A big thumbs up for Walker across most of the state of Wisconsin. A big thumbs down in Madison.

The two half-states of Wisconsin—one with clear Democratic majorities, one with clear Republican majorities—can be seen in the results of the Marquette Law School Poll released this week. Political contests in either of the half-states alone would be bring few surprises and little drama because they would be one-sided. But combine the two halves into the one Wisconsin we actually have, and you get a polarized, evenly split state that has become a center of passionate partisanship, attracting high levels of national attention.

You can see the two half-Wisconsins in the demographic breakdowns of many of the questions in the new Law School poll. (The results are all on the Law School Poll’s webpage. To go to them, click on “Results & Data” and then on the line referring to “crosstabs.”)

There were some matters where the divide was more visible. On issues such as reducing state aid to education (results generally unfavorable to Walker’s position) or requiring people to show photo identification in order to vote (results generally favorable to Walker’s position), the variations by sections of the state were not as substantial.

Also, caution is in order: While the margin of error for the poll results as a whole was 3.8 percentage points, the margins of effort for results involving subgroups such as people in a specific media market are larger because the samples are smaller.

But there is no mistaking the overall picture. Some examples:

Asked if they approved or disapproved of the way President Barack Obama is handling his job, the poll sample as a whole was evenly split, 47% on each side. But in the highly Democratic Madison media market, 58% approved and 34% disapproved. For the city of Milwaukee, 63% approved and 34% disapproved. The reverse was true in the rest of the Milwaukee media market, which includes Waukesha, Ozaukee, and Washington Counties, areas that vote heavily Republican. The figures for that area were 37% approve and 57% disapprove. The Green Bay/Appleton media market was closely split, 46% approve, 48% disapprove. Results for the state outside those four areas were 42% approve and 50% disapprove.

For Walker, the job approval/disapproval figures were:

City of Milwaukee: 33% approve, 62% disapprove.

The rest of the Milwaukee media market: 61% approve, 36% disapprove.

Madison media market: 35% approve, 62% disapprove.

Green Bay–Appleton: 56% approve, 43% disapprove.

All other media markets: 59% approve, 38% disapprove.

Put that all together and you get 51% saying they approve of Walker’s job performance, 46% saying they disapprove.

You could see the political leanings of each part of the state clearly in the results when people were asked which of these two statements they agreed with more: “I’d rather pay higher taxes and have a state government that provides more services” or “I’d rather pay lower taxes and have a state government that provides fewer services.”

In the city of Milwaukee, 49% of those polled chose the higher taxes/more services side, while 38% took the lower/fewer side. In Madison, the figures were 53% higher/more and 42% lower/fewer.

On the other side of the geo-political divide, 36% of those polled in the rest of the Milwaukee media market said higher/more and 54% said lower/fewer. In the Green Bay-Appleton area, it was 38% higher/more and 52% lower/fewer. For the remainder of the state, the figures were 36% higher/more, 55% lower/fewer.

In his remarks at an “On the Issues” session at the Law School following release of the poll results, Charles Franklin, visiting professor of law and public policy at the Law School this year, suggested that the results of a possible governor’s race between Walker and Democratic State Sen. Tim Cullen were interesting. Franklin, who is directing the Marquette Law School Poll, said that only 18% of those polled knew enough about Cullen to express a favorable or unfavorable opinion about him. Therefore, Franklin suggested, Cullen’s results against Walker might be taken as an indicator of baseline support at this point of any Democratic challenger to Walker.

With that in mind, look at the Walker/Cullen results by region:

City of Milwaukee: Walker 35%, Cullen 52%.

Rest of the Milwaukee media market: Walker 61%, Cullen 31%.

Madison area: Walker 36%, Cullen 55%.

Green Bay–Appleton media market: Walker 52%, Cullen 35%.

The rest of the state: Walker 56%, Cullen 34%.

Getting a big turn out on the turf where you’re strong and doing better than expected on the turf where you’re weak are the standard underlying priorities for any statewide campaign by either party. You can count on that being true in all three of the major races expected this year: for governor, U.S. senator, and president. Regional strategizing will be a factor in the advertising campaigns of candidates—and the air waves are going to be awash with commercials all year—but it also is a consideration in the often under-publicized “ground game” of campaigns. Networking with supporters, targeted mailings, phone banking, and knocking on doors while distributing campaign literature will all be high priorities for candidates who want to maximize the voting among residents in their half of Wisconsin’s political map.

It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln.

First of all, let us consider Theodore Roosevelt’s defense of an active federal government. In his “New Nationalism” speech in 1910, Roosevelt argued:

The absence of effective State, and, especially, national, restraint upon unfair money-getting has tended to create a small class of enormously wealthy and economically powerful men, whose chief object is to hold and increase their power. The prime need to[day] is to change the conditions which enable these men to accumulate power which it is not for the general welfare that they should hold or exercise. We grudge no man a fortune which represents his own power and sagacity, when exercised with entire regard to the welfare of his fellows. . . . We grudge no man a fortune in civil life if it is honorably obtained and well used. It is not even enough that it should have been gained without doing damage to the community. We should permit it to be gained only so long as the gaining represents benefit to the community. This, I know, implies a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had, but I think we have got to face the fact that such an increase in governmental control is now necessary.

In Roosevelt’s view, the great industrialization of the America economy following the end of the Civil War had created an unprecedented degree of economic inequality. This economic inequality created a threat to democratic self-government:

At many stages in the advance of humanity, this conflict between the men who possess more than they have earned and the men who have earned more than they possess is the central condition of progress. In our day it appears as the struggle of freemen to gain and hold the right of self-government as against the special interests, who twist the methods of free government into machinery for defeating the popular will. At every stage, and under all circumstances, the essence of the struggle is to equalize opportunity, destroy privilege, and give to the life and citizenship of every individual the highest possible value both to himself and to the commonwealth.

The solution, according to Roosevelt, was for the federal government to police the private markets on behalf of the “have-nots,” in order to ensure that the “haves” do not use their concentrated economic power for objectives that are destructive to the common good. Theodore Roosevelt returned to this theme of the federal government as a counterpoint to the economic elite in his “Autobiography.” In that book, he summarized the evolution in his thinking that led to the “New Nationalism” speech:

[A] few men recognized that corporations and combinations had become indispensable in the business world, that it was folly to try to prohibit them, but that it was folly to leave them without thorough-going control . . . They realized that the government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud . . .

The more active federal government that Roosevelt envisioned did, in fact, come into being. The combination of two World Wars, and the response to the Great Depression, led to a more powerful federal government and the subordination of corporate power to government control. However, in recent decades the overarching trend has been towards deregulation and a reduction of government power. The result has been a reduced government role in policing the economy, and an increased anxiety on the part of workers and retirees who feel that they are at the mercy of market forces. It makes sense, therefore, that President Obama would return to progressive themes that speak to similar anxieties that existed during the Roosevelt era.

However, historian Heather Cox Richardson of the University of Massachusetts, Amherst has traced Roosevelt’s idea of an active federal government back to an even earlier Republican: Abraham Lincoln. In a 2010 article published in the Marquette University Law Review, entitled “Abraham Lincoln and the Politics of Principle,” Professor Richardson argued that Lincoln created a new idea of an activist federal government that focused on promoting economic progress for individuals. She points to Lincoln’s policies in support of homestead legislation, the creation of the Department of Agriculture, and the Land-Grant College Act.

Professor Richardson considers Lincoln’s speech in Milwaukee on September 30, 1859 as the first time that Lincoln publicly espoused his vision for an active federal government. He spoke of a federal government that did not leave poor laborers to their own devices, but rather that provided those born into the lower economic strata with the land and the education that these economically disadvantaged Americans could use as tools in order to better their condition. She summarizes:

Lincoln’s concern about the growing power of Southern slave owners in the 1850s convinced him that the government must not privilege an economic elite. Rather, it must leave the economic playing field free for hard-working individuals to rise. By 1859, the idea of government support for individuals had combined with his conception of a “nonpolitical” politics to suggest that ‘equality’ might mean something more active than simply staying out of the way of the man on the make. For decades, men had called for government promotion of individual economic advancement, an idea that Republicans like Lincoln were ready to adopt.

