grand jury returned a two count indictment charging Winkie with two counts of producing child pornography. If convicted, each count carries a mandatory minimum of 15 years in prison and a maximum of 30 years.

UPDATE September 30, 2011; October 4, 2011:

In the early morning hours of Monday, September 26, 2011, Chad M. Winkie was found hanging in his cell at the Kenosha County Detention Center where he was being held awaiting trial. Lifesaving efforts were unsuccessful, and Winkie was pronounced dead as a result of an apparent suicide. He will be buried on October 6, 2011, a day after what would have been his 41st birthday.

Save $1.5 Million and End Up Spending $99 Million: A College-Dropout's Version of Fiscal Responsibility

2011-07-20T17:08:00.001-05:00

When Scott Walker slammed the brakes on Wisconsin's federally funded high-speed rail service during the greatest fiscal crisis Wisconsin government has ever known, he said "No" to thousands of unemployed workers desperate for family-supporting jobs.

He said "No" to the drivers who are sick of being stuck in traffic.

He said "No" to millions of dollars in new private development that would have provided jobs and cut our tax burden.

He said we couldn't afford a $1.5 million-a-year investment to obtain all these benefits.

But our college-dropout governor failed to check his math. Wisconsin isn't saving $1.5 million a year as Walker claimed. Instead, Walker's fiscal foolishness will end up costing Wisconsinites up to $99 million. This $99 million is in addition to all the lost benefits of having new jobs, new private investment, and the countless benefits that come with having a modern transportation infrastructure meaning that the total cost to Wisconsin is in the hundreds of millions. The $99 million is a result of the fact that instead of having the federal government pay for necessary upgrades on the Milwaukee to Chicago train line, as would have been done if Wisconsin had agreed to extend that line through Milwaukee and on to Madison, these upgrades will now have to be paid for by Wisconsin taxpayers.

Yes, that's Walker's version of fiscal responsibility. Wisconsin needs a leader who can understand that growth requires investment and that short-term cuts often hurt us in the long term. That person is obviously not Scott Walker.

Republicans' Tax Anorexia is Now Life-Threatening

2011-07-19T17:07:00.001-05:00

Republicans have crossed the line from a mere distaste for taxes and into a full-fledged and life-threatening case of tax anorexia. This is no longer about making government leaner and healthier; this is about starving the government and the nation as a whole. It's time for an intervention.

While other economic catastrophes arise unexpectedly when bubbles burst, the coming calamity of the nation not being able to pay its bills is a crisis we can see clearly fast approaching on the horizon. And rather than taking measures to avert a crisis, Republican Hose leaders John Boehner and Eric Cantor are stomping on that accelerator and racing for that cliff like Thelma and Louise.

The latest act of political theater is the Republican "cut, cap, and balance," proposal. Despite the scarcity of time and the fact that this proposal has absolutely no chance of passing, Republicans prefer to proceed with this meaningless exercise rather than focusing on any real solution. By choosing to stage an exhibition to pander to a minuscule but vocal tea party minority, Republicans reveal both how out of touch they are with the mainstream and how foolish their economic policies are.

Because hyperbole is the only thing that seems to get any attention in the debate, here's my version of rhetorical bomb throwing: Republicans wish America was defeated in every war it ever fought, that the Great Depression never ended, that Hitler completed his Holocaust, and that Osama Bin Laden was still planning attacks and watching porn in Pakistan.

Winning wars, surviving economic crises, defeating fascism and communism, and hobbling the world's most dangerous terror network all required deficit spending. If a balanced budget became a constitutional requirement, the nation would be prohibited from spending more than it takes in. While international conflicts and disaster recovery could be funded through massive tax increases, when a balanced budget amendment is combined with Republican tax-phobia, the nation is assured effective collapse when it encounters its first crisis.

The point is, sometimes deficits are necessary. For example, military conflicts are expensive. World War II cost the nation in the neighborhood of $3 trillion (in 2011 dollars) much of which was financed through debt.

While a nationwide draft and wartime rationing made the conflict in Europe and Japan a central part of every American's life, today we are able to largely ignore our nation's international conflicts. But just because we ignore the conflicts does not mean we can ignore their price tags. The conflicts in Iraq and Afghanistan have cost the nation about $1.2 trillion so far. These sorts of expenditures cannot be financed absent resorting to deficit spending.

But deficit spending is necessary not only in times of armed crisis but also at times of economic crisis. Republicans like to point out that government expenditures (or budget deficits or national debt) have risen as measured as a percentage of GDP. This statistic, however, does not necessarily reflect an increase in government spending. To the contrary, this percentage can increase even when government spending is cut if GDP falls faster. During times of economic crisis, like the one we are slowly pulling ourselves out of, GDP will naturally fall.

Republicans also seem to ignore or not understand that government spending is a major component of the GDP calculation. By cutting government spending (thus reducing the numerator) GDP will also decrease (thus reducing the denominator) and the end result is a minimal shift in the overall ratio.

But government spending is likely to increase during a time when GDP falls for another reason: more people need government services. As GDP falls, unemployment increases and those who remain employed are likely to see their wages cut. Therefore, more people turn to Food Stamps, unemployment benefits, Medicaid, and many other government services that exist to protect those who find themselves in need.

Not only is government spending directly a component in the nation's overall economic activity, government spending ripples throughout the economy serving as an engine for countless other corners. Cutting government spending is akin to slamming on the brakes of the economic engine. It is what is done in times of inflationary pressure, not when the greater fear is deflation.

Even on the micro scale, it is easy to see how economic crises necessitate deficit spending. A breadwinner loses a job and the family turns to credit cards to make ends meet through the hard times. But when a new job is found, the family is able to pay down the credit card debt and then start to put a little aside for when times get tough again. The family does not ignore the credit card debt and throw a massive party blowing all the money they are finally earning and then some just to have a good time with their friends. But even if a family were to be so foolish, at a minimum, if times got tough again, the family should have little hesitation to go back to their friends and ask for a little help to get through the lean times.

Yet, despite the "the government has to live within its means just like a family" rhetoric, this is precisely the Republican economic plan. Coming out of Clinton's economic boom, Republicans turned an unprecedented government surplus into the nation's biggest deficit by giving away money to their friends in the form of tax breaks. Republicans seemed to have little concern about deficits when deficits exploded under Bush; Dick Cheney famously said that deficits did not matter. Now, having found religion again when times are tough, Republicans refuse to turn to the friends who got the benefits of their binges and ask for a little help to get through the lean times.

There is no real discussion of "shared sacrifice." Republicans use this term but it's just a code word for "make the poor and middle classes sacrifice." There is no mention of actually making those who are thriving in this economy share in the pain that the rest of us are feeling. Spending cuts take money out of people's pockets in much the same way a tax increase does but you do not hear Republicans making that argument (unless, of course, the debate is whether to cut subsidies to oil companies). Whether it comes out of the income or the expenditure side of the balance sheet, someone is hurting. The question is who is in the best position to absorb that financial pain? Should it be all the seniors who have scale back on groceries to pay higher Medicare premiums because of cuts to federal subsidies? Or should it be the hedge fund managers who get to pay a lower rate on their income than the rest of us because of a loophole in the tax code?

In the distorted view of Republicans, only one thing slows down economic activity and that is taxes on businesses and the wealthy. In theory, this could be true if all the money used to pay any additional taxes would otherwise be used directly for productive economic activity and the government did not put this money to productive use. But this is simply not the case.

Republicans would like to believe that every single dollar a business or wealthy individual doesn't pay to the government will go directly to the wages of a new employee. But as the lackluster economic recovery demonstrates, even when corporate profits have risen to new records and cash reserves have swelled, businesses remain reluctant to hire new workers. Instead, this money sits idle rather than being put to productive uses.

When it comes to quickly ensuring money is put to productive use, Reagan was wrong; government is the solution. When the federal government reduces its revenues through a tax break or even an un-enacted tax increase, it has absolutely no way of ensuring that this money is put to use creating jobs. But if the government collects the money and in turn spends it, the government can be absolutely sure that every cent is put to productive use.

Republican economic policy is, plain and simple, backwards. Deficits are necessary during times of economic crisis. Cutting government spending, especially during sensitive times like a tenuous economic recovery, is most likely to forestall the recovery and compound the crisis. When the economy recovers, surpluses should go first to paying down debt incurred during the lean times and not to giveaways to friends. Government must always be frugal but never foolish. Republicans are trying to get away with profound foolishness by calling it frugality.

The Political Wonderland of Republican "Negotiations"

2011-06-25T00:32:00.001-05:00

Representative Eric Cantor walked away from President Obama's efforts to save the nation from defaulting on its debts. The reason? In his mind Democrats are no longer willing to "negotiate" because Democrats are insisting that the budget fix include some of their ideas and not simply reflect Republican ideology. Specifically, Democrats seek new sources of revenue rather than simply tax cuts as the means of addressing the deficit. Holding true to Republican dogma, tax cuts are anathema to Cantor. But now added to Republican orthodoxy is the belief that anytime the opposition doesn't fully capitulate to your demands, that side is refusing to negotiate.

