Partisanship and Petty Politics in Wisconsin

The power grab by Wisconsin Republicans to limit the incoming authority of the Democratic
Attorney General and Governor is about pettiness and being a sore loser.  But it is not the only instance of such pettiness–Michigan too is experiencing this, as did North Carolina a few years ago when the Democratic governor ousted the Republican.   Pettiness seems to be de rigueur, inspired by Donald Trump’s brand of politics, violating two norms, one informal, the other constitutional.
Pettiness and being a sore loser is not a unique feature of contemporary American politics–it tradition goes back perhaps as early as 1800.  Then, when Thomas Jefferson and his fellow Democrats took control of the White House and Congress and ousted John Adams and the Federalists, the latter retaliated with a series of late minute acts that included judgeships to stack the  courts.  This resulted in the appointment by John Adams of a judicial commission to William Marbury, who, while confirmed by the Senate, did not have his judgeship delivered in term and which Thomas Jefferson refused to honor.  The dispute resulted in the arguably the most important and famous Supreme Court case in American history–Marbury v. Madison–which established the principles of judicial review, constitutional supremacy, and separation of powers as fundamental values in American law and politics.
The incidents surrounding Marbury are twofold important.  First, the 1800 elections were arguably the most significant in American history, establishing a pattern of peaceful transition of government power from one party to another.  A hallmark of democracy is the acknowledgment by one party that it has lost and its willingness to give up the reigns of power peacefully to the opposition.  Yes, in 1800 the Federalists were sore losers, but power transferred without gun shots and the election established the unwritten norm of how parties ought to observe one another–not as enemies or criminals to be locked up–but as rivals with whom you disagree but nonetheless will not seek to illegitimately undermine.
Throughout American history losers may grumble that they have lost an election but they have not generally sought to change the rules of the game to undermine the incoming winners.  Moreover, they have generally not   sought to entrench themselves in power, either directly by trying to undermine the election results directly or indirectly. Unfortunately that has changed.  Mitch McConnell’s announcement after Obama’s victory in 2008 to do everything he could to oppose him is an example of what Jacob Hacker and Paul Pierson describe in their Winner-Take-All-Politics.  Politics has become a zero sum game–I win or you win’‘and not how to figure out how to create a “win-win” game that is the product of compromise.  Winner-take-all-politics is a product of the intense polarization and partisanship that has emerged in American politics, personified most perfectly in Donald Trump’s intense tribalism of divide and conquer politics, best captured in the “Lock her up” mantra against Hillary Clinton.  Largely Trump’s strategy was rejected in 2018, but many who thrived on it, as in Wisconsin, are unable to accept losing, view the opposition as evil.
Such manicheism is not confined to Republicans.  There are many Democrats similarly who view Republicans and Trump as mortal enemies.  Many see themselves as part of a resistance, almost romantically comparing themselves to freedom fighters in France during WW II taking on the Nazis.  Yes, the special prosecutor may find laws broken and persons worthy to be indicted, but one might take a page from Abraham Lincoln’s Second Inaugural speech asking for “ malice toward none; with charity for all.”
But if Wisconsin represents a breaking of the unwritten tradition of respecting election results and seeking reconciliation that the incidents surrounding the 1800 taught, it also violates another–the concepts of constitutionalism and separation of powers.  What the Wisconsin legislature is doing  arguably violates that state’s constitution.
The concept of separation of powers is located with the three vesting clauses of the Wisconsin Constitution, specifically  Art. 4, § 1; Art. 5, § 1; Art. 7, § 2.     When it comes to the power of the governor, the state Constitution declares that “The executive power shall be vested in a governor.”  Art. 5, § 1 (Layton School of Art & Design v. WERC, 82 Wis.2d 324, 347, 262 N.W.2d 218, 229 (1978); State v. Washington, 83 Wis.2d 808, 816, 266 N.W.2d 597, 601 (1978)). According to the Wisconsin Supreme Court: “No branch of our government is subordinate to the others, no branch is to seize control over the others except as provided by the constitution and no branch may exercise power committed by the constitution to another” (State v. Holmes, 106 Wis.2d 31, 42, 315 N.W.2d 703, 709 (1982)).
  The test to determine whether a violation of separation of powers has occurred is whether actions by one branch result in the usurpation of powers of another branch (J.F. Ahern Co. v. Building Comm'n, 114 Wis.2d 69, 104, 336 N.W.2d 679, 695 (Ct.App.1983)).  A departure from a strict separation of powers is permitted so long  as the zone of shared powers of  one branch does not unduly burden or substantially interfere with another branch (In re E.B., 111 Wis.2d 175, 184, 330 N.W.2d 584, 589 (1983)).
Given this language by the Wisconsin courts, the question seems to be a matter of degree–how far can one branch go before it encroaches on the core functions of another branch?  Arguably, the Wisconsin legislature appears to be at this point with it efforts to limit the governor.  The question is what are the core executive functions vested in the governor and has the legislature  unduly burdened them?  Arguably, preventing the governor from withdrawing from law suits or changing other policies directly limit core functions, questioning the constitutionality of this move.
But what about the attorney general?  Article 5, § 3 declare the,” duties and compensation of the treasurer and attorney general shall be prescribed by law.”  This constitutional provision appears to give the legislature more authority to act to augment the attorney general’s authority than that of the governor.
So what are the remedies?  A federal law suit will not work because this is a matter of state and not federal constitutional law and the federal courts will generally not render a decision on state constitutions and what they mean.  Thus, the suit must be in state court. However, according to a Wisconsin Court of Appeals decision State v. City of Oak Creek, 223 Wis. 2d 219, 588 N.W.2d 380 (Ct. App. 1998), the attorney general does not have authority to challenge the constitutionality of statutes.  This decision would appear to foreclose a lawsuit, however there are reasons to think this decision is wrong and could be reversed by the Wisconsin Supreme Court.  But even if correct, the governor could hire a private attorney to bring suit, but given the current partisan line up on the Wisconsin Supreme Court,  Evers may not win were the issue to likely go there for resolution.  The legal option may be foreclosed, at least in the short term.
Instead, Evers and the Democrats option may be legislative next year, threatening to veto provisions that Republicans want if they do not change the law.  Additionally, while unsuccessful  in the past, threats of recall are possible, and, of course, with 2020 and then redistricting after that, the Democrats may have to rely on the electoral solutions to address the petty turn of sore losers in Wisconsin.