One important policy initiative of Lincoln’s was the promotion of higher education for all, not just for the wealthy. In 1862, Congress passed the Land-Grant College Act, using public land to fund state universities. A second important policy initiative was the establishment of a federal Bureau of Refugees, Freedmen, and Abandoned Lands in 1866 to create homesteads for freed slaves and poor whites in the aftermath of the Civil War. The purpose of this law was to break the hold of the Southern elite on the Southern economy, by promoting self-sufficiency for small farmers.

The fate of the so-called Freedman’s Bureau is telling. After President Lincoln’s death, President Andrew Johnson repudiated the idea that the federal government had any legitimate role to play in promoting economic advancement for the average worker. He attacked the Freedman’s Bureau as a giveaway of tax dollars to the “indigent.” Johnson also attacked the Freedman’s Bureau as a federal program that spent tax dollars exclusively for the benefit of blacks, when the reality was that the legislation was intended to foster farm ownership for poor whites in the South as well as poor blacks. As Professor Richardson summarizes: “Johnson’s equation – that government activism equaled special help for blacks paid for by hard-working taxpayers – became the equation that opponents of government activism have used ever since.”

Tomorrow morning, leaders of the current Republican Party will undoubtedly assail President Obama’s State of the Union address on the grounds that it engages in “class warfare” and divisiveness. However, it is worth recalling that the idea that the federal government should take the lead in reducing economic inequality in our society is an idea that has deep Republican roots.

But sometimes, timing is everything. So that’s why there were a gaggle of television cameras, a cluster of reporters, and about 200 others in the room when Kennedy joined Mike Gousha for an “On the Issues” session at Eckstein Hall on Thursday.

Kennedy is director and general counsel of the Wisconsin Governmental Accountability Board. Now in possession of petitions with about 1.9 million signatures calling for recall elections for governor, lieutenant governor, and for four state Senate seats currently held by Republicans, the board is at center stage for one of America’s hottest political scenes. What the GAB decides in handling the petitions and setting the course for the elections that are almost sure to result will have a major bearing on Wisconsin’s future and become a vivid part of Wisconsin’s history.

“It’s an honor to be part this process,” Kennedy told Gousha, the Law School’s distinguished fellow in law and public policy. ”And it’s definitely energizing. You can’t help but get juiced when you’re working on something this challenging.”

Kennedy compared the role he and the board are playing to being an umpire or referee in a sports event. Asked by Gousha about contentions from partisans on both sides of the political spectrum that the board is biased, Kennedy said, “Ultimately, it’s just how you do the job. Someone has to play this role, whether it’s wrestling or soccer or football. . . . Someone has to make the calls.”

“People are going to try to work the ref,” he said.

For part of the session, large screens in the Appellate courtroom showed live images of the scene in an undisclosed location in the Madison area where GAB employees were scanning the recall petitions to create an electronic record that will be open to all. Kennedy said both tight security and an effort to be open to the public were necessary given the stakes at hand. He said 450,000 pieces of paper were submitted to the GAB on Tuesday, the deadline for the recall petitions, and each one of them needed to be scrutinized. They are also sure to be scrutinized by others. The GAB is planning to create a data base of the signers.

Under orders from Waukesha County Circuit Judge Mac Davis to give the petitions careful checks for proper signatures and possible duplication of signers, Kennedy said he was unable so far to set a timetable for when elections might be held. The GAB is expected to go to court next week to ask for more time than the 30 days for making decisions called for in state law. “We’ll probably be in this process for a while before things start to coalesce,” Kennedy said.

The conversation with Kennedy, which can be viewed by clicking here, was the first of what are sure to be numerous sessions at the Law School this year aimed at shedding light on the epic political developments in Wisconsin.

Coming up Wednesday will be the release of results from the first round of the Marquette Law School Poll. You can learn more about the poll by clicking here and you can click here to sign up for an “On the Issues with Mike Gousha” conversation with Prof. Charles Franklin, director of the poll, at noon Wednesday at Eckstein Hall. The session will be free and open to the public.

One good answer: You can run a large-scale polling project, adhering to the highest standards of professionalism and non-partisanship. You can poll repeatedly throughout the year, so that you can follow trends. You can make all the results available promptly to anybody. You can go to lengths to give others a chance to see what you’ve found out.

That is what the Marquette Law School Poll is going to do. It will be the most extensive polling project in Wisconsin history, and we are fully committed to making it an independent effort that will have no agenda except to find out as much as we can about public opinion in Wisconsin and share it with all.

In fact, consider this your invitation to tune into the poll’s results. We are launching the first round of polling on Thursday, Jan. 19, and will release the results next Wednesday, Jan. 25.

The results will be posted on a Web page that will go live in advance of that release. In addition, an “On the Issues with Mike Gousha” session will be held at noon on Wednesday at Eckstein Hall. Gousha, the Law School’s distinguished fellow in law and public policy, will interview Charles Franklin, the Law School’s visiting professor of law and public policy who is leading the poll project. The session is free and open to the public – you can sign up by clicking here. A video of the discussion will be posted on the Law School’s Web site and on the poll Web site afterward.

Franklin, a University of Wisconsin-Madison political science professor, will be at the Law School for all of 2012. He is a nationally respected expert on polling and a political analyst who is called on frequently by the news media.

This year is certain to be an epic one for Wisconsin politics, with the likelihood of close elections for U.S. Senate and president and, with the filing this week of petitions with more than a million signatures, an all-but-certain recall election to determine whether Scott Walker should be ousted as governor less than half way through his four-year term. It will be only the third recall election of a governor in American history.

Why is a law school getting into the polling business? Dean Joseph D. Kearney sees it as an important part of a growing effort by Marquette Law School to help inform the public on major issues and to make the Law School a crossroads for serious discussion of such issues. He described the polling project and its context in this paper sent to the Law School community in November. The poll will be paid for not out of tuition money from law students but rather from the dean’s discretionary dollars (donations by alumni and friends in support of the Law School’s priorities).

Franklin has said often in planning the launch of the poll that there will be people who will assume there is partisanship or an agenda behind the effort. His advice has been that that should not change our pursuit of doing things in the best—and most non-partisan—fashion we can. We invite people to judge us by what we actually do as part of the polling project. And, at least as important as that, we invite people to join in, delving into the results along with us and benefitting from having the solid grasp of public opinion that provides an important and level-headed piece of the picture of Wisconsin in a highly-charged and historic time.

Alan J. Borsuk is senior fellow in law and public policy at Marquette University Law School. He has been part of the planning process for the Marquette Law School Poll.

The GAB responded to the lawsuit by arguing that the Wisconsin statutes provide a clearly defined procedure that allows elected officials subject to recall to instigate challenges to any signatures that appear to be duplicative, fictitious or unrecognizable. After the GAB accepts the recall petitions, there is a period of 10 days in which the signatures may be challenged by the official. It is at the challenge stage that suspect signatures should be identified and removed, according to the GAB, and not earlier when the recall petitions are accepted by the agency. The GAB also contended that there was no provision in the Wisconsin Statutes that granted the agency the authority to do what the Friends of Scott Walker asked it to do.

Judge Davis disagreed with the GAB, and earlier today he ruled that the GAB is required to take affirmative action that will have the effect of reducing the burden that the Friends of Scott Walker would otherwise face. This is because the GAB must now identify and remove suspect signatures on its own initiative.

Why is the GAB obligated to do this, when there is no statutory language that explicitly places such an obligation on the agency? According to the Milwaukee Journal Sentinel, Judge Davis stated that he based his ruling on his interpretation of the Wisconsin Statutes rather than on the constitutional arguments pressed by the plaintiffs.  In its brief, the plaintiff’s argued that the language in Section 9.10(3)(b) of the Wisconsin Statutes provides that the GAB must “determine by careful examination whether the petition on its face is sufficient.” According to the Friends of Scott Walker, the command to subject the petitions to “careful examination” necessarily requires the GAB to adopt procedures for striking duplicative, fictitious and unrecognizable signatures. This argument is made in summary form here at pp. 17-18.

Standing alone, the procedures implied by the words “careful examination” could be interpreted in any number of ways, including the requirement that the GAB implement the procedures that the plaintiffs request. However, the fact is that these words do not stand alone. There are other provisions of the recall statute (Chapter 9 Wisconsin Statutes Section 9.10) that, when read together with Section 9.10(3)(b), counsel strongly against imposing such a requirement on the GAB on the basis of one isolated phrase.