Sadly, Democrats can be blamed for contributing to this irrational mindset. Democrats are losing politically because they started off from too reasonable of a position. In politics, you are ultimately rewarded by being unreasonable. Republicans are firmly grounded in their corner of insisting upon tax cuts so why didn't Democrats start off with the view that the nation's budget problems will have to be solved exclusively through increased revenues? The end result would be a compromise where each side gave a little and both spending cuts and revenue increases are used to solve the problem. But by starting from this middle ground rational position, Democrats have little to give.

Strong arguments can be made why cutting government spending and cutting revenues during an economic crisis are precisely the wrong way to solve the problem. When times are tough, people and businesses become much more reluctant to spend money. Even among those businesses and individuals who are thriving during tough times, the general fear in the economy results in unnecessary caution. When they are afraid of the future, consumers do not make purchases, thereby compounding the economic problems of everyone down the line. Businesses prefer to hold onto their profits rather than invest in new equipment or new personnel. If governments follow this course, too, decreased spending results in layoffs of not only government workers but of the workers dependent upon government spending, thereby compounding the unemployment problem Republicans allege spending cuts will help alleviate. The money transferred given away from the government to people and business in the form of tax savings ends up sitting in bank accounts instead of going to work in the economy. Under the Republican plan, when times are tough, the money necessary to spark the economic recovery sits idle.

The only way a government can be sure that money will be put to work in the economy is through its own spending. Increasing, not decreasing, government spending is the most direct way to spark economic activity. And obviously government spending requires the government to take in additional revenues. Essentially, the only option for the government to be sure that those who can afford it are putting their disposable income to work in the economy is through taxes which the government can then use for its own spending. The government cannot, for example, pass a law saying that everyone who makes over $200,000 a year must go out to eat twice a week. But the government can tax in order to get that otherwise idle income to work in the economy.

But obviously increasing taxes on those who can least afford it will be counter-productive. Increased revenues must be targeted to those who can afford it. In the most simplistic terms, this means being amenable to strategies such as undoing the Bush tax cuts for the wealthiest Americans. The nation is hurting and it's time for Republican slogans like "shared sacrifice" to be put into practice.

If Republicans insist on approaching "negotiation" as simply using obnoxious bully tactics and specious threats as a means to force the opponent to capitulate to their viewpoint, it is essential that Democrats double-down and call the Republicans bluff. If Republicans insist on only spending cuts, it's time for Democrats to start over and begin anew with a demand that they will consider only new revenue sources as a means to deal with the debt crisis. Start the process over because this is the quickest route to a reasonable compromise.

Armed and Dangerous in Walker's Wisconsin: What's Really in Wisconsin's Concealed Carry Bill

2011-06-22T23:27:00.004-05:00

After widespread outrage at the Republican proposal to allow Wisconsinites to carry concealed firearms without any licensing or training, the latest effort to feed the Republican gun fetish was modified to supposedly require training. This bill passed the Legislature on Tuesday and is a signature away from becoming law. While the media generally refers to this bill as requiring training, omitted from the public debate is that the bill maintains avenues for individuals to legally carry concealed weapons without obtaining any training. And for those who undergo training, the required training need not be related to carrying a concealed weapon. The bill even explicitly prohibits making actually firing a gun a requirement for obtaining a license to carry a concealed weapon.

Instead, under this legislation simply completing a hunter safety course qualifies a person to carry a concealed firearm. The notion that completing a hunter safety course qualifies a person to make the split-second life-and-death decisions that come up in the context of carrying a concealed weapon is akin to arguing that sitting through the flight attendant presentation reminding you that your seat can be used as a flotation device qualifies you the play Captain Sullenberger and land a plane in the Hudson. Sure, either training involves planes in water but the scope and issues involved are vastly different.

Hunter safety is designed “[t]o reduce the potential for hunting accidents, injuries and fatalities; to reduce the potential for conflict between hunters, landowners, and other resource users; and to promote safe, responsible, and ethical use of the environment and our resources.” While hunter safety is aimed at avoiding shooting another person, a person who carries a concealed weapon does so for the exact opposite reason—to shoot another human being. It is wholly illogical how being trained not to shoot a person or “[f]ield care of harvested game” prepares you to be able to face down an armed criminal.

When can a person appropriately draw a firearm? When will drawing a firearm unnecessarily escalate the potential of violence? What are alternatives to the use of a firearm? When is deadly force appropriate? These are just a few of the most basic matters that any person who carries a concealed weapon must be prepared to deal with. Yet Wisconsinites will be able to carry deadly weapons without having ever received even the slightest bit of training on these serious matters.

And contrary to what is often reported in coverage of this bill, persons may become licensed to carry a concealed weapon without completing any sort of training. The most direct of these avenues is for individuals who “participated in organized shooting competitions.” Needless to say, the skills and knowledge of a weekend trap shooter are far removed from those necessary to appropriately respond to an armed confrontation, yet in the eyes of Wisconsin’s Republican-controlled Legislature, you don’t even have to be close to be good enough.

There are various other provisions tucked into this bill, such as a provision eliminating Wisconsin's ban on private citizens carrying electric weapons such as Tasers, but perhaps the most concerning is a provision that instead of giving police officers the tools to deal with a citizenry more likely to packing heat, forces them to choose between taking steps to ensure their personal safety and instead finding themselves in jail. Under the bill, “any law enforcement officer who uses excessive force based solely on an individual's status as a licensee may be fined not more than $500 or sentenced to a term of imprisonment of not more than 30 days, or both.” Certainly, no police officer should ever use "excessive force" but it is striking that the legislature did not think it was good enough to merely treat armed citizens like everyone else but instead singles them out for extraordinary legal protection. These criminal sanctions applicable only to law enforcement officers are in addition to any other criminal or civil remedy that might be applicable.

Excessive force might take a variety of forms but can include something as simple as an officer pointing his weapon at an individual. When faced with the life-threatening situation of encountering an armed suspect, law enforcement officers are trained, for good reason, to take immediate control of the situation, and therefore may well be quick to draw their firearm. But if that person turns out to have a valid concealed weapons permit, the officer has arguably committed a crime because he used force that was not necessary strictly because of the individual’s status as a licensee (i.e. he had a concealed weapon).

In the seconds immediately after a police officer first encounters a subject, a person licensed to carry a concealed weapon is going to appear precisely the same as a person unlawfully carrying a weapon and wishing to do the officer harm. An officer lacks the psychic ability to know whether a person has a concealed weapons permit in his wallet and this bill explicitly prohibits law enforcement officers from using anything other than ESP to know ahead of time whether a person is licensed to carry a concealed weapon.

Law enforcement is barred from accessing licensing information except for a few limited purposes such as verifying whether a person claiming to be licensed actually is. A police officer will have absolutely no way of knowing whether the driver he has just stopped is likely to be carrying a weapon. Law enforcement is even barred from using licensee information for an investigatory purpose.

Just as law enforcement might turn to DOT records to see if a suspect owned a car fitting the description of the vehicle seen fleeing a robbery, it should be common sense that law enforcement would be able to look to concealed weapons license data to determine if a person suspected of a shooting is authorized to carry a firearm. Yet this bill prohibits such common sense investigatory tactics.

It is also frequently reported that this bill prohibits the carrying of concealed weapons into sensitive locations such as courthouses. This, again, is an overlooked falsehood. The bill permits anyone to carry a firearm into a courthouse simply by obtaining authorization from a judge. A single judge with an extreme view of a citizen’s right to bear arms might effectively undo this prohibition. There is no indication in the bill that a judge’s authority to issue such authorizations is limited to his or her own courtroom or even courthouse, but appears that such authorization would include any courthouse in the state (notwithstanding any authorization from a judge, firearms would still be banned from federal courthouses pursuant to federal law). Moreover, the bill does not answer questions such as whether “judge” is limited to circuit court judges. What about municipal judges or federal judges or bankruptcy judges? Or could a Wisconsin Supreme Court justice send out concealed weapon authorizations as thank yous to campaign contributors? How long is the authorization good for? Is it still good after the judge gets recalled for issuing authorizations to everyone who requests one?

Judges personally can also carry weapons into courthouses and so too can assistant district attorneys. The notion of a judge or an assistant district attorney whose only training was a hunter safety court taken decades earlier carrying a firearm into court seems like an obvious recipe for a multi-million dollar judgment against the state when something goes terribly wrong. Anyone who has spent time in a criminal court will know that eventually a defendant acts up. What happens when an ADA jumps in after a defendant starts scuffling with the bailiffs and instead of letting the bailiffs use their training and expertise to restrain the suspect, he pulls a 9mm out of his ankle holster and puts a bullet into the back of the suspect's head because he never learned that this is not a situation where deadly force is appropriate? Or what happens when a defendant overpowers a district attorney whose hunter safety class never included a portion on resisting being disarmed by a violent attacker, and uses that gun to take the life of a juror who just convicted him?

At a minimum, it seems like another reason that Milwaukee County Sheriff David Clarke will use in his next spat over courtroom security; if a judge doesn’t like being without an armed bailiff, then let the judge put a .45 under his robe and handle security himself.

Another Last-Minute Deal to Screw Wisconsin Workers

2011-06-13T18:36:00.001-05:00

Without public hearing and with little publicity, a provision largely eliminating Wisconsin's child labor laws was slipped into the state budget at the behest of Republican business interests, further undoing Wisconsin's progressive tradition and hurting working families.