The Second Republican Debate: Truth and Democracy Lost

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the states of facts and evidence.”
—John Adams, 1770

‘Facts are stupid things – stubborn things, should I say.”
—Ronald Reagan

“Listen, when you make comments that fly in the face of what 98 out of 100 climate scientists have said, when you call into question the science of evolution, all I’m saying is that, in order for the Republican Party to win, we can’t run from science”
—John Huntsmann

"Denial ain't just a river in Egypt."
—Mark Twain

By most accounts Carly Fiorina won the second presidential debate while Scott Walker, Rand Paul, Mike Huckabee clearly lost.  Others had mixed performances at best.  But the real losers were truth and American democracy.  Across the board the Republican candidates lied, fabricated, or spewed out stereotypes in ways that reinforced the prejudices of the voters.
The distortions were on different levels.  All of them exaggerated their resumes.  Rubio again told the story of his grandfather fleeing Castro–even though he left well before he came to power. Trump describes himself as a self-made billionaire (even though he inherited his start in life from his multi-millionaire father) and denies his four bankruptcies.  Fiorina is in denial about her horrible business record at Lucent and HP, and Scott Walter and Chris Christie simply inflate what they have accomplished as governors of Wisconsin and New Jersey (and no Christie was not named a federal prosecutor on September 10, 2001).   Resume fraud should not be a surprise among politicians, such lying is unfortunately common in the general popular.
Moreover, there are lies or distortions that are not so much based on a contravening of facts as being groundless or highly suspect.  Bush saying his brother kept us safe–safe after the largest terrorist attack on American soil since Pearl Harbor?  And then there was the general tone of the debate–long on assertions but shy in terms of actual documentation about how dangerous the Iran nuclear deal is or what Obama did or did not do as president.
But there are deeper lies.  Lies about public policy, about factual states of affairs in the world which are just not true.  I have written about many of them in American Politics in the Age of Ignorance.  American politics is dominated by political myths and failed public policies: These are ideas or policies of which we have overwhelming evidence of their failure or falsehood but which nonetheless are constantly repeated and fail.  Perhaps the voters can be blamed for their ignorance, but it is deplorable that elected officials and policy makers drool out and constantly return to these myths, pandering to the prejudice and ignorance of, in this case, the Republican voter.
Consider a second level of lies.  Fiorina lied about the Planned Parenthood video.  First, the videos have been proven to be doctored and several state investigations have validated that Planned Parenthood is not selling baby parts.  She also lied about claiming that one fetus had a beating heart as it brain was ready to be harvested.  Rubio lied in his assertion that North Korea had a nuclear missile that it could launch to hit the US.  It could not even hit South Korea on a good day.  Cruz lied in many ways about the Iran nuclear agreement.  There are no sites off limits to inspectors.  Huckabee lied when he said Hilary Clinton is being investigated by the FBI for destroying government files.
But the deepest lies are policy based, those where the evidence and data is overwhelming.  The biggest lie again was the vaccination-autism connection.  The original study asserting this claim has been widely and repeatedly refuted yet Trump trotted it out again.  Even worse, Ben Carson–a medical doctor–failed to clearly challenge Trump on this.  Ditto goes to the other doctor Paul too for failing to challenge Trump.
Then there is immigration.  Trump throws out a statistic that says illegal immigration costs the US $200 billion per year.  There is no verification or support for that figure and it also fails to account for how much more money undocumented aliens put back into the economy.  As I point out in my book and as overwhelming studies show, immigrants have lower crime rates than the general  population and put more into the economy than they take out.    Rubio’s claim about 40% of those here illegally are because of overstaying visas is unproven, and contrary to what all the non-lawyers  said, the Fourteenth Amendment’s granting of citizenship to all who are born here is well-established  constitutional law and the US is not alone in granting birth-right citizenship.  And by the way, there is little evidence that such birthright citizenship is the incentive for those emigrating from Mexico to the US.
While in this debate no one outright denied global warming, when the topic came up non candidate was willing to acknowledge it was occurring, that it was a problem, or that they should do anything to address it, even just in case it was happening.
But one truth was revealed in the exchange between Trump and Bush over the former’s denial that her tried to get a casino in Florida.  Or consider Trump here and in his assertions about being too rich to be bought or previously asserting giving money to Clinton and making her feel obliged to attend his wedding, or listen to Christie’s rants on teacher unions. There is a consensus  that money and special interests rule America.  But instead of proposing to do something about it the Republican field simply accepts it as given.
The truth that emerged from the second debate is that truth and democracy lost.  We saw candidates simply lie about themselves or the state of the world.  We saw them accept as given that the democratic process is broken.  And we saw them repeat their lies to an American public on yet another media event that was less news than entertainment.  Real leadership is about telling the truth, not pandering to ignorance and prejudice.  It is looking reality in the eye and leading based on what the world is like and not on what we hope it would be.  On this score the 11 candidates in the main  GOP debate failed on Wednesday.