The statutory provisions that are inconsistent with Judge Davis’ interpretation of Section 9.10(3)(b) have been thoroughly discussed by the blogger Jay Bullock (Folkbum).    I will add a few details.

One merely has to read the statute as a whole. For example, Section 9.10(2)(g) states “[t]he burden of proof for any challenge rests with the individual bringing the challenge.” The grounds for a challenge are listed in Section 9.10(2). Under the statute, a challenge may be brought and the signature removed if the challenger establishes by affidavit or other evidence that the signature is duplicative (Section 9.10(2)(i)) or that the signature is of an ineligible individual (Section 9.10(2)(l)). Under Section 9.10(2)(q), challenges may be brought for grounds other than those specifically listed. That would include challenges based on the assertion that the name on the petition is fictitious or unrecognizable.

In other words, at the prompting of the Friends of Scott Walker, Judge Davis has interpreted the words “careful examination” in Section 9.10(3)(b) so that they require the GAB to affirmatively seek out duplicative, fictitious and unrecognizable signatures when the language of Section 9.10(2) clearly places the burden of removing signatures that fall into these categories on the challenging party and not on the GAB.

Read as a whole, what does the statute mean when it says that the GAB must “determine by careful examination whether the petition on its face is sufficient?” The staute means just what it says. The GAB must identify those defects that can be determined from the face of the recall petition itself and that render a signature ineligible to be counted even if it is not challenged. Section 9.10(2)(e) states:

(e) An individual signature on a petition sheet may not be counted if:

1. The signature is not dated.

2. The signature is dated outside the circulation period.

3. The signature is dated after the date of the certification contained on the petition sheet.

4. The residency of the signer of the petition sheet cannot be determined by the address given.

5. The signature is that of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.

6. The signer has been adjudicated not to be a qualified elector on grounds of incompetency or limited incompetency as provided in s. 6.03 (3).

7. The signer is not a qualified elector by reason of age.

8. The circulator knew or should have known that the signer, for any other reason, was not a qualified elector.

(em) No signature on a petition sheet may be counted if:

1. The circulator fails to sign the certification of circulator.

2. The circulator is not a qualified circulator.

The statute refers to the failure to meet these requirements as “insufficiencies” and permits those circulating the recall petition to submit affidavits correcting the mistake (Section 9.10(2)( r)).

If the selective parsing of the statutory language argued by the plaintiffs in this case, and adopted by Judge Davis, sounds familiar, it should be. It is eerily reminiscent of the woeful misreading of the statutory provisions governing the publication of new laws that was argued before the Wisconsin Supreme Court in Ozanne v. Fitzgerald.  In this instance, the legislature has made a policy choice as to the appropriate procedures in a recall election. If that choice appears unwise or outdated, then the correct remedy is to seek new legislation. Instead, the Friends of Scott Walker encouraged Judge Davis to employ the words “careful examination” as a Trojan horse in order to substitute a different policy choice. That is not the role of the judiciary.

As a result of Judge Davis’ ruling, the GAB is now tasked with developing “reasonable procedures” sufficient to satisfy its new affirmative obligation to seek out and eliminate duplicates and obvious fakes. These procedures were never created by the legislature, so the GAB is in effect re-writing the rules as it goes along, without any legislative guidance. At the same time, the GAB must keep looking over its shoulder at Judge Davis, because it is likely that the Friends of Scott Walker will challenge the adequacy of the new procedures in court no matter what the GAB does.

It appears that the strategy of the Friends of Scott Walker is to use litigation in order to delay any actual recall election as long as possible, thereby allowing public emotions to cool and the anti-Walker sentiment to wane.

If there is a silver lining in the ruling of Judge Davis, it is that he resisted the call of the plaintiffs to extend the holding of Bush v. Gore and find that Wisconsin’s recall procedures violate the Equal Protection Clause of the United States Constitution. For the moment, I will resist the temptation to explain why the Equal Protection argument advanced by the plaintiffs in this case is unprecedented and dangerous. However, the plaintiff’s reliance on Bush v. Gore in its briefs does provide us with a dose of irony.

The holding of the U.S. Supreme Court in Bush v. Gore may have few defenders in legal academia, but one of that small band who defend the decision is Professor Edward Foley at Ohio State University, Moritz College of Law. Professor Foley authored an interesting article entitled “The Future of Bush v. Gore.” At page 997 he argues that the decision in Bush v. Gore was correct because the Florida Supreme Court had gone too far in its rulings. The fundamental mistake that the Florida Supreme Court made, according to Professor Foley, was that it allowed state judges to re-write election rules in the midst of an election.

Isn’t that exactly what today’s decision in Friends of Scott Walker v. GAB does?

This statement is objectively false. The recall provisions contained in the Wisconsin State Constitution were never intended to be limited in such a fashion. The original design of the right of recall is, in fact, intended to permit voters to recall elected officials for virtually any reason so long as the procedural mechanisms of the State Constitution are followed.

For present purposes, I take no position on whether a recall of Governor Walker based upon his actions since taking office is a good idea. However, Governor Walker’s supporters contend that the original “design” of the recall provisions is limited to circumstances where there is evidence of criminal conduct or a serious ethical violation. In making such claims, Walker’s supporters are attempting to cast doubt on the underlying legitimacy of the proposed recall drive, rather than arguing that the recall is unwise. Assuming that a recall petition against Governor Walker is filed on November 15, it is therefore worthwhile to ask whether the use of the recall power in this instance would be consistent with the original design of Article XIII of the Wisconsin Constitution. The answer to that question is “yes.”

A comprehensive history of the Recall Movement by Rod Farmer was published in 2001 in the New England Journal of History, entitled Power to the People: The Progressive Movement for the Recall, 1890-1920. Much of the following discussion draws upon the Farmer article, unless otherwise noted. The article is hosted on the website of the Initiative and Referendum Institute at the University of Southern California.

Farmer’s article makes it clear that the recall power was always intended to be extremely broad in practice:

A 1915 political science college textbook explained the recall this way: “In order to complete popular control over . . . government the recall has been adopted . . . [and] . . . it allows the voters to retire officials for any reason whatever which seems satisfactory to the electorate.” The recall rested upon the assumption that government officials should represent the direct will of the citizens.

(Farmer, p. 3)

Notable early advocates of the recall power in Wisconsin certainly agreed that the recall power should be construed broadly. For example, campaign literature put out by Senator Robert La Follette stated flatly that political candidates who campaigned on one platform (say opposition to the tariff), but who governed differently after they were elected, should be subjected to recall:

Senator La Follettte has favored and now favors the recall.

By the recall, a faithless public official may be retired without waiting for the evil to be fully consummated.

Under such a law, the public official will no longer betray his constituency.

Party platforms will mean party performance.

Downward revision of the tariff in the platform will not mean upward revision in accomplishment. The official will no longer rely on the people forgetting before election day rolls around. He will face the immediate dishonor he deserves.

(Shall The People Rule?, La Follette Campaign Literature)

The broad nature of the recall power reflects its role as the intended remedy for a broken democracy. A desire to reform the democratic process in America lay at the core of the Progressive Movement in America. Progressives wanted to strengthen the control of the people over the levers of government, while reducing the influence of the special interests, and the recall power was one way of accomplishing this goal.

Farmer reminds us that the term “Progressive” was an umbrella designation that included persons with many diverse motivations: Protestants demanding social justice for the poor, religious moralists opposed to alcohol consumption, and “good government” political reformers. (Farmer, pp. 4-5).  Many contemporary critics like to attack the Progressives for their economic policies. However, only some Progressives focused on economic reforms. The uniting thread among the various factions within the Progressive Movement was the view that government in the United States had become systematically corrupt. Their common remedy was to install mechanisms into the very structure of government that would increase the role of popular democracy.