The Wisconsin Grocers Association sought the repeal of the child labor laws to enable 16- and 17-year-olds to work unlimited hours per week and at any time of day with the only limitation being, essentially, that they are not allowed to work during hours school is in session. Under current law, children ages 16 and 17 are allowed to work a maximum of 50 hours per week if school is not in session and 26 hours if school is in session. On school days, children are allowed to work up to 5 hours and cannot work past 11 PM.

Under the proposal that passed the Joint Finance Committee on a party-line vote, these limitations are eliminated so that children are treated essentially the same as adults with respect to hours of work.

Concerned that children will become more interested in working long hours to earn a few bucks in the short term rather than taking the long term view and investing time towards their education, opponents have criticized this measure anti-education.

Proponents, such Michelle Kussow, the grocers association's vice president of governmental affairs and communications, framed this as a measure to make children able to better compete in the workforce. Kussow noted that in light of the struggling economy and the increase in the minimum wage, teens are often times forced to compete with adults for the same jobs.

Kussow is correct in his assessment and unfortunately, therein lies the problem with this proposal. Although originating largely as a means of protecting children against exploitive employers, child labor laws also serve the important role of protecting adult workers by making adult workers more valuable members of the workforce. Adults are often-times more expensive to employ for a variety of reasons, but employers have been willing to pay a premium in order to hire a worker who is more likely to be available whenever employer needs him.

With the passage of this measure, there is no longer as strong of an incentive to hire an adult over a child. To the contrary, a child becomes a more attractive choice because a child looking only for some spending cash is more likely to do the same job cheaper than an adult faced with rent, utilities, groceries, medical bills, daycare, and all the other necessities of life. The result is that the adults with families to support and desperate for even the lowest jobs on the economic ladder will lose out on these jobs to children looking for discretionary spending money.

Even the argument that this proposal makes it easier for children to find work is specious. When a child works more, he does so at the expense of another child or adult who would otherwise be able to work at that job during the times that child would be barred from working. Consider a restaurant that needs some extra help on its 5 busiest nights each week from 4-10 PM, for a total of 30 hours per week. Under current law, if the employer was willing to hire children for this job, filling this position would require at least two children to split the job in order to avoid exceeding the 26 hours a child is able to work during a school week. But under the proposed law, the employer can get by with hiring only a single child. Sure, the child works more and puts extra money in his pocket, but this comes at the cost of another child losing out on the opportunity to gain valuable work experience.

Ideally, every person who seeks to work will have the opportunity to do so and earn a living wage. Providing opportunities for children to work is important in building the foundation for a future productive workforce. Unfortunately, especially now, these ideals are far from reality and thus we must ask whether changing the rules of the game to make it easier for children to take jobs from adults is consistent with our overarching priorities which include reducing unemployment.

It should hardly be surprising that grocers are in favor of this measure; they are concerned only with getting groceries onto the shelves and into customers' bags in the manner that will mean the biggest profit. But this effort aimed at boosting the bottom line of certain Wisconsin businesses comes at the expense of all of us.

Repealing Wisconsin's longstanding child labor laws hurts Wisconsin's children and hurts Wisconsin's adult workers, most especially those who find themselves at the lowest economic rung. The only winner, as you might expect, is yet another narrow group of Republican donors.

Bringing Back Bondsmen

2011-06-03T22:55:00.001-05:00

Back in January of 2010, before Scott Walker was even a candidate for governor, I wrote a post speculating that Walker's extreme penchant for privatization might motivate him to take the radical step of bringing back for-profit bondsmen to Wisconsin.

I wrote:

I am sure it is only a matter of time where some shortsighted individual proposes bringing back for-profit bondsmen. Letting private for-profit businesses do government work in a manner that undermines the community as a whole and ends up costing taxpayers far more in the end sounds exactly like something Scott Walker would love to propose. It's likely only a matter of time.

And what do you know? Slipped into Walker's budget at the last moment is a provision that would return this embarrassing industry back to Wisconsin. This is in spite of an overwhelming national trend of abolishing this despicable practice and the fact that in every single nation in the world except the United States, posting another person's bond in exchange for a fee is a serious criminal offense.

Studies have repeatedly shown that the utilization of for-profit bondsmen is antithetical to every goal of the criminal justice system and result in increased costs for taxpayers and the public at large. But obviously for-profit bondsmen are not bad for everyone. While taxpayers and society as a whole loses, private corporations win. Not surprising that bringing back this disgraced enterprise has become a priority for Wisconsin's Republicans. This is just more proof of where the priorities of these extremists really lie.

It's time to do some digging and see what sort of contacts bail bond lobbyists have had with Wisconsin's Republicans and to see just how much money the industry has funneled to these legislators. Extremism like this does not arise out of nowhere.

Rather than just providing a link, I re-posting what has now prove to be an unfortunately prescient post:

Wisconsin's criminal justice system certainly has its problems but in actuality, in many ways it is a model for the rest of the nation. Notably, Wisconsin can be proud to be one of only four states to have done away with the abomination of a for-profit bond system.

In nearly every other state, the bail bondsman is a ubiquitous part of the criminal justice system. In a thorough series of reports, National Public Radio outlined how this system not only results in a denial of the basic civil rights of criminal defendants for the sake of private profit but ends up unnecessarily costing taxpayers millions of dollars every year.

For profit bonding is illegal nearly everywhere in the world except the United States. "In England, Canada and other countries, agreeing to pay a defendant's bond in exchange for money is a crime akin to witness tampering or bribing a juror — a form of obstruction of justice." "Most of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system."

In principle, a for-profit bond system makes intuitive sense. The idea is simple. People accused of crimes don't want to sit in jail waiting for their case to come to trial but the government wants to be sure that if defendants are let out of jail, they will show up for court. So rather than just taking a defendant's word for it, the government needs some more concrete assurances. And that assurance takes the form of cold hard cash. So the court takes a look at the defendant and the charges that he faces and makes a guess of his risk to make a run for it (or maybe just be too lazy to show up for court). That guess takes the form of a dollar amount, say $1000. If the defendant posts $1000 with the court and makes all his court appearances he, or whomever posted the bond for him, will get the money back at the end of the case, even if he is convicted and sent off to prison for the rest of his life (in Wisconsin there are provisions where court ordered restitution or fines can be ordered paid from the bail meaning that if a mom posted bail money for her son, it's up to her to get that money back from her son; not necessarily a bad idea when you consider the alternative would be making the victim or the court try to get money out of the defendant).

But what if the defendant cannot come up with that $1000? Well, that is where the bond company comes in. In exchange for a non-refundable fee, generally 10% of the bond so $100 in my example, the bond company will post the $1000 bond. If the defendant fails to appear, the bond company will lose the $1000 it posted with the court and so there is a profit motive to go and hunt down the absconder. Thus, television shows like Dog the Bounty Hunter.

However, the reality is that if a defendant takes off bond companies rarely pay up the amount they promised to pay and don't go hunt down absconders. What was supposed to be a system to take some of the administrative and man-hunting burdens away from the government ends up as a failure. The government does not get the money it was promised and ends up having to chase down absconders anyway.

The costs of this for-profit system is recognized in another way. The bond system originally might have meant defendants who were not able to make bond now were able to do so by coming up with only a percentage of the court ordered bond. But now bondsmen have become so ubiquitous that now a court ordered bail is not what the court believes is appropriate but rather 10 times that amount, with the understanding that the defendant will be posting the amount to a bondsman. A defendant might be able to scrap together $500 to pay the 10% of his $5,000 bond on his petty misdemeanor charge but when he recognizes that this is money he's not going to get back, he or his friends and family might think twice. Defendants are forced to sit in jail because they cannot make bail, eventually getting to a point where pleading guilty and getting off with a time served disposition makes a lot more sense than continuing to sit in order to prove one's innocence seems like a foolish proposition.

In fact, the utilization of bondsmen arguably increases the motivation to run (or at least eliminates a strong incentive to appear in court). When a defendant posts his 10% and gets out of jail, that money is gone. Whether he shows up or not, he's not getting that money back. But if it is his own money on the line, or better yet, the money of his family, and the money will be forfeited only if he were to run, he is likely to think twice about running. If running means mom is going to lose her house or the retirement account she just posted as bond, son is unlikely to be lazy about making his court appearances or think about skipping town. And if he did, it's not like he is going to be able to hide out with mom; she's going to be the first one to tell the cops where he is so that she won't lose the asset she posted.

Although bondsmen are non-existent in Wisconsin, their existence in this nation is an embarrassment to American ideals. The continuation of the system results in increased costs for taxpayers due to a greater numbers of individuals being kept in jail before trial unnecessarily. Their profit motives corrupt basic notions of justice. They proudly acknowledge opposition to programs that will better serve the community as a whole because they would hurt their business. In fact, it is amazing that Wisconsin has stayed bondsman free this long. I am sure it is only a matter of time where some shortsighted individual proposes bringing back for-profit bondsmen. Letting private for-profit businesses do government work in a manner that undermines the community as a whole and ends up costing taxpayers far more in the end sounds exactly like something Scott Walker would love to propose. It's likely only a matter of time.