The twisted metamorphosis of Scott Walker’s Wisconsin: How a once-liberal state became a political battlefield

This week's blog originally appeared in Salon on April 9, 2015.  Here is the link to that piece.

Government by Ballot Will Minnesota Learn from Wisconsin and California?

This piece originally appeared last week in Politics in Minnesota.

As Wisconsin goes, so goes Minnesota?  Or perhaps is it California?  The choice of Minnesota’s future and the fate of its two constitutional amendments this fall might lie in the lessons one learns from these two states when it comes to direct democracy and citizen’s initiatives.  But beyond whatever lessons Wisconsin and California offer, there are reasons to question the wisdom of three hallmark reforms of the Progressive Era.

            Wisconsin is a state of political contradictions.  In 1854 the Republican Party was founded in Ripon.  Wisconsin is also the home of Robert “Fighting Bob” Lafollette and the Progressive Party.  The state has produced senators Joe McCarthy and Gaylord Nelson, and governors Patrick Lucey and most recently Scott Walker.  It is a state once at the forefront of union movements and most recently retrenching on these rights.  But it is also the state that gave birth to a movement that eventually trumpeted initiative, referendum, and recall as tools of reform. Yet Wisconsin may also be the state the spells the end of these three reforms.

            Yes the Democrats and labor failed in their efforts to recall Governor Walker.  But the failure was perhaps not for reasons thought.  Exit poll in the June 5, election indicated that 60% of the voters did not support using recall for the purposes of ousting someone because of their political views.  Recall is for malfeasance or misfeasance–doing something illegal–and not to be used lightly to remove people you simply do not like or with whom you disagree.  The failure of the Walker effort in Wisconsin has sparked talk of tightening and reforming the state’s recall process, perhaps requiring grounds to remove someone from office.

            Now consider California–home base to government by ballot measures.  It is the state that recalled Governor Gray Davis in 2003 and replaced him with Arnold Schwarzenegger. They literally pass scores of initiatives, from Proposition 13 in 1978 that froze property taxes and has nearly bankrupted the state, to Proposition187 in 1994 that denied public services to immigrants, to most recently Prop 8 –The California Marriage Protection Act–banning same-sex marriage in the state.  Government by ballot initiative has practically destroyed the state, turning it from a leader in so many areas such as education and environmentalism to one where California is practically ungovernable.

            Will Minnesota learn from experiences of Wisconsin and reject the marriage amendment this November or will it follow the direction of California and use constitutional politics to bypass the normal legislative route to enact legislation?   While opponents of both of these measures have emphasized equality, fairness, and cost as reasons to oppose both, perhaps they should also settle on the arguments from Wisconsin suggesting that the Minnesota Constitution is not the place for legislation such a gay marriage bans and voter ID, or that this is the road of turning the North Star State into California.  Making a vote on these two amendments de facto a referendum on constitutional politics is a strategy opponents should not foreclose.

            But beyond whatever happens in Minnesota this fall, the lessons of Wisconsin and California bring into question the wisdom of initiative, referendum, and recall as tools of democracy.  Once heralded by Progressives as measures to break special interest and entrenched legislative politics by bringing democracy to the people, one can really question the wisdom of these reforms.  There are several problems with these tools.