Progressives exalted the federal and state constitutions, with their delegations of authority to elected legislators and executives, as the only legitimate vehicle for making and enforcing the law. However, when they looked at how the constitutionally created organs of government were actually being operated during the late nineteenth and early twentieth centuries – as opposed to how they were designed to operate — they saw that the real power of government was being exercised behind the scenes, and not by the people’s elected representatives. Legislative policy choices were being made in back rooms, out of the public eye, by political party bosses and corporate interests. Ready-made legislation was often brought to the floor of the legislature for quick approval, before the public was informed of the content of the bill or given an opportunity to comment. While lobbyists had a seat at the table, ordinary citizens were left with no power to influence policy. [This secretive union of corporate lobbyists and political interests, and the exclusion of public participation in the drafting of legislation, is echoed in the current day activities of the American Legislative Exchange Council (ALEC)].

Progressive critics railed against the “invisible government”: the corrupt union between partisan party bosses, intent on maintaining their own power, and corporate leaders acting in their own narrow self-interest. Senator Elihu Root , addressing the New York Constitutional Convention of 1915, went so far as to argue that the language of New York’s constitution was irrelevant because “machine” politicians Roscoe Conkling and Thomas Platt had effectively ruled the state for decades:

We have spent many days in discussing the powers of this and that and the other officer. What is the government of this state? What has it been during the forty years of my acquaintance with it? The government of the Constitution? Oh no; not half the time, or half way . . . From the days of Fenton and Conkling, and Arthur and Cornell, and Platt, from the days of David B. Hill, down to the present time the government of the State [of New York] has presented two different lines of activity, one of the constitutional and statutory officers of the State, and the other of the party leaders . . . They call the system . . . invisible government. For I don’t know how many years Mr. Conkling was the supreme ruler in this State; the Governor did not count, the legislatures did not count; comptrollers and secretaries of state and what not did not count . . . Then Mr. Platt ruled the State; for nigh upon twenty years he ruled it. It was not the Governor; it was not the Legislature; it was not any elected officers; it was Mr. Platt. And the capitol was not here; it was at 49 Broadway: Mr. Platt and his lieutenants . . . The ruler of the State during the greater part of the forty years of my acquaintance with the State government has not been any man authorized by the Constitution or by the law.

(quoted in Henry Steele Commager, The American Mind, pp. 313-319)

Progressives wanted to place political power back in the hands of the people through three types of amendments to state constitutions: the initiative, the referendum and the recall. All three of these reforms were considered to be tools by which the electorate could ensure that government remained transparent and inclusive:

Within a modern democracy, the ultimate normative objective is mass political inclusion: ‘[E]very individual potentially affected by a decision should have an equal opportunity to influence the decision . . . [C]ollective actions should reflect the purposes decided under inclusive processes.’ These sentiments were amply on display during the Populist and Progressive eras in American politics, as reformers extended the voting franchise, instituted direct primaries, and increased the number of elective offices; anything less than these reforms, it was said, would imply “corruption.” The principle of democratic inclusion remains a touchstone today. Under this much broader conceptualization of political corruption, many common activities in a system of liberal representation – backroom deal-making and logrolling, the mobilization of particular factions to further one’s political causes, brazen appeals to partisanship, for example – might be called into question.

(Redlawsk & McCann, Popular Interpretations of ‘Corruption’ and Their Partisan Consequences, 27 POLITICAL BEHAVIOR 261 (2005), at 264)

Other Progressive Era reforms included efforts to extend the franchise and widen the voting base, the successful push for the direct election of Senators by the people, and transparency provisions such as “sunshine” laws that required the prompt public notice of new laws and guaranteed public access to legislative proceedings. The elimination of the patronage system, whereby government workers were often hired and fired based upon political affiliation, was also an important element of Progressive Era reform. It is worth pausing for a moment in order to consider how many of these “good government” reforms are presently in the process of being rolled back, through voter ID laws, reduced public access to the legislature, and loose interpretations of public notice.

Far from being a radical invention of the Progressives, the broad power to recall public officials has venerable roots in American history. One early antecedent was the practice, common in the colonial era, of town meetings whereby residents met in order to issue instructions to the town’s representative in the legislature. While the representative’s instructions were sometimes labeled advisory, in many towns the instructions to the representative were considered mandatory. The widespread use of instructions in the colonies during this period paralleled reform efforts underway in England at that same time that sought to make members of Parliament subject to mandatory instructions from their constituents.

After the Revolution, the Articles of Confederation provided that the states had the power to recall their representatives to the national government, although this recall power was lodged in the state legislatures and not directly in the hands of the electorate. Nonetheless, when the United States Constitution was drafted, many delegates at the Constitutional Convention objected that the new Constitution did not provide the same recall provisions for congressmen as did the Articles of Confederation. Luther Martin, in particular, feared that the six year term of Senators was too long and would leave Senators unaccountable to the people unless a recall provision was added to the text.

The federal Constitution of 1789 ultimately did not contain any recall provisions, nor did it provide for the right of state legislatures to issue mandatory instructions to their federal representatives. The absence of these provisions reflects the desire on the part of the drafters to give federal representatives the freedom to promote national interests without being beholden to local pressure. However, the desire to advance these federalism principles in the United States Constitution should not be read as a rejection of the use of the recall power when it is exercised at the state level.

In the nineteenth century, first the Populists and then the Progressives picked up on the idea of the recall as a way for the public to hold legislators accountable. The Recall Movement gathered strength after Los Angeles became the first major U.S. city to include a recall provision in its city charter in 1903. In 1908, Oregon became the first state to include recall provisions in its constitution. Wisconsin was one of the last states to adopt a recall provision in 1926, by which time the Progressive Movement had run its course.

Supporters of the recall power argued that its foundation lay in the sovereign power of the people. They assumed that the role of the elected official was the role of a delegate, whose duty was to give effect to the opinion of his district and not to exercise his own judgment. Far from being radical, supporters thought that the recall was necessary in order to “restore popular government to the people by destroying the control of private influences over legislative bodies” (Farmer, p. 14, quoting a 1911 author). Political history in our country has always recognized the primacy of the sovereign people, but what had changed in the opinion of the Progressives was the growth of corporations and special interests that had captured the legislature.

Opponents of the Recall Movement resisted state constitutional amendments on the grounds that the recall power would lead to political instability. They charged that constant recall elections would lead to a form of “perpetual warfare” between political parties. They also charged that recall supporters were socialists who were engaged in class warfare against the educated, property-holding portion of the population. (Farmer, p. 20). In Wisconsin, as well as in many other states, the voters rejected these arguments in opposition to the recall power and proceeded to make the right of recall a part of the fundamental law of the state.

After arguing that the language creating the recall power was too broad, and too radical, those who had opposed the adoption of the recall power modified their argument. Now they claimed that the same language that they had previously criticized for being too broad was, in fact, intended to be construed narrowly, so that recall elections would only take place in those rare instances when candidates had committed serious criminal or ethical transgressions.

An examination of statements by leading Progressive politicians refutes the idea that the recall power was intended to be limited to specific criminal or ethical violations. Theodore Roosevelt, for example, argued that elected officials were held to a higher standard than mere compliance with the letter of the law:

There are not a few public men who, though they would repel with indignation an offer of a bribe, will give certain corporations special legislative and executive privileges because they have contributed heavily to campaign funds; will permit loose and extravagant work because a contractor has political influence; or, at any rate, will permit a public servant to take public money without rendering an adequate return, by conniving at inefficient service on the part of men who are protected by prominent party leaders. Various degrees of moral guilt are involved in the multitudinous actions of this kind; but, after all, directly or indirectly, every such case comes dangerously near the border-line of the commandment which, in forbidding theft, certainly by implication forbids the connivance at theft, or the failure to punish it.

(Theodore Roosevelt, The Eighth and Ninth Commandments in Politics, OUTLOOK, May 12, 1900)

Similarly, when Progressives spoke of pervasive government “corruption,” they did not understand that word to refer to violations of the criminal code. Rather, “corruption” referred to the failure of a government official to put the public good ahead of special interests. In this regard, the Progressives were merely using the word the same way that it was used by the Framers of the Constitution:

The term ‘corruption’ generally was understood [by the Framers] . . . to mean not merely theft . . . . but the use of government power and assets to benefit localities or other special interests (in essence, ‘factions’). . . . Corruption existed when a narrow benefit was sought and received – the mental attitude and approach towards government was intrinsic to the definition.

Moreover, the activities included could be legal or illegal, so corruption clearly is not attached to a set of violations of the criminal law. [Governeur] Morris explicitly said that the corruption concern encompassed lawful abuses of power, not merely unlawful abuses or ‘usurpations.’