Time For Democrats to Double-Down on the Debt

2011-05-12T21:44:00.000-05:00

Raising the debt limit is not a partisan issue; everyone agrees it absolutely must be raised. In fact, failing to raise the debt ceiling is a lot more likely to hurt Republicans' Wall Street pals than it will impact the average Democrat. But yet Republicans seem to believe the ball is in their court. And inexplicably, Democrats seem content to play the game that way. While controlling only 1/3 of the three lawmaking portions of the federal government, Republicans seem to have taken the Bizzaro World view that they are in charge. And so Republicans are willing to hold the nation's fiscal integrity hostage in exchange for outrageous and draconian cuts in spending.

If there was ever a time for Democrats to make clear what their priorities are, it is now. Democrats are in control; why are they so quick to forget that? The debt ceiling needs to be raised; there is no debate on that. So why aren't Democrats in the driver's seat here? Why aren't the tables flipped with Democrats demanding Republican concessions to deal with the debt, such as an elimination of monumental subsidies to the most profitable businesses in the history of the world or if Republicans demand rolling back spending to levels it was at years ago, then how about likewise rolling back tax rates to where they were years ago? At a time when the income of the wealthiest Americans has exploded, the taxes they pay have plummeted.

As Republicans should be well-aware in light of their alleged business acumen, there are two broad considerations to the bottom line of any business: income and expenditures. A struggling business is unlikely to recover simply by focusing upon expenditures; it is essential to look to the revenue column as well. Yet Republicans seem to hold a deep irrational and pathological fear of anything on the income side of the balance sheet.

It is essential the Democrats not only call the Republicans' bluff but double-down. Not only will the Democrats not agree to the Republican demands, but in exchange for Democrats supporting any effort to increase the debt ceiling, Republicans must agree to, at a minimum, eliminate the Bush tax cuts for families making over $250,000 per year. Oh how I yearn for the days when compromise was not capitulation and leaders actually led.

Yeah! Stick It To Those Overpaid Prosecutors!

2011-05-05T23:27:00.002-05:00

It's doubtful that college dropout Scott Walker would find political guidance in the timeless words of Shakespeare but perhaps he has found inspiration in the famous quote: “The first thing we’ll do is kill all the lawyers.” At least when it comes to the lawyers who are on the front lines of public safety in the criminal justice system. Lawyers who represent the state’s indigent defendants are no longer getting paid. And now after prosecutors not surprisingly rejected Walker’s proposal to go another 6 days without pay in just the next two months on top of a 20% cut in wages in direct contravention of the contract they negotiated long ago, Walker’s new proposal is to turn every single prosecutor into a part time worker resulting in more than a 20% cut in pay and benefits.

And sure, why not? Let’s pare a little fat back on these overfed hogs! Everyone knows lawyers are lazy, overpaid, and unnecessary, right? So let’s look at just how “overpaid” these workers are.

Ever since the reign of Tommy Thompson, prosecutors have not had “pay progression.” I am not talking about foregoing cost of living adjustments but prosecutors have no hope of earning more as they gain experience and are trusted with more and more complex cases. A prosecutor with 10 years of experience will in all likelihood be making the same as a newly-hired attorney fresh out of law school.

The lack of pay progression might be reasonable if the starting was reasonable. However, a prosecutor in Wisconsin with 10 years of experience can expect to make about $50,000 a year. In Milwaukee County, the average salary for all attorneys is more than double that at $106,940 per year. Not surprisingly, the absurdly low pay has resulted in the loss of 72% of the state’s prosecutors in just the period between 2001 and 2007.

The consequence is that lawyers fresh out of law school are routinely entrusted with ensuring that the state’s most violent and dangerous criminals are locked up. They are quite literally on their own because in light of the exceptionally high turnover, the most experienced prosecutor in the office may well have only a year or two more experience than the most junior member.

The exceptionally low wages not only make many quickly leave the profession, but many find themselves economically unable to even consider that career path. Remember, these prosecutors have doctorate degrees and have spent a minimum of 7 years in college. With law school costing about $60,000 for each of the three years, and even a state school costing $20,000 for each of the four years of undergrad, it is not uncommon for new lawyers to be facing over a quarter million dollars in student loan debt. The result is over $1,300 a month in student loan payments for the next 30 years of the new lawyer’s life. For many, especially those who wish to have children and a home, it is simply not reasonable to accept a job earning $50,000 a year while facing the constant threat of layoff or further wage reductions.

Not surprisingly, prosecutors who have not yet abandoned the sinking ship often find it necessary to work second jobs. Like Amy Menzel who makes more as a waitress than she does as an assistant district attorney or Mike Luell who taught at MATC.

To put this in some perspective, consider the fact that the cop on the witness stand or the bailiff in court likely makes more than the assistant district attorney prosecuting the case. This is despite the fact that the attorney underwent 7 years of schooling and undertook an immense amount of debt, while being a law enforcement officer requires only 2 years of college, generally at a technical college at a fraction of the cost of a university. In light of this former Assistant District Attorney Mike Luell’s decision should be hardly surprising. When he recognized that despite his 8 years of service, his meager salary as an assistant district attorney would not be sufficient to support his new family, he left the Racine County District Attorney’s Office for the Oak Creek Police Department, where he earned a higher salary, better benefits, knew he’d be rewarded for his experience as a police officer and no longer had to live under the constant threat of further wage reductions.

Now Walker wants to cut even further: fire 55 prosecutors; cut the wages of the remaining prosecutors by 2%; and reduce all remaining full-time prosecutors to part-time at 80% full-time equivalence (for an additional 20% reduction in wages). So instead of $50,000 a year, a prosecutor who remains can expect to be earning less than $40,000 a year.

All this at a time when by any measure, there is absolutely no fat to cut. The number of criminal cases has grown in Wisconsin while the number of prosecutors has already been cut. As of 2006, studies showed that Wisconsin needed about 100 more prosecutors to be able to adequately deal with the case load demands.

Despite every bit of evidence demonstrating that prosecutors are grossly underpaid and understaffed, in consistently delusional fashion Scott Walker insists upon going the other way. There is absolutely no other possible result; criminals will go unpunished under Walker’s plan.

This is not a matter of trimming waste from government; this is not a matter of making government more efficient. This is an extremist governor willing to go to any length, including dramatically jeopardizing public safety, in order to fulfill a shortsighted and ideological goal of hurting anyone who happens to receive a paycheck from a government and to avoid even the prospect of not redirecting spending away from self-serving goals like giving taxpayer handouts to businesses or suppressing the turnout of those who tend not to support candidates like him.

For a governor who speaks so much of the “free market” and making government competitive, it is ironic that he refuses to pay the employees he entrusts with keeping the public safe anywhere near a market wage. Like anyone else, the government gets what it pays for. If it wants to treat prosecutors as disposable and accept complex prosecutions of society’s most dangerous criminals being bungled by bottom-of-the-barrel newbie lawyers or prosecutions ignored because there simply is not the staffing to sustain them, we should get used to having criminals unnecessarily left out on the street. If there's one thing seven years of college will teach you, it's that you'd be stupid to be a prosecutor in Scott Walker's Wisconsin.

In Declaring Victory, Prosser Raises Questions of His Fitness for the Bench

2011-04-19T12:57:00.002-05:00

In decrying the need for the statutorily authorized recount in the suspect election that seems to have placed him on the bench for another decade, David Prosser has raised questions of whether he possesses the basic characteristics that every American should expect of anyone who sits on the bench. Everyone who dons a robe and assumes the bench should be trusted to act impartially. Impartiality is not merely an absence of bias (something the conservative wing of the court has been struggling with, but that is another story), but rather its essence may be summed up in the familiar idiom, "What if the shoe was on the other foot?"

Prosser and his campaign contend that a recount of the recent Supreme Court election is unnecessary and have vowed to oppose any effort to conduct one (raising the disconcerting notion of a sitting Supreme Court Justice actively seeking to obstruct a process that is explicitly authorized by law). But would Prosser and his senior campaign officials be contending that "the result of the election is not in doubt" and that a recount is "frivolous" if he was the one trailing by less than 0.5% of the vote total? Then throw in the fact that there is concrete evidence of profound mismanagement of the election tallying in the county that most strongly supports your opponent. Just imagine the shrill screams on talk radio if 7,000 votes had been mysteriously "found" in Milwaukee County handing victory to a trailing Kloppenburg.

A judge who would not be taking the same position, making the same argument, or rendering the same decision if the circumstances were reversed is not doing justice. Any judge who has strong views on matters of policy should regularly find himself making decisions he profoundly disagrees with because "the law" does not support the conclusion that he would personally find preferable. However, there is little reason to suspect that Prosser ever suffers such inner conflict. A recount is plainly statutorily authorized under these circumstances and given the highly suspicious conduct that led to Prosser's "victory," entirely warranted.

There is no doubt that a recount would be expensive for state and local governments. How much it would cost is unclear, but be wary of any Republican putting a dollar figure on the process; you can trust that Republicans will fabricate an irrationally exorbitant figure in an effort to scare the public.