            Money Spent for Initiatives and Referenda cannot be limited.  In its 1978 decision First National Bank v. Bellotti the United State Supreme Court declared that money on ballot initiatives was core political speech and that efforts to place limits on the amount of money spent or contributed for these purposes was unconstitutional.  More importantly, the Court stated in Bellotti that limits on corporate spending violated the First Amendment, with that message reaffirmed and extended in the 2010 Citizens United decision.

            The importance of Bellotti and Citizens United for Minnesota are twofold.  First, were initiative and referendum enacted, the state could not limit the amount of money spent by any party.  Second, while Minnesota has had a ban on corporate political spending dating back over 80 years, that ban could not be applied to ballot initiatives.  Minnesota is already witnesses this flood of money as it applies to the marriage amendment. Hence, adoption of initiative and referendum would open an even larger hole in out existing campaign finance laws, permitting corporations and any other party to spend unlimited amounts of money to influence the outcome.

            Money Spent on Initiative and Referenda Circumvent Populism.  In perhaps the best study to date on initiative and referenda, Thomas Cronin indicates in his book Direct Democracy that money has a decisive influence on the outcome of ballot measures.  For example, he notes that corporate-backed sponsors win 80% of the ballot initiatives and that when big money opposes a poorly funded ballot measure, “the evidence suggests that the wealthier side has about a 75 percent or better chance of defeating it.” In addition, evidence demonstrates strong correlations between the amount of money spent and the number of votes cast and that while money cannot guarantee victory, the amount of money spent is decisive in defeating a ballot proposition.

            Overall, the evidence suggests that a popular ballot measure is more often than not defeat by corporate and big money and that corporate and special interest money and not the will of the people is what generally prevails in initiative and referendum decisions. Elizabeth Gerber’s book The Populist Paradox sees money as defeating but not passing ballot measures.

            Big Money Distorts Public Deliberation.  What big money buys in debates on ballot measures is media exposure.  According to several studies, media exposure is the single most important factor influencing and swaying voter decisions.  Given the cost of the media, for the most part, the public will be asked to make critical public policy decisions based upon 15 second sound bites financed by interests that have the most money to spend on the media.  Clearly our constitutional framers the original supporters of initiative and referendum did not envision policy making premised upon sound bites and the cash nexus yet the evidence suggests in California and other states that this is exactly what has happened.

            Initiative and Referendum has Little Impact on Voter Turnout.  Advocates of initiative and referendum claim that letting the voters decide increases turnout.  In some cases yes it does, but as a rule it does not. When appropriate variables are held constant, there is little difference in voter turnout in states that have initiative and referendum versus those that do not.  In addition, in some states, such as California, the presence of often 10, 20, or more initiatives on the ballot has lead to voter burnout where citizens, unable to digest the information necessary to make intelligent choices on all the ballot measures, have opted not to vote on them.

            Initiative and Referendum often  hurt Minority Rights.  Thomas Cronin notes in Direct Democracy that minority rights are often targets of initiatives and referenda.  While it is no doubt the case that some ballot measures have supported minority rights, the truth is that more often than not ballot measures have become another measures for special interest groups to push their agenda, often at the expense of individual rights.  It is unlikely that debates on the rights of unpopular or minority groups or other politically salient issues can be adequately undertaken in a media campaign where dollars buy sound bites.  Deliberation of public policy requires more than that.  In sum, democracy and populism stand for more than pure unmediated majority rule.  Democracy requires a careful balance of rights and policy considerations often not adequately suited to initiative and referendum.

            The lessons of direct democracy are not comforting.  They have not necessarily strengthened citizens’ rule or promoted good government.  Instead, they are used often to push special interests and persecute minority rights–as is the case with the two Minnesota constitutional amendments this fall.  Opponents of these amendments should emphasize these lessons in their campaign to defeat both this November.

Class Warfare and the American Dream

Note: This piece appeared in Politics in Minnesota, Capitol Report, September 29, 2011.

America is the land of dreams. The United States is lauded as the land of opportunity, the place where anyone can go from humble beginnings and become a millionaire. It is the tale of rags to riches, of the Horatio Alger story, of a nation where we can rise as far as our talent takes us. Yet dreams die hard. The reality is that America is a nation of increasing poverty, economic inequality, and decreased social mobility; at least according to a series of recent studies and reports documenting the economic woes of the United States.

The first study is from the United States Census Bureau in 2010 describing poverty and income in America. In 2010 the richest five percent of the population accounted for 21% of the income, with the top 20% receiving over 50% of the total income in the country. This compares to the bottom quintile accounting for about 3% of the total income.