(Zephyr Teachout, The Anti-Corruption Principle, 94 CORNELL L. REV. 375-376 (2009))

However, Progressives believed that government corruption had increased significantly since the founding of our nation, stimulated by corporate spending on political activity. Theodore Roosevelt made this point extensively in his famous “New Nationalism” speech. While the speech should be read in its entirety, for present purposes it is sufficient to quote Roosevelt’s conclusion about the manner in which corporate money diminishes the ability of the general public to exercise control over the democratic process for the common good:

The true friend of property, the true conservative, is he who insists that property shall be the servant and not the master of the commonwealth; who insists that the creature of man’s making shall be the servant and not the master of the man who made it. The citizens of the United States must effectively control the mighty commercial forces which they have called into being.

There can be no effective control of corporations while their political activity remains. To put an end to it will be neither a short nor an easy task, but it can be done.

We must have complete and effective publicity of corporate affairs, so that the people may know beyond peradventure whether the corporations obey the law and whether their management entitles them to the confidence of the public. It is necessary that laws should be passed to prohibit the use of corporate funds directly or indirectly for political purposes; it is still more necessary that such laws should be thoroughly enforced. Corporate expenditures for political purposes, and especially such expenditures by public-service corporations, have supplied one of the principal sources of corruption in our political affairs.

If some modern readers find Roosevelt’s broad usage of the word “corruption” to be confusing, that may be because a handful of Supreme Court Justices have recently embarked upon a campaign to re-define that word. Intent on advancing the non-originalist idea that corporations have a right of free speech under the First Amendment, these judges have argued that the word “corruption” can only be understood to apply to acts of bribery involving elected officials, where some sort of quid pro quo of cash for specific performance is alleged to have taken place.

As summarized by Professor Zephyr Teachout, “[i]n a handful of cases, and for a handful of Justices, corruption is basically coextensive with the criminal law statutory definition of bribery and ‘political corruption’ – a view coming out of some (probably) careless writing in [Buckley v. Valeo].” (Teachout, p. 388).  In Buckley, the majority opinion of the Court had mentioned the quid pro quo form of political bribery as one type of corruption. Later, in the Citizens Against Rent Control case, Chief Justice Burger would cite Buckley as holding that bribery was the only form of corruption that justified laws restricting free speech in the context of political campaigns. Justice Kennedy picked up on this point in McConnell v. FEC. By the time of the Citizens United case, the idea that corruption could only be defined in the narrow sense of bribery of elected officials became one of the cornerstones in an opinion by five Justices that struck down campaign finance laws that restricted corporate spending. (Teachout, pp. 388-389).

It is a mistake to read the pervasive denunciation of corruption employed by the advocates of the recall power in the more limited sense that these current day conservative judges employ. To limit the word’s meaning in such a fashion is an anachronistic attempt to define deviant conduct downwards. Critics of the Supreme Court’s campaign finance decisions have called on the Court to abandon these efforts and return to the original meaning of the word corruption. However, regardless of the merits of current day attempts to re-define the word, it is clear that the drafters of the Wisconsin recall provisions understood corruption to encompass any conduct by public officials that advanced the objectives of special interests (especially corporate interests) at the expense of the common good.

Not surprisingly, the actual text of Article XIII of the Wisconsin Constitution reflects the history outlined above. In a previous post, I listed the many reasons why the text of the Wisconsin Constitution itself is inconsistent with any limitation of the recall power to instances of criminal or ethical wrongdoing.  First, the right of recall in Article XIII, Section 12, is guaranteed by the text without any limitation on the use of that power. We should not read a narrow limitation into the text without any language to support such a limitation. Second, instances of “corrupt conduct” or the commission of crimes and misdemeanors by elected officials is specifically made subject to the separate impeachment provisions of Article VII. We should not read a general grant of power to be duplicative of a more specialized constitutional provision, because it is improper to read any constitutional provisions as surplusage.

Third, the differences between impeachment and recall are significant. Impeachment, for serious offenses, can occur quickly. Recall elections take a long time, and seem ill suited as a means of removing serious transgressors. By the same token, impeachment is a vehicle whereby legislators un-do the choice of the electorate, so it is appropriate to limit the impeachment power to serious offenses. In contrast, recall is the action of the electorate to un-do its own choice, thereby making a lower standard for removal appropriate. Finally, serious allegations of wrongdoing trigger due process rights to defend oneself, which is the case in an impeachment proceeding. The lack of a vehicle for the recalled official to defend himself in Article XIII indicates that the recall power is not dependent upon any allegation of wrongful conduct.

It is a common technique of textualists to take language out of context in order to construct an alternative meaning wholly divorced from the original intent of the drafters.  Fortunately, the text of the Wisconsin Constitution is sufficiently clear on this matter as to preclude any such mischief here.

To be clear, it is perfectly appropriate to argue that the recall power contained within Article XIII of the Wisconsin Constitution is broadly available, but that it is a power best reserved for extreme violations of the public trust. This would be a statement concerning the circumstances under which a broad recall power should be used, as opposed to an assertion that it is improper to use the power at all. It is equally valid to make the opposing argument, which is that the recall power (and the mere threat of a recall) plays an important role in limiting potential abuses by those who exercise the public trust, and that therefore the electorate should utilize that power freely. This post is intended to clarify the broad scope of the recall power in general, not the wisdom of its use.

People who argue that the recall provisions of the Wisconsin State Constitution were designed solely for the removal of elected officials who violate the criminal law, or who transgress formal ethical rules, are engaged in the worst form of historical revisionism. In so doing, these individuals degrade the public debate over the utility of recall elections, by denying the public a common basis of historical fact by which to measure current events.

Constitutional provisions must be given their intended effect, and should not be interpreted out of existence by people who don’t like them. This requires judges, lawmakers and pundits to respect those Progressive elements that have been written into the Wisconsin Constitution because, as much as any other constitutional provision, they are the law of the land.

Photo: Voters submit petitions in 1910 to recall Seattle Mayor Hiram Gill. Gill was elected on an “open town” platform, and his administration tolerated widespread prostitution and gambling operations in the city. Despite being upfront about his policies, a recall drive was instituted against him. The grounds listed in the petition to recall Gill were 1) gross incompetence, 2) refusal to enforce the ordinances of the city, 3) lack of impartiality in appointing men to public office, and 4) allowing Seattle to become a home for criminals. See Mansel Blackford, “Reform Politics in Seattle During the Progressive Era,” 59 THE PACIFIC NORTHWEST QUARTERLY 177 (1968). Gill lost the recall vote, subsequently switched positions to become a “law and order” candidate, and was elected Mayor of Seattle again in 1914.

Cross posted at Indisputably.

It is Halloween, and time for my annual attempt at political satire.  Previous attempts at spooky political humor can be found here and here.  Public response to these efforts has been overwhelming, but I am going to keep doing it anyway.

Scene: A decrepit stone mansion in suburban Minnesota. A great entry hall is lit with the flames of a dozen torches. Ragged tapestries line the walls. In the corner, a grand staircase and an iron banister, covered in cobwebs, lead to the second level. The front door creaks eerily as two shadowy figures enter the room.

Van Helsing: Quiet, Mr. Harker, don’t let her hear you.

Harker: Do you think the Countess is sleeping?

Van Helsing: No. She only sleeps during the daylight.

The stillness is interrupted by a female voice coming from the top of the stairs.

The Countess: You know me all too well, Dr. Van Helsing. Did you stop by for a cup of tea? I wasn’t expecting visitors.

She steps out of the shadows and into the flickering firelight. She is wearing a diaphanous floor length gown, colored eggshell blue. Her long brown hair extends to her shoulders, where it curves back upwards in a flip. But the most striking aspect of her appearance is her stare, with two intense brown eyes that seem to pierce into her visitors’ very souls.

Van Helsing, wiping away a cobweb: I can tell that we are unexpected. This must be a tough place to keep clean.

The Countess: I had thought of moving to someplace smaller, but my mortgage is under water. Who sent you here? Was it that Kenyan President of yours?

Harker: Here now, lady, President Obama has released his birth certificate. He’s proven that he was born in Hawaii.

The Countess: Fool! Don’t you think that birth certificates can be faked?