As much as Republicans today seem to believe otherwise, fiscal concerns are not a basis for disregarding the democratic process. If that was the case, why have elections at all? Why not just have a private polling company (you can bet Rasmussen would be Republicans' first choice) call 400 "likely voters" and ask them who should win an election? But democracy costs money, and a recount is as integral to maintaining faith in the democratic process as is having the polls open on election day.

If Republicans dislike the notion of taxpayer money being used to fund this recount, they have only themselves to blame. If they want someone to pick up the tab so taxpayers are not saddled with it, they need look no further than their own Kathy Nickolaus, Waukesha County's Katherine Harris, whose ineptitude in fulfilling the basic duties of her office have led Wisconsinites across the state to question the integrity of their electoral process.

Ignoring Voters; Insulting Democracy

2011-04-13T12:34:00.002-05:00

Although proclaiming to be doing "the will of the people," Republicans are often criticized for catering to the narrow interests of business owners and corporate executives at the expense of average citizens. Proof of the truth of this criticism is readily apparent with Wisconsin Republicans' decision to overturn Milwaukee's sick leave ordinance. This law requires big businesses in Milwaukee to extend to their workers the basic protection of a few sick days per year. Big businesses, not surprisingly, dislike anything that prevents them from unconscionably exploiting their workers. And so, despite having been overwhelmingly approved by voters through an exercise of Wisconsin's longstanding tradition of direct legislation, Republicans have again decided to spit in the face of voters for the sake of pandering to the business interests that control the party.

Direct legislation arose about a century ago specifically because of the corrupting influence of corporate interests upon elected representatives. Concerned that representatives would cater to the business interests that lavished representatives with generous gifts and favors rather than the individual constituents they were elected to represent, Progressives instituted reforms to permit legislation to be enacted through a direct vote of the people. So even when elected officials ignored the clear voice of the people, citizens were still empowered to see to it that their will was not thwarted. Business interests had a harder time influencing every individual voter (a lot tougher to take every voter out for a round of golf than it is to take out the Republican caucus) and business executives, despite their greater wealth, are entitled to only one vote at the ballot box, if they even lived in the relevant community. Nonetheless, business interests, particularly recently, as a consequence of vastly superior financial resource, have been able to exert considerable influence upon all forms of electoral activity, in large part through false or misleading advertising. And business interests certainly tried hard to defeat Milwaukee sick leave ordinance, making it's overwhelming approval all the more remarkable.

If there was ever a time where direct legislation is necessary, it is in Wisconsin's current political climate. Despite historic protests, immense public outrage, and incredible widespread disapproval, Wisconsin's Republicans have remained intransigent with respect to their extreme ideological agenda. And more than simply ignoring the people, Republicans have now taken the remarkable step of directly overturning a decision of the people. The actions of state Republicans are akin to an elected official refusing to step down after being recalled or a legislative body refusing to seat a duly elected representative. In a democracy, there is no greater insult to voters than overturning a law passed directly by the people. Wisconsinites and Progressives and moderates across the country are so tired of saying it, but Republicans should be ashamed of themselves.

Republicans Value Human Life Half as Much as Democrats

2011-04-13T07:50:00.001-05:00

With the passage of the Republicans' bill explicitly diminishing the value of human life in Wisconsin, it seemed like a good time to re-post this prior note regarding this bill. What's a life worth to the "pro life" party? The answer is half of what it is to a Democrat.

http://xbeyondx.blogspot.com/2011/03/whats-life-worth-to-pro-life-party.html

Collective Bargaining Improves Student Achievement Without Increasing Costs for Taxpayers

2011-04-08T23:17:00.004-05:00

Mandatory collective bargaining for teachers improves student achievement without increasing costs for taxpayers according to a recently published study in the Yale Law Journal. Benjamin A. Lindy reached this conclusion by analyzing the experience of New Mexico where circumstances allowed for a unique opportunity to analyze the impact of collective bargaining independent of other factors.

Analyzing the impact of collective bargaining upon education metrics such as academic achievement and per pupil expenditures is a particularly difficult problem because of the inability to control for the vast number of other variables that impact academic achievement and all other educational data. Because socio-economic data for students and educators as well as educational policies vary widely across states, it is impossible to glean the impact of the single variable of collective bargaining simply by comparing collective bargaining states with non-collective bargaining states. However, the experience of New Mexico created a natural experiment in which the variable of collective bargaining might be analyzed in isolation.

Beginning in 1993, New Mexico required all school districts to collectively bargain with its teachers. But that law expired in 1999 after the state’s Republican governor vetoed the reauthorization of the statute. Therefore, although not going to the extreme level of banning all collective bargaining as Walker’s law would do in Wisconsin, collective bargaining in New Mexico was optional with a district permitted to collectively bargain if it chose to. This optional collective bargaining lasted until 2003 when the mandatory collective bargaining requirement was restored. Mandatory collective bargaining remains the law in New Mexico.

Eliminating collective bargaining had an immediate and remarkable impact upon student achievement. SAT scores fell precipitously, in contravention of national trends, and remained low for the entire period collective bargaining was not required. As soon as collective bargaining was again required, SAT scores immediately rose sharply and stayed high. Using statistical models in an effort to control for certain variables, the author confirmed this relationship, calculating that simply mandating collective bargaining for teachers raised the state average SAT scores about 9 points. The included chart is from Lindy’s piece and plainly depicts the impact of collective bargaining with the first vertical line marking the end of mandatory collective bargaining and the second vertical line marking its restoration.

But because not all students are college-bound, in an effort to analyze the impact of collective bargaining upon lower-performing students, the author attempted to evaluate the impact of mandatory collective bargaining upon graduation rates. Although no relationship was apparent in a review of the raw data, through statistical analysis the author concluded that collective bargaining slightly decreased high school graduation rates. However, Lindy noted that calculating a graduation rate is inexact, and therefore the validity of this conclusion is suspect.

Finally, the author evaluated if collective bargaining resulted in increased costs for the taxpayer in the form of increased per pupil expenditures. In both the raw data and through the statistical analysis, no relationship was found between mandatory collective bargaining and per pupil expenditures, i.e. collective bargaining did not impact per pupil costs.

Crushing public employee unions, especially teachers’ unions, has become a cause célèbre for the extremists who now dominate Republican politics. But unfortunately, like many policies of radical Republicans, these policy choices were based largely upon visceral reactions and ideological rhetoric that is boiled down to convenient talking points.

This study plainly contradicts the core of the Republican argument that destroying the basic right of teachers will boost student achievement and save taxpayers money.

Although Wisconsin’s Republicans seem quite content to live in a wonderland where reality is never allowed to interfere with ideological interests, proof that collective bargaining actually improves student achievement without raising costs for taxpayers, is unlikely to sway the conservative extremists who seem to dominate the state’s lawmaking branches of government. But facts go a long way with the moderate majority.

Wisconsin's Katherine Harris

2011-04-07T19:25:00.002-05:00

24 hours ago, Wisconsin progressives and moderates were feeling reinvigorated and finally having their faith restored that even when politicians are intransigent in the face of overwhelming public outrage, there are still avenues available to effect positive change. Now, in a swift sucker-punch, progressives and moderates are back to their longstanding feelings that no matter what, they will be ignored and the system is rigged against them.

That punch in the face came from Waukesha County Clerk Kathy Nicholaus who, if she is to be believed, lacks the basic common sense to remember to hit "save" on a computer program and thus miraculously "found" 7,000 votes for David Prosser. Massive historic public protests are ignored by politicians with Charlie Sheen-esque delusions and now even voting cannot be trusted because officials will simply find ways to change results they disagree with.

That such a profound irregularity would occur at all is, needless to say, highly suspicious. It should make every single voter wary of the competence of Clerks' abilities to fulfill their basic duty of knowing how to count. In routine elections that are not subjected to this level of scrutiny, how many votes are missed because of plain and simple stupidity of those entrusted with safeguarding the process? This sort of asinine stupidity is inexcusable. But particularly disconcerting is that these votes were "found" in the Republican stronghold of Waukesha County, by a Clerk who is a regular Republican campaign contributor, and these votes benefit the Republican/conservative candidate who had lost the election based upon unofficial numbers.

An elected official who wreaks of incompetence and who is likely to be accused of being willing to go to any length to see to it that the conservative candidate she supports wins a close election--Wisconsin has found its Katherine Harris in Kathy Nicholaus.

Scott Walker's Vision For Milwaukee?

2011-03-23T22:05:00.001-05:00

What does profound mismanagement and neglect of a state's urban center by leaders at all levels look like? What happens when leaders give up upon a city and sever the few remaining threads that were barely holding the community together? What happens when a city's longstanding residents decide that their city is beyond the point of no return and so abandon it in the desperate hope of a brighter future elsewhere? For a governor and a legislature seemingly bent upon looking for every possible way to further weaken Milwaukee, a city that is already teetering, these images are a stark and frightening look into the surreal future awaiting us in Scott Walker's Wisconsin.

http://www.huffingtonpost.com/2011/03/23/detroit-decline_n_813696.html#218521

Steps to a Better Boycott: Narrower and Targeted Boycotts of Walker Contributors

2011-03-15T23:27:00.005-05:00

When elected leaders are deaf to the overwhelming majority of their constituents, the people are left with few options. One option that has come to the fore are boycotts against businesses that contributed to Scott Walker’s campaign. I am a firm supporter of the boycott as a means of fomenting political change. However, the means generally utilized for identifying appropriate targets for boycotts based upon businesses’ support for Scott Walker are misguided and ineffective.