A second study by the Center on Budget and Policy Priorities in 2010, drawing upon Congressional Budget Office research, found that income gap between the top one-percent of the population and everyone else more than tripled since 1973. After-tax income for the top one-percent increased by 281% between 1973 and 2007, while for middle class or middle quintile it increased by 25%, for the bottom quintile it was merely 16%. Looking beyond income to wealth, the maldistribution has not been this bad since the 1920s. According to the Institute for Policy Studies, in 2007 the top one-percent controls almost 34% of the wealth in the country, with half of the population possessing less than 3%. The racial disparities for wealth mirror those of income. Since 2007 the wealth gap has increased as the value of American homes–the single largest source of wealth for most Americans– has eroded. Studies such as the Survey of Consumer Finances by the Federal Reserve Board have similarly concluded that the wealth gap has increased since the 1980s.

But Americans dream and believe they can rise to the top–get lucky, be the Horatio Alger rags to riches story; thus our fascination with buying lottery tickets. Yet social mobility in America has ground to a halt. A 2010 Organization for Economic Cooperation and Development study found that social mobility in the United States ranked far below that of many other developed countries. Nearly half of the economic advantage parents have in the United States is transmitted to their children; a number nearly two-and-one-half times that of Australia and Canada. The biggest cause of social immobility according to the report is declining educational opportunities for many students. Other studies, including those in 2005 and 2010 in the Economist similarly point to declining social mobility in the United States that makes it difficult for individuals to rise from one social economic status to a better one. In fact, there is better than a 95% chance that children will not improve their social economic status in comparison to their parents. Few really can move on up.

Conversely poverty in America has increased. In FDR’s second inaugural speech in 1936 he spoke of a nation that was one-third ill-clothed, ill-housed, ill-fed. In the 1950s due in part to the New Deal anti-poverty programs, the poverty rate fell to 22%, with over 39 million poor persons living at or below poverty level. By 1969 Great Society programs reduced the poverty rate to 12.1%, with a further decline to in 1973 where the poverty rate was 11.1%, representing 23 million.

Yet after that, and especially beginning with the Reagan era’s retrenchment on social welfare programs, the poverty rate has continued to climb. In 1983, the poverty rate was 15.2%, in 1992, the rate was 14.5%, representing 36.8 million, and in 2003, 12.5%, representing 35.9 million. Moreover, in 1992, the poverty rate for female-headed families with children was 48.3%, and 21.9% under the age of 18 were in poverty (14.6 million children). In 2009, 14.3%, or nearly 40 million in poverty, and now the latest Census figures point to a poverty rate in 2010 of 15.1%, representing a record 46 million in poverty. The numbers are equally grim when one looks at women, children, and people of color in poverty–all record or near record numbers.

One could recount in even more detail the picture of an America with growing class differences that are fixed. We live in a world where there are clear rich and poor, with the income and wealth differences played out in terms of racial and gender disparities. We live in a nation where the privileged few go to better schools, live in safer neighborhoods, have better access to medical care, and therefore are healthier and live longer. As F. Scott Fitzgerald once stated in his play The Rich Boy: "Let me tell you about the very rich. They are different from you and me.” Yes they are–they are privileged.

Many reasons explain the growing gap between the rich and poor and America. But at the core one can point to the emasculation of the New Deal and Great Society programs that once provided income transfers to the poor. There is the dramatic cuts on effective tax rates in America that prior to the 1980s were 70% but now are less than half that such that the poor and middle class, as Warren Buffet pointed out, pay a greater percentage of their income in taxes than he does. Similar tax cuts have been gifted to corporations. As a result, the rich are asked o contribute less to society and economic inequalities that exist are not offset by tax policies and income transfers.

Moreover the war on organized labor has had its toll. Unions from the 1930s until the 1980s had a significant impact on increasing wages, benefits, and the quality of life for America. But first beginning with Reagan’s firing of the PATCO air controllers in 1981 and continuing to Wisconsin governor Scott Walker’s assault on public employees this year, unions have come to be depicted as the new welfare queens in America, blamed for declining American competitiveness and budget deficits. Never mind that successful nations such as Germany pay higher wages and benefits, many believe that the only way to future prosperity in this country lies with immiserizating the American worker.

A couple of weeks ago Republicans lambasted President Obama’s call for tax increases on the wealthy as class warfare. The Republicans deserve credit–at least they recognize that there are class differences in America and that a war exists. However, only one class is fighting–the corporate rich–while the rest society sits idly by immobilized.

Debating Government: The Competing Values of Public Service and Market Activity

JFK, Space-Aliens, and Government
I am not a big believer in conspiracies. It was a single shooter in Dallas in 1963 and there is no massive government cover-up over space aliens and area 51 in New Mexico. Yet the events unfolding in Wisconsin over efforts to strip public employees of their bargaining rights and the ugly Prosser/Kloppenburg Supreme Court race, the potential government shutdown in DC, and the coming train wreck over the budget in Minnesota are all connected. The common thread in all these events is a simple question and debate: “Why Government?”

Why Government?
More specifically, the question is over the value of government in terms of what it uniquely does or performs. It is a core debate over whether the free market and logic and values are sufficient for ordering American society, distributing wealth and income, and delivering the good life, or whether the government itself is necessary or needed to accomplish this task. The core debate then is over whether there are unique values and contribution that government and its workers offer, thereby distinguishing them from the free market.