Van Helsing: Don’t try to reason with her Harker. I’ve seen smarter men than you go mad in the attempt.

Harker: I’m not afraid of her. I’m a man of science.

The Countess: Science? The same science that warns us that the world is becoming warmer? Lies and political propaganda, more likely.

Harker: I’ll have you know that the Berkeley Earth Project recently confirmed that the average annual global temperature has been rising at a higher rate over the last few decades than ever previously recorded. It’s a provable fact!

The Countess: But you can’t prove that carbon emissions are the cause. You can’t prove that natural cycles won’t produce a cooling off effect in the future. You can’t prove that we can do anything to reverse the process.

Van Helsing: Don’t you see Harker, she exploits the fact that human beings are incapable of complete knowledge in order to undermine any scientific progress that we have made. She employs the logical fallacy that the failure to know everything is the same thing as the failure to know anything.

The Countess: You can’t prove that vaccinations don’t cause autism! Until we let the banks fail, there is no way of knowing whether bank failures will hurt the economy! If one person can change their sexual orientation, that must prove that everyone can!

Harker, rushing up the stairs with a wooden stake: Die, you fiend from hell!

Harker and the Countess struggle, falling down the stairs.

Harker: Aargh! She bit me!

Van Helsing pulls a vial of holy water from his pocket, and throws the water on the Countess. She screams, as the water burns into her flesh, and then falls limp.

Van Helsing: It’s over. She will never walk this earth again.

Harker, his hand covering a bloody wound on his shoulder: Dr. Van Helsing, I was wondering. Why did it take Obama so long to produce his birth certificate? If he had one all along, wouldn’t he have produced it sooner? And why didn’t he grant the State of Hawaii permission to produce his original 1961 birth certificate, instead of giving the media a certified copy? Doesn’t that seem odd to you?

Van Helsing sighs, reaching for the wooden stake on the floor. Under his breath, he mutters: And so it begins again.

According to a December, 2010 Gallup Poll, a combined 54% of Americans believe that human beings evolved from less advanced life forms, either under God’s guidance or without any participation from God.  Meanwhile, 40% of Americans believe that God created human beings in their present form.  The survey results also indicate that the relative percentage of Americans who believe in some form of evolution (as opposed to creationism) rises as education levels rise.

Why then, do the Republican presidential hopefuls almost uniformly reject a scientific theory that is accepted by the majority of Americans?  Why express an unnecessary position on an issue unrelated to federal policy that runs counter to the beliefs of sixty percent of voters with a college degree?  Most commentators simply assume that any electoral candidate who publicly rejects the scientific evidence in favor of evolution must be pandering to the fundamentalist Christians who comprise the core of the Republican base.

I happen to be Catholic, and therefore my faith does not compel me to reject the theory of evolution. Rather than reading the Book of Genesis literally, the Catholic Church has expressed a lukewarm acceptance of evolution, finding nothing objectionable in the idea that human life developed from lesser life forms so long as God’s role in the evolutionary process is not denied.  Nor do many of the “mainline” Protestant faiths, or people of the the Jewish faith, consider the basic tenets of their religion to be challenged by the theory of evolution.

However, those Protestant denominations who self-identify as “fundamentalist” have historically taken a strong stand in opposition to the teaching and/or the endorsement of evolutionary theory by any official government entity. Fundamentalism in the United States began as a reaction to modernist trends in Protestant theology that conceded the human (rather than divine) authorship of the Bible and that therefore interpreted the text as a product of human history and culture.  Rejecting the modernist approach, fundamentalists defended the biblical text as both historically and scientifically accurate.  While there is a vibrant debate over the extent to which fundamentalism necessarily requires a literal interpretation of the biblical text, those who support the teaching of creationism in our schools strongly oppose any official actions by our secular government that can be construed to deny the legitimacy of a literal reading of Genesis.  For these Christians, it is important that the government either refuse to teach evolution as a fact, or else accord creationism an equal weight with evolution in the classroom.  The most comprehensive exposition of the divergent religious views towards the theory of evolution, combined with a blow by blow account of the infamous “Scopes Monkey Trial,” can be found in Edward J. Larson’s excellent book Summer of the Gods: The Scopes Trial and America’s Continuing Debate Over Science and Religion.

Many of these fundamentalist Christians will vote in the Republican primaries.  These are the primaries that the eventual Republican candidate will need to win in order to secure the nomination, even if making a public overture in support of creationism risks alienating the moderate and independent voters whose support is needed in order to win the general election.  In fact, some commentators have tied Republican skepticism towards evolution to a similar skepticism expressed towards the science supporting climate change.  Democratic critics have even alleged that there is a broader Republican “war on science.”  Jon Huntsman has warned that the Republican Party risks being perceived as “anti-science” by the electorate.

In today’s political environment, however, I disagree with those who believe that a Republican candidate’s rejection of the theory of evolution will come back to haunt them with independent and moderate voters.  In particular, I think that voters who consider themselves to be members of the “Tea Party” movement may actually view a candidate’s skepticism about evolution to be a positive attribute, and that this positive reaction will be a constant among Tea Party supporters without regard to educational level and religious affiliation.  It turns out that there is an alternative basis, beyond religious belief or a mere lack of understanding, that explains a hostility towards evolution on the part of some voters.  For many likely Republican voters, the theory of evolution has a negative connotation because of the manner in which evolutionary theory was used by progressives early in the twentieth century to justify an “evolving” interpretation of the United States Constitution.

Henry Steele Commager was a longtime Professor of History at Columbia Univeristy and Amherst College.  Just as Walter Lippmann helped to define liberal thought in the early decades of the twentieth century, Commager was highly influential in the development of  modern liberalism in the middle of the twentieth century.  Commager’s 1950 book, The American Mind: An Interpretation of American Thought and Character Since the 1880s, is a tour de force of intellectual history.  However, like Lippmann, Commager’s books are rarely read today.  In fact, most contemporary readers of both men appear to be political conservatives intent on mining the authors’ criticisms of modern society for insights that can be employed, in jiu jitsu fashion, in order to undermine the authors’ liberal objectives.

Here is how Commager describes the influence of the theory of evolution on the interpretation of the United States Constitution:

Evolution gave a scientific foundation to what some of the wisest of the Fathers had known almost intuitively and to what Marshall and Story had from time to time pronounced, but what scholars had forgotten and what the public, so easily contented with political shibboleths had never fully learned — that the Constitution was not static but dynamic.  The historical approach [in opposition to Natural Law] . . . explained much heretofore taken as sacrosanct, as a mere accident, or — if that is too deprecatory — as a product of history.  Thus it made clear that the tripartite separation of governmental powers was not something fixed in the cosmic system but a product of two secular considerations: a temporary and perhaps regrettable misconception of the British constitutional system, and a fear of government tyranny.  And it suggested that with the passing of these considerations there might well be a readjustment of this mechanical feature of the constitutional system to the realities of politics.  It made clear that the profound fear of government which inspired the system of checks and balances . . . was not a reflection of natural law but of conditions peculiar to a time when the moral of history seemed to be that ‘government, like dress, is the badge of lost innocence.’  The conclusion was inescapable that the expansion of government activities was not a violation of the moral code — as it was sometimes assumed to be even in the mid-twentieth century — but a logical shift in the use of the Constitution from symbol to instrument, a logical response to the conclusion that government was made for man, not man for government.  It made clear that the distribution of powers in the federal system was not a revelation of the divine inspiration of the Framers — as Jefferson Davis thought as late as 1881 when he wrote his Rise and Fall of the Confederate States — but an outgrowth of experience in the British Empire, and it indicated that new experience might justify continuous modifications of that original distribution.

(The American Mind, at 320-321)

The belief in evolution, therefore, threatens more than the theological beliefs of fundamentalist denominations.  It can be viewed as a threat to the Natural Law approach of constitutional interpretation and an attempt to unshackle the chains that strict construction of the text place around the federal government.