What appears to be the largest Facebook page regarding these boycotts simply identifies businesses where an employee (generally an owner or executive) has made at least one single contribution of $5,000 or more. The most glaring flaw in this method is that it does not account for individuals who made multiple smaller contributions. But additionally, it does not take into account whether a boycott against an identified business is likely to be effective.

So how can we build a better boycott?

(1) Narrow the list of targets.

a. Casting too wide of a net is ineffective because it dilutes public outrage.

b. There are not enough highly dedicated individuals to stand outside every single business where the owners/managers/executives gave large contributions. Coordinating larger demonstrations outside just one or two businesses enables focused public and media attention and thus greater effectiveness.

c. Make sure you are holding businesses responsible only for the decisions of their owners and executives, not low-level employees.

d. Make sure that the targeted business was not simply “covering the bases” and did not also give similar donations to an opponent.

(2) Identify businesses most likely to be impacted by consumer action.

a. Certain businesses do not produce direct consumer products and thus are unlikely to be influenced by individual consumer action. For example, now-Senator Ron Johnson gave $10,000.00 to Scott Walker as CEO of PACUR. But an average consumer is not going to have much involvement in the “Lenticular Print “ or “Medical Packaging “ markets and thus, unless there is a means to organize the purchasers as the businesses that are customers of PACUR, adding PACUR to a boycott list is an empty gesture.

b. Are there alternatives so that consumers will be able to go to a competitor? For example, political action committees representing dentists and realtors made sizable donations but if you have a toothache or need to buy or sell a home, you are likely going to need to do business with a Walker supporter. But if a business is just one that is just one of many players in a highly competitive market, this business is most susceptible to a boycott.

c. Identify businesses based not solely upon the dollar value of the contribution but also take into consideration the impact that a boycott may have upon a business. In this regard, disproportionately large contributions from smaller businesses should be given greater weight than similar contributions from the uber-wealthy.

d. Businesses directly dependent upon the individual decisions of consumers, such as retail stores, gas stations, restaurants, bars, and the like, are the most effective boycott targets.

(3) Have clear demands as to what you hope to achieve from a boycott.

a. Is it merely to draw attention to an issue?

b. Or is a boycott aimed at bringing about a specific action from the targeted business, for example, public opposition to the policies of Scott Walker and a promise not to make any further contribution to Walker or an organization through which money is funneled to him?

Having applied these principles in a review of Walker’s contributor data I have identified three businesses that are, in my view, strong initial targets for an effective boycott effort.

(Note many of these businesses are not included in the Facebook page’s list of businesses because that site looked only for single donations of at least $5,000.00 rather than looking at aggregate contributions and considering the impact a boycott may have upon the business).

(1). Kessler’s Diamond Center: (Locations in Germantown, Greenfield, Brookfield, Appleton, and Madison) Richard Kessler, founder, CEO, and spokesman for Kessler’s Diamond Center made eight separate donations to Walker for a total of $7,000.00. As a retail business, Kessler’s Diamond Center is entirely dependent upon the individual decisions of customers. Customers have many options when it comes to jewelry and diamond purchases and thus it is easy to avoid a retailer like Kessler’s.

(2). Ewald Automotive Group (Dealer of Chrysler, Jeep, Dodge, Ford, Lincoln, Chevrolet, Buick, and Kia, with dealerships in Oconomowoc, Franklin, Hartford, Cudahy; also operator of Mayfair Leasing in Waukesha, Mayfair Rent-a-Car in Waukesha, and Ewald’s Airstream in Hales Corners). Persons associated with the Ewald Automotive Group and having the Ewald surname gave a total of $10,650.00 to Scott Walker. The automotive sales and service business is highly competitive and almost entirely dependent upon individual consumers. Any consumer has multiple alternatives to Ewald (but be aware that many others such as Braeger and obviously Russ Darrow, are not much better).

(3). The Knitting Room: This small retail shop located in Fond Du Lac is exactly what it sounds like—a yarn shop. Not knowing enough about knitting to speak with any authority, it seems hard to believe that a community like Fond Du Lac really has much call for an entire shop devoted to yarn, but apparently so. And it appears to be quite profitable in that one of its principals was able to give $2,500.00 to Walker.

An effective boycott must have concrete reasonable demands, which in this case could include, at a minimum:

(1). Public condemnation of Walker’s assault upon public sector employees and education.

(2). A vow not to support Walker should he appear again on a ballot either through recall or re-election.

Of course, progressive minded consumers should still be mindful of where their money goes. Wisconsin progressives would likely wish to avoid Jockey clothing (its president gave Walker $8,450.00), Johnsonville Sausage ($30,300.00 to Walker from high level company officials), Northwestern Mutual ($30,325 from NML employees including high level executives to Walker, plus $15,000 from NML’s PAC, plus another $7,500 from the CEO’s wife for a total of $52,825.00), and M&I Bank ($48,921.00 to Walker including $10,000.00 from its chairman, $3,500 from its president, $7,250.00 from its Vice President). But these national and international companies are less likely to feel the impact of the direct action of Wisconsin consumers and therefore placing disproportionate focus upon the largest businesses would not be likely to yield positive results.

As a final note, it is quite interesting what interesting nuggets you can uncover digging through contributor data. It appears that I have perhaps uncovered the sources of both Walker’s delusional belief that government workers are paid like Fortune 500 CEOs and his odd penchant for special favorable treatment of firefighters and Milwaukee firefighters in particular. That source--Christopher Mancuso. “Who,” you ask? I don’t know who he is either but according to Walker’s campaign contributor data, Mancuso is a City of Milwaukee firefighter. However, interestingly, the address for his employer is the Milwaukee Police Administration building. But much more interesting is that this Milwaukee firefighter appears to be making quite a good living protecting Milwaukeeans in that he had enough disposable income to make a $3,100.00 contribution to Walker’s campaign. Needless to say but something is not right there.

Beware of Republican Tricks

2011-03-14T20:51:00.001-05:00

If there is one thing that the proceedings regarding the "budget repair" bill has taught Wisconsinites it is beware of Republican tricks. Just because something is said publicly and repeatedly does not mean it's the truth. Throughout this ordeal, it was generally occurred that the Republican talking points were ultimately revealed to be blatant lies.

As time goes on, the actual truth of this "budget repair" bill will begin to come into focus. Because the bill is expansive (138 pages), covers an exceptionally wide variety of areas, and because analysis of the true impact of any bill can be exceptionally difficult (requiring checking hundreds of provisions against current law and then parsing dense legalese) full analysis will take an exceptionally long time.

So today I am simply pointing out a seeming oddity where additional attention might be warranted As is well-known, the bill prohibits any "local governmental unit" from collectively bargaining with its employees, except within narrow parameters.

But the bill also requires a "local governmental unit" to implement a civil service system to provide some very rudimentary protections for workers.

Those provisions might seem simple enough but, of course, I would not be writing about them if that was the truth. Although both provisions use the exact same phrase "local governmental unit" this term is defined differently in each section.

When it comes to taking away workers' rights, not surprisingly, the legislature included what appears to be an exceptionally broad definition of "local governmental unit." The bill defines "local governmental unit as "any city, village, town, county, metropolitan sewerage district, long-term care district, transit authority under s. 59.58 (7) or 66.1039, local cultural arts district under subch. V of ch. 229, or any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state."

But when it comes to expanding the rights of workers by providing basic civil service protections to provide some bare minimum of protection to replace the loss of collective bargaining rights, the bill uses an entirely separate and seemingly much narrower definition of "local governmental unit."

Instead of simply relying upon the definition of "local governmental unit" drafted exclusively for taking away the collective bargaining rights of workers, for the provision extending those minimal civil service protections to workers the legislature referred to an obscure statutory provision regarding local government purchasing which defines "local governmental unit" as "a political subdivision of this state, a special purpose district in this state, an agency or corporation of a political subdivision or special purpose district, or a combination or subunit of any of the foregoing."

What is the significance of these distinctions? Quite frankly, I do not know. But surely the utilization of different definitions was not done without a reason; the question is, what was that reason?

Proponents of this bill frequently reported that all workers who lose collective bargaining rights will enjoy expanded civil service protections. But looking at the varied definitions, it appears that this might be yet another Republican lie. Instead, it appears that this bill strips collective bargaining rights from the widest swath of workers possible while extends basic civil service protections to a narrower group.

Because this bill has perhaps the greatest impact upon teachers, seeing where teachers fall into each of these definitions may be helpful.

Looking at the first definition, teachers are clearly not employees of any "any city, village, town, county, metropolitan sewerage district, long-term care district, transit authority under s. 59.58 (7) or 66.1039, local cultural arts district."

Teachers might work for a school district that shares the same name as the municipality in which it is based, but a school district is a legally distinct unit of government. So that leaves only the seeming catch-all provisions of "any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state."

Because it is clear that Republicans sought to include public school teachers in their attack upon workers' rights, it would likely be safe to assume that teachers are included in this expansive portion of the definition.