This is a question that has dominated my teaching in classes on ethics, public policy, and economic development policy for at least a decade. It is also a question that has become the focus of many talks I give to community and governmental groups. The latter especially are asking me to address it as they feel increasingly assaulted and demonized.

Americans have never really liked government. It started perhaps with our animosity to George III when we dumped tea in Boston Harbor. American ambivalence can be seen in attitudes over government programs such as welfare and Social Security (we hate one, like the other), and views on government regulation (we like the FDA to regulate drugs to be sure they are safe but dislike this regulation when it slows down what we hope are new cures for cancer). Even the TEA party is torn over government–they want less taxes and less government and plea for a more libertarian society, yet they demand that the government keep their hands off of their Medicare and Social Security.

But the most recent disdain toward government was launched by Ronald Reagan in 1981 when he declared government the problem, not the solution, and also stated that one of the most feared statements one can hear is “I'm from the government and I'm here to help.” Statements such as this demonized government, and it is not hard to connect this spirit to current attacks on school teachers and public employees by NJ and WI Governors Christie and Walker.

Not Necessarily a Partisan Issue
At the crudest level the debate over the unique value of government is a Republican/Democrat one, with the former described as anti-government and the latter pro. This is not a fair characterization. Many GOP like some aspects of government–the military and the police, and many Democrats dislike parts of government–regulation of reproductive and marital rights. But even more deeply, under president Clinton and VP Gore, embraced ideas from Reinventing Government by Gaebler and Osborne to re-engineer the public sector. The latter argued for the introduction of many private sector ideas and the spirit of entrepreneurship into the government in order to revitalize it. They wanted to make government, as Ross Perot said: “Run more like a business.”

Thus we saw statements that government should treat citizens more like customers, that it should be more market savvy, and that it should do more privatization and encourage competition to save money and improve performance. Why all this discussion is charming, what it failed to do was two things: 1) It misunderstood something the constitutional framers saw; and 2) it failed to capture a unique conception or role for government.


Markets versus Government
The American Constitutional framers feared powerful government. Efficient governments are a threat to individual liberty. Their goal in designing a complex government with checks and balances, separation of powers, bicameralism, and staggered electoral terms was to slow down the process of political change. It was to prevent an impulsive tyranny of the majority from infringing the rights of the minority. Better to create an inefficient government than an efficient one that makes the trains run on time at the expense of individual rights. Thus, a constitutional government such as ours was never meant to be efficient in the sense of competing with the private sector.

Efficiency is only one of the values of government, but there are others. This is the second mistake now being made. Governments are not just supposed to be efficient, they are also supposed to be fair, care about equity and equality, and respect other values such as transparency and respect for individual rights. Gaebler and Osborne failed to appreciate this, and so do many in both parties as they argue over the value of government.

Thus, on one level, listen to economists and they will tell you that the rationale for government is to address the problem of market failure. Government must act when the market either cannot or is not able to solve problems. Classically these are problems involving public goods such as national defense or security, or externalities such as pollution. These are issues where there is no market incentive to solve the problems.

The Value of Government
Yet this economic justification of government is thin. There is a broader value for government based on democracy and the public interest. As I discussed with my students the other day, many local governments in MN have recreation centers, parks, and libraries. True there may be no return on investment to them and they may not be efficient to operate, but that is not the end of the debate on whether government should provide them. Instead, it is about whether the people want these amenities. It is the peoples’ choice to offer these goodies. Moreover, the way the government makes choices and decisions are not always efficient but again, efficiency is not the final value. We do not value elections, due process, or civil liberties and rights because they are efficient, we prize them because they promote fairness and accountability.

The private sector almost singularly promotes efficiency and the bottom line. In the end, while many businesses claim “they do it all for you,” how many of you believe that is true? It is only to the extent that doing it for you is profitable or makes sense. Think about how much we all hate phone trees with businesses–it may be cheap to do this but does any customer think this is good service.

Citizens are not Customers
Contrary to what some may contend, citizens are not customers. A business-customer relationship is a cash nexus with loyalty determined along a singular dimension. A government-citizen relationship is deeper, reflecting many more complex values and connections regarding democracy, transparency, and accountability. “No taxation without representation” captures this sentiment while “No user fee without representation” misses it. The former suggests a right to a voice, the latter not necessarily. There is a big worry when some advocate that government should be more like a business. It is a logic that changes and challenges the basic values of government–suggesting government is not necessary and that it is simply a thorn in the side of the market.

Conclusion
The real debate in Wisconsin, DC, and St. Paul is one over government versus the market. It is one about the values of government and what it can contribute to the promotion of a good society. This is a debate worth having, and it is one that advocates for government need to reframe in terms of a language and set of values that describes what government uniquely can do. If they fail to do that they will lose the debate.