Commager points to Woodrow Wilson as the key political leader who incorporated evolutionary theory into political science.  He quotes Wilson, who wrote, “Living political constitutions must be Darwinian in structure and practice.”  Commager sees a clear link between Wilson and the subsequent direction of the Democratic Party in the twentieth century:

And when [Wilson] came to analyze Constitutional Government in the United States he anticipated his even more audacious successor.  ‘The Constitution,’ he said, in words that Franklin Roosevelt was to echo, ‘is not a mere lawyer’s document; it is a vehicle of life, and its spirit is always the spirit of the age.’  It ‘was not meant to hold the government back to the time of horses and wagons, the time when postboys carried every communication . .  .  The United States have clearly from generation to generation been taking on more and more the characteristics of a community; more and more have their economic interests come to seem common interests.’  Notwithstanding his southern inheritance, [Wilson] was ready to acknowledge that a nation had evolved and the Constitution must be read in light of that evolution.  As the economy of the nation had become centralized, so must the power of the government to regulate that economy.

(The American Mind, at 324-325)

The Progressive Movement in American history adopted this view of the Constitution and attempted to put it into practice.  To a certain extent, they succeeded.  However, the growing acceptance of a “living Constitution” among many jurists in the years after Commager wrote inspired an inevitable reaction: the growth of originalism as a competing philosophy of constitutional interpretation.  While there are many forms of originalism, in general all “originalists” share the belief that the Constitution should be interpreted through the lens of the original text and intent of the Framers.  While originalists concede that accomodations must be made for new technologies, they insist that the original structural boundaries set by the Framers must be maintained unless the text is amended.

The greatest criticism of the evolutionary approach to reading the Constitution, and the strongest argument in favor of originalism, is that by giving the Constitution an evolving meaning liberal jurists were ignoring the question of consent.  If it is correct that “the people” are the ultimate sovereigns in our constitutional system, then no alteration in the original design of our government should occur without the consent of the people.  While scholars such as Professor Bruce Ackerman have tried to finesse questions of consent in connection with an evolving view of the Constitution, advocates of a “living Constitution” continue to struggle for a convincing answer to this criticism.

In light of the influence that the theory of evolution has had on the dynamic interpretation of the Constitution, it is not surprising that the current crop of Republican candidates feel comfortable publicly expressing skepticism towards the science of evolution.  In addition to placating the religious fundamentalists in the Republican base, a critical attitude towards evolution can also be seen as a signal to the advocates of limited government that the candidate stands firmly on the side of originalism in the constitutional debate over the scope of the federal government’s power.

However, while originalism is currently in ascendance as the predominant form of constitutional interpretation, progressives have not conceded the battle to conservatives.  In particular, a group of scholars, calling themselves the “new textualists,” have challenged conservative jurists to accord the same respect to the Reconstruction Era and Progressive Era textual amendments as they accord to the original constitutional text.  After all, the principle of consent requires that alterations to the text via the amendment process must be respected by the judiciary as an expression of the sovereign will of the people.  Consent cuts both ways.

The structural changes intended by the Equal Protection Clause of the 14th Amendment should not be evaded through artful grammatical parsing (as practiced, to its discredit, by the United States Supreme Court in a series of nineteenth century precedents).  In addition, the Wisconsin state consitutional provisions protecting public access to government (original 1848 text) , preserving the right to vote (added 1986), and providing for the recall of elected officials (created 1926 and amended 1981) should not be interpreted away in contravention of the intent of the voters who approved those provisions.  Textual language that was enacted in order to implement progressive conceptions of “good government” is entitled to the same respect as provisions that embody the political philosophy of the Founding Generation.  Judges are not free to pick and choose which portions of the constitutional text they will respect.

As long as it can be amended, a constitution can never be completely static.  As much as conservatives may wish to ignore the constitutional reforms of the nineteenth and twentieth centuries, and seek to reconstitute the limited role that government exercised in the colonial era, they are not permitted to do so.  Politicians may continue to question whether human beings are descended from lower forms of life, but no one can deny that our constitutions have evolved since 1789.

For one, they had lunch together. And for another, they decided to spend a day in each other’s districts, trying to get a better grasp of the perspective of people who lived different lifestyles and had different views from the people in their own districts. Schultz represents a strongly rural state Senate district, while Cullen’s district, which includes Beloit, is more oriented toward cities and factories.

Schultz and Cullen agreed on quite a few things: The legislative process in Madison had become too divisive. Good policy requires the support of at least half the people of the state and not just people on one side. Both parties were guilty of pushing through momentous decisions without significant support from the other party – in the case of the Republicans in Wisconsin, it was the collective bargaining bill that triggered an uproar in Madison earlier this year, in the case of the Democrats in Washington, it was the health care bill passed in 2010.

The two decided they should work together on an idea that could change things. They settled on trying to reform the way state Supreme Court justices are selected so that process is less partisan and less subject to influence from special interests.

And they decided to go on the road around Wisconsin with what they labeled their common ground tour.

The tour brought them on Friday to the Law School’s Eckstein Hall for an “On the Issues” session with Mike Gousha, distinguished fellow in law and public policy. “Are you howling at the moon?” Gousha asked them. Will people within political circles listen to what Schlutz and Cullen are saying?

Cullen responded that a lot of people in the Democratic Senate caucus think “I just don’t get it” and that he is too old-fashioned. He agreed there are people in the Legislature “who wake up in the morning to have a olitical war.”

Schultz said he believed there were at least a few other Republicans in the Senate who agreed that there was a need for more “functional” legislation. “I call myself a passionate pragmatist, because I’m not a milquetoast,” Schultz said. “The challenges that face this nation and this state need all of us.”

“We believe we are taking the correct course,” Cullen said of the common ground effort. But, he added, “to restore some sanity to Wisconsin politics may not be so easy.” For one thing, he said, “there’s not big centrist money” to support campaigns by people such as him. The big money  is on both the right and the left.

One of the results of Wisconsin’s episodes in all-out partisanship this year is that Schultz and Cullen – and maybe a few others — have gained influence as many people have reacted adversely to heavily partisan approaches. In the aftermath of the August recall elections, the Republicans are down from 19 to 17 members in the 33-member Senate, giving them a one-vote majority. If a matter splits strongly along party lines, one defection among the Republicans stops the action. Schultz downplays his potential role as that one person who needs to be kept on board, but that remains a possibility to take seriously.

The upshot, Cullen and Schultz suggested, is that some major upcoming issues, such as proposals for overhauling the state’s rules on mining or legislation related to venture capital investing, are likely to have a more moderate and even bipartisan tone. Gov. Scott Walker, who was adamant about not compromising during the collective bargaining tumult, talks often now about wanting everyone at the table on issues such as education reform.

Cullen said the altered atmosphere in the Capitol did not mean things that were done earlier this year, particularly the Act 10 revision of labor union powers, were going to get undone now.

Cullen and Schultz are in general agreement that the way Supreme Court justices are selected needs to be revamped so that merit is the main factor. They suggest a process in which a non-partisan panel screens people who want to join the court and recommends a list to the governor, who selects one to serve. Schultz likes the idea of having justices, at a later point, face an election in which people would vote whether to give the justice another term, but without a specific opponent on the ballot at the same time. Cullen is not sold on that idea.

But they each think, as Schultz put it, “it’s time for a citizen movement to take back our courts.”  And they’re eager to talk about it, both together and with people around the state, in hopes of coming with a practical plan that could be adopted with wide support.

Which, of course, if you listen to partisans on both sides, is a pursuit that will not succeed.

The “On the Issues” session can be viewed by clicking here.

I have commented on this issue before.   The editorial position of the Milwaukee Journal-Sentinel is misguided.  In particular, in editorializing against the exercise of the recall power, the Journal-Sentinel fails to account for both the specific text of the Wisconsin Constitution and the understanding of the recall power among the founding generation of our country.  The key to understanding the proper scope of the recall power is the basic conception of “the sovereignty of the people.”

As explained by Michael Kammen, emeritus Professor of History at Cornell University, in his 1988 book Sovereignty and Liberty: Constitutional Discourse in American Culture, the period immediately before and after the adoption of the United States Constitution saw a debate among the public concerning what it actually meant for the people of the United States to hold the ultimate sovereignty in our system of government.

On the one hand, some argued that popular sovereignty was largely a myth, and that the sovereign power of the people only manifested itself on the specific dates of regularly scheduled elections.  In between these elections, went this argument, the sovereign power to govern rested solely in the hands of those representatives of the people who had been elected by the voters.