As for the second definition, it contains an apparently similar but notably varied catch-all provision regarding "a political subdivision of this state, a special purpose district in this state, an agency or corporation of a political subdivision or special purpose district, or a combination or subunit of any of the foregoing."

To make matters even more complicated, separate statutory provisions affected by this bill discuss a "municipal employer."

Municipal employer "means any city, county, village, town, metropolitan sewerage district, school district, long-term care district, transit authority under s. 59.58 (7) or 66.1039, local cultural arts district created under subch. V of ch. 229, or any other political subdivision of the state, or instrumentality of one or more political subdivisions of the state, that engages the services of an employee and includes any person acting on behalf of a municipal employer within the scope of the person's authority, express or implied."

So why all the different definitions for what ultimately appear to be the same thing? Although it is exceptionally difficult to undertake a comprehensive analysis of what impact this wordplay will have, if there is one thing that the past month has demonstrated to Wisconsinites it is that you can trust is that the end result will be screwing over as many hard-working government employees as possible.

"[W]here free unions and collective bargaining are forbidden, freedom is lost." - Ronald Reagan

2011-03-11T14:47:00.013-06:00

Just to give you an idea of how extreme Scott Walker and his lock-step Republican cronies are, even the icon Republicans turn to as the model of union hatred regarded collective bargaining to be an essential right. But this fact seems to be one that Republicans selectively forget, along with the fact that Reagan signed the largest peace-time tax increase in American history, exploded the budget deficit and the national debt, and was also the only head of a national union ever to be elected President.

Why Aren't They Still Fighting?

2011-03-11T11:17:00.006-06:00

Why are Democrats acting as if the fight to protect workers’ rights is over? It’s true that a bill has passed stripping workers of their basic right to negotiate the conditions of their employment. But the budget is not repaired; Walker still needs the Democrats to pass the fiscal aspects of his “budget repair” bill.

So why are Democrats not holding out? Why are Democrats not demanding the repeal or additional modification of the recently passed restrictions on collective bargaining as a condition of their return to Wisconsin to pass the fiscal aspects of the bill? They might have lost this battle but they still retain all the power they had in the past.

Normally I criticize bald speculation but something does not smell right here. It is very interesting that the first Democratic Senator to return to Wisconsin was Jim Holperin, who was readily identifiable as the Democratic most vulnerable to being unseated as a result of right-wing backlash.

Was the Republicans' rushed passage of this bill a product of behind-the-scenes dealing between Holperin and Republicans? Was Holperin looking for a way out and therefore this rushed passage was orchestrated as a means to provide him cover to come home by pretending that what he was fighting for was done and settled? In exchange for Republicans taking the heat with an underhanded and rushed passage of this bill, did Holperin agree to return to Wisconsin to provide Republicans the quorum necessary to pass the fiscal aspects of the bill (as well as whatever other craziness Republicans might rush through)?

I commend the Democrats for taking the incredibly bold step necessary to trigger national attention upon Wisconsin and to delay passage long enough to mobilize the opposition and to allow the public to see through the lies that this was not about demanding fiscal concessions from government workers but rather wholly about an ideological assault upon government workers.

I also do not pretend that the Democrats’ actions were legal. They clearly were not. But they were nonetheless appropriate and courageous acts akin to civil disobedience. There is no doubt that likewise lunch counter sit-ins to protest the Jim Crow South were illegal; in exceptionally rare cases defense of the greater good is inconsistent with the law.

And finally, I acknowledge that these 14 individuals made immense sacrifices for the sake of working families across the state. Leaving their homes and families behind and being subject to such immense scrutiny was surely not easy. And so while I acknowledge the bravery and sacrifice of these 14 individuals, if they wanted to continue to fight, they could. The question I hope we soon learn an answer to is, Why aren’t they still fighting?

Milwaukee Must Be Wondering "Why's Everybody Always Pickin' On Me?"

2011-03-10T18:47:00.001-06:00

There are simply too many examples of Republican hypocrisy, stupidity, and extremism right now to pay appropriate attention to every single one. And perhaps that is the party's strategy; ram through every crazy idea anyone with an (R) after their name ever had in one shot right at the beginning of the term and hope that all the immense rage this extremism inspires will fade by election time.

But rather than joining the chorus decrying the unprecedented actions of the legislature with respect to undoing more than half a century of workers' rights by using what even Republicans now admit was a lie that it was an essential fiscal matter, the focus here is on another radical Republican proposal.

Wisconsin's answer to Michelle Bachman, Wauwatosa Republican Leah Vukmir, has introduced legislation overturning Milwaukee's longstanding residency requirement for police and firefighters.

This dramatic assault upon a local government's ability to manage its own affairs is not only yet another ironic abandonment of Republican principles, but absolutely unprecedented. The consequences of this decision upon Milwaukee will perhaps be the most dramatic harm inflicted by Republicans' two months of radicalism.

It is well-known that certain neighborhoods are dominated by police officers, firefighters, and teachers in the Milwaukee Public Schools (whose residency requirement is lifted in the budget bill). These neighborhoods are generally regarded as the most livable neighborhoods in the City precisely because of the stable foundation offered by these public servants. The presence of these upstanding individuals within the City also has a more direct impact upon the quality of life; there never seems to be any shortage of off-duty police officers and firefighters heroically intervening in incidents in their neighborhoods. These are just a very short list of recent such incidents that were significant enough to warrant press coverage.

Off-duty police officer shoots robbery suspect

Felon charged in shooting at off-duty officer

Off-duty sergeant chases down robbery suspect

Off duty Milwaukee officer helps catch burglar in the act

Off-duty firefighters win national award for saving boy

Bay View police officer carjacked - Off-duty officer shot, returned fire in North Side crime

There are countless more routine matters where off-duty officers stop neighborhood vandals, intervene in fights or domestic disturbances, or provide first aid on the scene of accidents, not to mention all the incidents where neighborhood punks forgo an offense knowing that a cop lives across the street.

The stabilizing influence of these city workers make the neighborhoods attractive to others and thus the City enjoys the positive results of an improved tax base and stable neighborhoods through the ripple effect of its residency rule.

To be sure, the residency rule has not been popular among City workers. But it's not like it was a surprise for the workers. It was part of the calculated bargain these workers entered into when they accepted their jobs. Although the City surely loses qualified candidates who do not wish to agree to the residency restriction, the City has made the determination that overall, the residency rule is beneficial to the City. This is a personnel management decision that any municipality must be trusted to make without interference from state legislators who seem bent upon searching out any possible way to further damage the largest urban area and the greatest Democrat stronghold in the state.

Senator Vukmir contended that any residency rule is an affront to personal freedom to live where one wants. But interestingly, Vukmir makes no effort to change many other similar residency rules. Any municipality other than Milwaukee remains free to impose whatever residency rules it wants.

While not having strict residency limits based upon municipal boundaries, it is extremely common for police and fire departments have requirements that their employees live within a certain radius (for example, 15 miles like in this current job posting for a police dispatcher in Greenfield) of their duty station to ensure the ability to promptly respond. This legislation would not affect those restrictions. More than just extending a fixed radius like other municipalities, Vukmir's bill would allow Milwaukee police officers and firefighters to live in any county adjoining Milwaukee County. Therefore, a Milwaukee police officer assigned to District 7 could live about 60 miles away, more than an hour's drive, in Burlington, thereby jeopardizing Milwaukee's ability to ensure that sufficient officers are able to quickly respond in case of an emergency (much less make it to work at all in the event of severe weather such as snow storms).

So why has Milwaukee's longstanding residency rule become an issue for Republican state legislators who don't even represent Milwaukee? You can be sure that this is not simply a matter of suddenly deciding that deciding where to live is a matter of essential and fundamental personal freedom. Otherwise, the legislature would be banning all such residency requirements, not just those affecting Milwaukee police officers, firefighters, and teachers. Residency rules would still apply for all other City of Milwaukee employees as well as employees of all other local governments including Milwaukee County which has a similar residency rule for many of its employees.

Perhaps the argument could be made that this is motivated by suburban legislators seeking to poach the most desirable residents from the City of Milwaukee and further inflate suburban real estate values by creating higher demand for the homes within their communities (never mind the resulting collapse of property values in Milwaukee). But as with anything, there is likely a simpler explanation—follow the money.

Perhaps the biggest opponents of the residency rule are Milwaukee police officers and they have created their own political action committee ("PAC") to communicate its views. Since the beginning of 2009, the Milwaukee Police Association's Political Action Committee has made substantial donations to candidates, an overwhelming proportion of which were Republicans and were not from the City of Milwaukee. Not surprisingly, in the most recent election, it gave sizable donations to Governor Walker, Rebecca Kleefisch (whose campaign committee was one of the biggest contributors to Walker's campaign), and, as you might expect, three separate contributions to Leah Vukmir.

This bill is likely nothing more than Republicans paying back their contributors. And of course, the fact that this will devastate Wisconsin's Democratic bastion and make the job of Walker's gubernatorial-campaign opponent exponentially more difficult is simply icing on the cake.

What's a Life Worth to the "Pro-Life" Party?