The real threat to union-busting: The constitution

Today’s blog is an op-ed of mine in the March 2, 2011 edition of Salon.com.

The real threat to union-busting: The constitution

The Democratic state senators who are hiding out across state lines in Illinois are a major problem for Wisconsin Gov. Scott Walker and his effort to push a bill stripping public employees of their collective bargaining rights through the state Legislature. So is Wisconsin's state constitution, which severely limits Walker's ability to break the Democrats' resistance. Any action he might take, it seems, could form the basis for a successful challenge before the state Supreme Court.
1. One issue could arise if Walker wins passage of the bill by deputizing the police to round up Democratic senators, if any of them return to the state, and force them to come to Madison. Article V, Section 4 of the state constitution gives the governor the power to "convene the legislature on extraordinary occasions" and "take care that the laws be faithfully executed." The first power allows the governor to call special sessions in the event of emergencies. But even if the governor calls a special session, it is not clear that he has the authority to force legislators by police escort to show up. Similarly, the power to faithfully execute the laws is significant, but it also requires one to ask what laws are being broken if senators refuse to show up.

But let's pretend their failure to appear at the state Capitol is a crime (even though it isn't in Wisconsin); even then, the senators cannot be arrested and detained, according to Article IV, Section 15, which states: "Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session."

Similar clauses are found in many other state constitutions. Their origins date to the 19th century and their purpose was to prevent opposition forces from using trumped-up legal charges to prevent legislators from voting. Here, Article IV, Section 15 could be invoked to challenge any effort to arrest and detain senators for the purposes of forcing a vote. Of course, as long as the senators are outside of Wisconsin, state police have no jurisdiction to detain or arrest; if the police were to cross lines to apprehend the senators, they would be engaging in kidnapping -- a felony in the state, and also a potential violation of federal kidnapping laws.

But what if senators are derelict because of their failure to show up for their duties -- what is the remedy? Article IV, Section 7 of the constitution commits this issue to the legislative branch to address. Specifically, it states: "Each house ... may compel the attendance of absent members in such manner and under such penalties as each house may provide." In other words, the Wisconsin Constitution explicitly delegates to the Legislature the sole authority to determine how it may enforce attendance. This means that Gov. Walker is barred constitutionally from taking any action. Nor can legislators be impeached, thanks to Article VII. Technically, the state Senate could move to expel absent members according to Article IV, Section 8. But expulsion requires a two-thirds vote of the entire body -- which is unlikely.

Assume now that Walker does compel senators to come to the Capitol and a vote occurs. Would such a vote be constitutional? This is debatable. If the arrest or detention of legislators is illegal under the state constitution, then any vote forced as a result would also be unconstitutional. One could also invoke Article IV, Section 1, which vests the legislative power in the Senate and the Assembly. This clause, along with similar clauses for the executive and judicial branches, creates an inherent separation of powers doctrine. By forcing senators to attend and taking a vote, the Legislature's inherent powers may be violated.

Finally, if the Senate doesn't convene to vote and no budget is adopted, can Walker simply suspend collective bargaining rights and lay off public employees on his own? The answer is no. The governor has broad veto authority under Article V, Section 10, but he cannot use power until a bill is presented to him. Similarly, he cannot act unilaterally to balance the budget if the Legislature does not act. Tim Pawlenty, then the governor of Minnesota, learned this in 2010 when the Supreme Court in his state ruled that his efforts were illegal. The power to pass a budget and allocate money is a legislative function. For Walker to just fire thousands of state employees in the name of balancing the budget without legislative authorization might also be a constitutional violation.

Thus, there may be no constitutional way for Gov. Walker and his Republican allies to enact their collective bargaining ban -- as long as every Democratic senator stays away from Madison.

Controlling Gas Prices and Other Economic Heresies

Economics the topic this week, tackling four issues that ought to be on everyone’s mind. It is a plea to political leaders to have the courage to speak the truth and for citizens to be willing to listen to it.

Gas Prices
$3.50 a gallon for gas! This is some jump in present gas prices based on speculation about the future of Libya and other Middle East oil producing countries. Increased gas costs can justifiably be based on objective factors such as decreased supply, increased demand, exploration and costs in a post-peak world. But surely there is no basis for jacking up the price at the pump premised upon subjective speculative factors? Or is there?

At the root of this debate is a clash between rival economic theories. Current economic orthodoxy is that gas stations, distributors, and oil companies are economically justified to raise prices on current gas and oil based upon speculation by traders about future gas and oil because it necessary for “cost recovery.” As the argument goes, if today the price of a barrel of oil goes up by 10% is it ok to raise the price at the gas pump or at the distribution point equally by 10% or more in order to recover future anticipated costs. This is an interesting theory but it fails to make sense.

Think about an alternative economic theory that is more realistic. Let us say that on February 27, 2011 gas is selling at the pump for $349.9 per gallon. Assume also that the price of crude oil on the commodities market goes up by 10% that day. Should dealers and distributors be permitted to raise gas prices by 10% or more on the gas they already own and have purchased? No. The gas they have in their possession was purchased in the past at a different price P1. The gas sold on February 27, 2011 (T1) should be based on price P1. It is P1–gas purchased in the past but now presently in the distributors’ or stations’ tanks–plus a reasonable profit that should determine the price of gas at T1. It should not matter what speculation is taking place on the commodity markets regarding future gas prices.

Another way of making this argument is to say that if crude oil gas prices are rising, they should not affect current gas prices. Sellers of gas can recover costs on the new price P2, at some future time T2. To allow for “cost recovery”–raising of gas prices on current gas already purchased based upon future speculation really amounts to what used to be called profiteering or price gouging. Moreover, to allow for speculation on future prices of gas to affect the price of current gas already purchased by stations or distributors only helps to encourage gas speculation and price volatility.

We saw a few years ago how crude oil speculation drove gas to $4 gallon plus. There was no decrease in production and proof that it was gouging was that the major oil companies had record profits. The same is already occurring again.

There ought to be a law that prevents the raising of gas or energy prices on current supplies based upon future speculation. Let new supplies, which reflect the new crude oil prices, reflect the new price. This is a better free market theory that does not encourage speculation.

Wisconsin Budget Crisis
Governor Walker contends he needs to strip collective bargaining rights from public employees in order to address the state’s structural deficit. He cites public employee health care and pension costs as the problem. There are several reasons his theory is wrong.

First, even if he is correct, the public employees’ unions have already indicated their willingness to negotiate on these points. That should settle the issue about the need to strip away rights.

Second, Walker is not correct in his linkage, at least to the extent that he asserts. Wisconsin’s deficit, much like many other states, is driven by several factors. 1. There is the recession driving down tax revenues at the same time demand for government services are increasing. 2. Overall health care costs are rising in America in the public and private sectors. Obama’s health care law was originally supposed to address this issue but there really is very little in the 2010 Patient Protection and Affordability Act that does that. Thus, the health cost issue is a more pandemic issue not confined to public employees, unions, and Wisconsin. Blame a mediocre federal health care bill for that issue. 3. Many states have failed to raise taxes for years and in the case of Wisconsin, a tax cut was pushed through. Combine a tax cut with rising health care costs with a recession and a demand for government services and what do you get? You get a state deficit. These are not factors driven but public employees’ collective bargaining rights.

Finally, it should be pointed out that the pension and health care benefits were freely negotiated in the past. Cutting both only leaves these individuals and their families economically worse off in the future. They were promised these benefits as a result of a fair bargain. Stripping away collective bargaining rights is like taking your bat and ball home because you do not like the way the other side is playing the game.

Fixing Social Security
Obama’s budget is a failure and the GOP response is just as bad. Both sides fail to address the real needs to tackle Social Security, Medicare, Medicaid, and the horrible tax structure we have. Throw Michelle Bachmann and the Tea Party in with that too. All of them are dishonest about the budget.

Social Security is easy to fix with two changes. The first is gradually raise the eligibility age to 67 over the next five years to a decade. Second, Social Security taxes are currently capped at approximately $106,000. This means that if you make more than this amount any income above this is not taxed. A simple answer is lift the cap. Turn the current regressive Social Security tax from a regressive to a progressive one. Lifting the cap and raising the age easily solve the Social Security problem for the future.

Fixing Health Care to Cut Costs and Improve Public Health
The 2010 Patient Protection and Affordability Act was a positive social good but a missed opportunity. The good was in extending health insurance to 36 million or more Americans. The missed opportunity was its failure to go far enough to address public health care needs and reduce costs.

According to a CDC or NIH study (I cannot remember which), about ten percent of American’s society’s health is driven by lack of access to health care. Approximately 30% is due to genetic factors, 20% environmental, and another 40% percent by preventable life style choices. Genetic is self-explanatory. Environmental refers to pollution in the air and water and to public safety issues such as guns and crime. But the last category, life-style choices, refers to the fact we eat too much, drink too much, eat the wrong foods, and fail to exercise. All of us have seen the stories about chronic obesity in our society and it, along with American waistlines, are growing every day.

A broader health care plan in the United States need to address the life-style choices. However, as soon as this is talked about one sees annoying commercials sponsored by groups that represent unfoods on TV complaining that this is social engineering or an effort to tell Americans what to eat and drink. Is that not the kettle calling the pot black. This is exactly what they have been doing for years in their ads and now they object to some efforts to counteract their ads.

A good health care (and effectively a good economic) measure needs to address these personal choices.

Finally, there is also the problem of end of life care. We consume the majority of our health care expenditures in the last six months of our life. I am not raising the Sarah Palin ill-informed death panel issue, but clearly we need to address end of life health care. I do not know the solution but we need a more rational solution.