2011-03-09T14:27:00.001-06:00

What’s a life worth to a Republican? In the past, it might have been an interesting question for rhetorical debate among partisans but Wisconsin Republicans have now provided the answer. The party that uses “pro-life” as a campaign slogan places a value on human life half that of Democrats.

Last year, Wisconsin finally joined nearly every single other state (New Hampshire is the only exception) and finally made auto insurance mandatory. In doing so, the legislature set certain minimums for coverage (there were prior minimums if insurance was purchased and minimums for “financial responsibility” but those nuances of Wisconsin’s former law are not essential to the present issue). At a minimum, a driver is now required to have insurance to cover up to $50,000 for the death or serious injury of one person, with a cap of $100,000 per accident if multiple people are injured or killed, and at least $15,000 for property damage. Republicans seek to lower the minimums to $25,000 for the death or serious injury of one person, with a cap of $50,000 per accident if multiple people are injured or killed, and only $10,000 for property damage. The reason offered by Republicans is to cut insurance rates.

Although there is debate as to whether a cut in minimums would actually result in any savings for any driver, for present purposes, I will skip over this debate and presume that a person maintaining only the statutorily mandated minimums will realize some savings under the Republican plan.

But ensuring the lowest cost to drivers is not the purpose of mandatory insurance laws and minimum coverage requirements. If that was the case, then clearly the cheapest option for consumers would be to simply forego any insurance coverage. But Republicans are not proposing this extreme step and for good reason; minimum insurance requirements are not designed primarily to protect the insured but rather are designed to protect the general public who may be injured by the negligent conduct of one of these insured drivers.

If a person is injured through the fault of a driver, mandatory and minimum insurance laws are designed to ensure that the innocent victim will not be left without compensation for his injuries. $25,000 might be sufficient to cover a week off work and a few trips to a chiropractor, but if injuries are anything but minor, $25,000 would hardly put a dent in a bill for surgery and a few days in the hospital. When a negligent driver lacks sufficient insurance, the innocent driver is on the hook for his medical bills and in many instances, ultimately the taxpayer.

With respect to compensating a family for the death of a loved one is how the Republican proposal is so plainly disturbing. The notion that any politician, much less an entire political party, would so proudly proclaim that any human life is worth no more than $25,000 should be profoundly troubling to every single person in this state. Just to put the value Republicans are placing upon human life in some context, cattle have been sold for $59,000 in Wisconsin.

For those who don’t want to get into the “what’s a human life worth” debate, then let’s instead focus upon something much more tangible and real: what’s a car worth? This bill calls for a mere $10,000 for property damage. You can almost sneeze on a car the wrong way and do a few thousands dollars in body damage to a car. With a mere $10,000, the average car owner who has his car totaled by a negligent driver will be forced to turn to his insurance (provided he has comprehensive coverage) and pay his deductible and higher premium costs simply because the negligent driver had woefully inadequate insurance. And if the innocent driver lacks comprehensive coverage for his own car, the shortage is going to come out of his own pocket.

It is particularly ironic that Republicans have taken up this banner because the greatest financial impact of this bill will be felt in the form of higher premiums paid by traditional Republicans, e.g. those with financial means and assets sufficient to warrant obtaining insurance coverage substantially beyond the minimums called for in this bill.

A family with a house in the suburbs with some equity and a bit of money in savings for the kids’ college would be well advised to have coverage at least ten-times greater than the minimums called for in this bill and so will have coverage providing for $250,000 for the death or serious injury of one person, with a cap of $500,000 per accident if multiple people are injured or killed, and at least $200,000 for property damage.

This policy also provides un- and under-insured coverage at the same limits. This coverage protects the insured against other drivers who lack sufficient coverage to cover any damage or injuries he causes to the insured. Under this coverage, a responsible driver is buying insurance against the irresponsibility of others. If it becomes more likely that another driver will not have coverage sufficient cover the damage he causes, as is likely to happen when policy minimums are lowered, the un- and under-insured coverage becomes more expensive for responsible for drivers. Therefore, the family in the suburbs ends up paying more for its insurance.

Get Used to Hearing the Names Kapanke, Darling, and Hopper

2011-03-08T06:57:00.004-06:00

Craig Gilbert’s analysis of which state senators are vulnerable to recall in light of their position on Governor Walker’s “budget repair” bill is an interesting starting point to consider the viability of any potential recall efforts. One of the most interesting facts it reveals is that Wisconsin, overall, is a politically moderate state. Of the 16 senators who could face recall at this time, 10 of them represent districts that voted for Obama in 2008 but voted for Walker in 2010 (2^nd, 8^th, 10^th, 12^th, 14^th, 18^th, 22^nd, 24^th, 30^th, and 32^nd Senate Districts). Thus, representatives of these “purple” districts are most likely to be the focus of recall efforts from both sides. Of the purple districts, 6 are represented by Republicans and 4 by Democrats.

There are two names that will likely be quickly brought out to the forefront of this recall discussion: Democrat Jim Holperin and Republican Dan Kapanke.

Jim Holperin is essentially the only vulnerable Democratic senator. He narrowly won election in 2008 with 51.2% of the vote, squeaking out a majority perhaps because at least a few voters mistakenly believed that they were voting for the affable prankster Jim Halpert from the NBC show “The Office.” Obama won his district with 52.7% of the vote in 2008 but Walker won in 2010 with 57.4%, suggesting that the 12^th District ultimately leans Republican. Democratic senators Julie Lassa, Robert Wirch, and Dave Hansen are also theoretically vulnerable as Democratic representatives of purple districts.

But because moderates tend to oppose Walker’s extremism, Republicans are likely to face much stronger and more likely successful recall efforts.

The most vulnerable Republican is clearly the 32^nd District’s Dan Kapanke. Obama garnered a remarkable nearly 61% of the vote and although Walker technically won the district in 2010, he did so without gaining a majority of votes, thus suggesting that this district, which includes La Crosse, ultimately Democratic. In addition to the fact that he won election in 2008 by earning only 51.4% of the vote, Kapanke is particularly vulnerable in the light of the fact that his term of office was marked by scandal and the inappropriate use of taxpayer dollars when Kapanke’s failure to comply with state open records laws led to taxpayers being on the hook for more than $38,000.00 in legal fees.

The following Republican state senators are also vulnerable, with the most vulnerable senators (based upon margin of victory of Walker vis a vis Obama) listed at the top.

District’s Senator	Walker	Obama
Alberta Darling (R)	54.2%	51.4%
Robert Cowles (R)	57.4%	52.4%
Luther Olsen (R)	57.3%	51.3%
Randy Hopper (R)	57.2%	51.3%
Sheila Harsdorf (R)	58.2%	50.1%

So what does this mean? Democrats need three Republicans to break Walker’s bullying stranglehold and oppose this bill. Democrats already have one, Dale Shultz, the Richland Center Republican who has opposed the bill. Assuming that no other Republican has the courage to break with the extreme political ideology being advocated by Walker and take the steps necessary to save jobs and protect workers’ right to negotiate, then the recall is the only option available.

If an organized and reasonably funded recall effort can be mobilized against Dan Kapanke and a competent opponent can be put up against him, then he’s as good as gone.

That means Democrats need one more. That most likely target is Alberta Darling who is certainly not a darling of the North Shore communities she represents. These wealthy voters tend to support Republicans to the extent the party shares their pro-business bent, but these voters also place a high value upon education. The catastrophic cuts in education that are contained in Walker’s budget will not go over well in this district and thus, given that she won her seat with only 50.5% of the vote (a margin of only 1,007 votes out of nearly 100,000 cast), it is also fairly safe to suspect that if recall organizers can gather the signatures needed, she would not survive a recall election against a competent challenger and this purple district would again be represented by a Democrat.

Kapanke and Darling are the only two senators Democrats would need to unseat to put an end to Walker’s extremism and the numbers certainly suggest that it is a doable feat.

The insurance policy for the Democrats would be Randy Hopper, the Fond Du Lac Republican who won his purple district in 2008 by only 184 votes out of nearly 84,000 votes cast.

But unseating Republicans through recall elections can be particularly difficult. Because the number of signatures needed to trigger a recall election is 25% of the votes cast for governor in the most-recent election, in Republican districts where voter turnout tends to be higher, it is necessary to collect many more signatures. For example, among Democratic senators who are eligible for recall, the average number of signatures needed is 15,588 whereas for Republicans, the average number of signatures needed is 17,334. With a requirement that organizers gather 20,343 signatures in 60 days to trigger a recall against Alberta Darling (the third highest out of any senator), this high signature threshold is perhaps Alberta Darling’s best hope of keeping her job.

Because Walker is ignoring his obligation to represent the entire state and is deaf to anyone who does not share his extreme views, it is now up to voters in only three districts to see to it that Wisconsin’s long-standing history of respect for workers and valuing education is not given a 10-count by one solid swift punch in face by the most extreme politician this state has ever seen and his cowardly cronies. But before the people of the 8^th, 18^th and 32^nd can defend the basic rights of the middle class as voters, they must first seek to defend that right as signers. They must actively seek out a recall petition and sign their name to it. In the face of hardened ideologues deaf to reason or compromise, or even the desperate pleas of struggling families, citizens of these three districts have the solemn responsibility to standing up for the rest of this state.