In opposition to this view, many argued that the sovereign power of the people was in fact very real and that this power was exercised on an ongoing basis even during the period in between elections.  As I have explained in this article in the Wake Forest Law Review, conceptions of limited government in America rest on the idea that the people are the ultimate sovereign and that government only possesses the powers that are delegated to it by the people.  The recent growth of the Tea Party movement in the United States is an expression of the resurgence of this basic concept in contemporary political discourse.  Central to this idea of delegated authority is the principle that elected representatives must act in accord with the wishes of the public, and that the failure to do so is in and of itself sufficient grounds for that representative to be recalled before the end of their term in office.

Consider this quote from George Washington, in a letter to his nephew in 1787:

The power under the [federal] Constitution will always be in the People.  It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled.

(quoted by Kammen at page 24)

The Wisconsin Constitution clearly reflects and adopts the principle of an active popular sovereignty by creating the unlimited right to recall elected officials.  This is demonstrated by the fact that under Article XIII, Section 12, the power of recall is placed solely in the hands of the public, in the form of a recall election.  Not only does Section 12 explicitly refer to the “right” of recall, this section places the exercise of this removal power in the hands of the people as opposed to in the hands of their elected representatives.  Section 12 is also notable in that it does not limit the grounds of a recall election in any way.

The impeachment power, in contrast, is treated in Article VII, Section 1 of the Wisconsin Constitution.  Removal of elected officials via impeachment is clearly a power delegated to the representatives of the people, with specific powers granted to the Senate (trial) and the Assembly (commencement of proceedings).  Specific procedures must be followed during the impeachment process, in accord with the fact that those officials subject to removal by impeachment are entitled to an official opportunity to defend their conduct.  Most significantly, the impeachment power that is delegated to the people’s representatives is limited to the narrow grounds of “corrupt conduct” or the commission of “crimes and misdemeanors.”  The use of limiting language in Article VII, in terms of both procedure and grounds, and the absence of any similar limitations on the right of recall in Article XIII, clearly express the intent of the drafters of the Wisconsin Constitution to allow for a recall prior to the end of a representative’s term on virtually any grounds so long as a sufficient segment of the public desire that result.

Obviously, the editorial page at the Milwaukee Journal-Sentinel does not like the existence of such an unbounded power in the hands of the people.  As Professor Kammen makes clear, historical efforts to restrict and contain the exercise of popular sovereignty by the people have generally been based on a distrustful view of human nature.  Opponents of popular sovereignty do not trust the general population to make informed or wise choices.  Instead, they would structure the institutions of government in such a way that the ultimate power is placed in the hands of an elite and therefore more trustworthy class.

When it comes to the federal constitution, it appears that the opponents of popular sovereignty won the battle and succeeded in limiting the ability of the general public to influence the direction of public policy in any way other than by casting regularly scheduled electoral votes.  Kammen attributes this result to “a diminished faith in the capacity of ordinary folk” in the years after 1787 (Kammen at p. 29).  The importance of popular sovereignty at a national level fell into a decline in the following two centuries that the Tea Party Movement has only recently attempted to reverse.

However, state constitutions are different from the federal constitution.  In multiple provisions, state constitutions reflect an intent to give the sovereign will of the people a greater role in the determination of public policy at the state level than it enjoys at the federal level.  For example, the existence of provisions providing for state-wide voter initiatives, most commonly identified with California, reflect a desire to provide a means for the people at large to exercise their sovereign will and create laws independently of their elected representatives.  It remains to be seen whether the backers of the Tea Party Movement, so concerned about limiting federal power in order to promote individual freedom, will rouse themselves to defend the idea of popular sovereignty at the state level.

The recall provisions in the Wisconsin Constitution are a right possessed by the people of Wisconsin.  The Wisconsin Constitution intentionally places this right in the hands of the public, and it is intentionally left unbounded.  To interpret this right to be limited solely to conduct which would also constitute grounds for impeachment would be to eviscerate the right.  Such a result would not only be duplicative of the separate impeachment provisions of the Wisconsin Constitution, it would also limit the ability of the voters of Wisconsin to exercise their sovereign power in any form other than by casting a vote every few years in a regularly scheduled election. One likely result of the removal or limitation of the possibility of a recall would be to make elected officials less accountable to the public and to amplify the influence wielded by lobbyists and corporate donors during the interval in between elections.

The text of the Wisconsin Constitution has been under assault over the past year.  The Wisconsin Supreme Court has construed the “open doors” provision of the Constitution, guaranteeing public access to the legislature, in a manner that renders it largely meaningless.  The Office of the Attorney General argued in court filings that the “publication” requirement of the Constitution could be satisfied without following statutory procedures that call for the participation of the Secretary of State.  Today, there is news that the League of Women Voters will file a lawsuit contending that the new Voter ID law contravenes the right to vote contained in the Wisconsin Constitution.  The recall provisions of Article XIII, Section 12, are now in the crosshairs, and are being subjected both to editorial criticism and to legislative “reform” proposals.

Personally, I have faith in human nature.  I believe that the public at large is capable of making wise and informed decisions on public policy.  I also believe in the oft-stated principle that it is the people at large who are the ultimate sovereigns in America.  Popular sovereignty is not a myth.  However, I also know that if we stop believing in popular sovereignty, if we stop behaving as if the principle is real, and if we accept the premise that the people at large cannot be trusted, then we will undoubtedly succeed in transforming today’s right into tomorrow’s myth.

Milwaukee, Wisconsin (CNN) — Wisconsin — so polarized, so evenly split, so politically inflamed — sent a message to the nation Tuesday night.

Republicans will say it is a message that vindicates the strong action taken by Gov. Scott Walker and Republican majorities in both houses of the Wisconsin legislature to hold down spending and strip formerly powerful public employee unions of all but a bit of their power. The Republican actions became a national sensation in February when Democratic senators fled the state for three weeks and tens of thousands of people protested daily at the state Capitol.

Democrats will point to their victories in ousting two Republicans from the state Senate and to how much better they did on Republican turf than in the November 2010 statewide elections. They showed that momentum has swung their way, they will say.

As a pretty impartial person, my reading of the dominant message is: We live in polarizing, sharply split, inflamed times when it comes to politics. And that’s only getting more intense. . . .

For the rest of the comment, click here.

Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about.  Each step in Judge Sumi’s reasoning is supported by citations to statutory language, precedent, and/or evidence adduced at trial. None of the legal principles underlying Judge Sumi’s opinion are novel or controversial.  In fact, for evidence that her opinion is nothing more than mainstream legal analysis, one need look no further than to the multiple citations to Marbury v. Madison, that most “bedrock” of all bedrock cases. 

A great deal of sloppy lawyering has been put forth over the past several weeks in an attempt to create the impression that Judge Sumi is an out of control jurist.  Some of the bill’s advocates are guilty of cherry picking statutory provisions that they deem helpful, while conveniently ignoring contrary provisions.  Others have purported to rely upon sixty year old Wisconsin Supreme Court precedent, without first considering whether later statutory changes and constitutional amendments have rendered that precedent obsolete.  Dicta from the more recent Milwaukee Journal-Sentinel case was relied upon by others in order to support the idea that the Legislative Reference Bureau had the authority to “publish” laws, however these same partisans ignored the holding of that same case when it proved inconvenient on the question of the jurisdiction of the court.  Some advocates appeared willing to sacrifice basic principles of Administrative Law, if so doing would advance their argument that the law had been “published.”

In today’s newspaper we read that the State Attorney General’s Office has even gone so far as to allege that Judge Sumi has exhibited a “bias” in this matter on the grounds that she submitted a brief to the Wisconsin Supreme Court in defense of her exercise of jurisdiction in this case.  It is exceedingly odd to argue that a judge’s defense of her decision to excercise jurisdiction is somehow a reflection of bias towards the merits of a case.  I was a corporate litigator in a previous life, and I certainly understand the hard-nosed litigator’s attitude of “Just Win, Baby.”  However, the Attorney General’s Office is not a private litigator who is entitled to employ whatever aggressive tactics might advance the interests of his client.  To the contrary, the duty of the Attorney General’s Office is to “do justice,” not to do whatever it takes.

For doing her job, Judge Maryann Sumi has been subjected to specious attacks on her character and competence.  Every sitting judge in Wisconsin must be watching this case with great interest.  Every judge in the state has to be wondering, ”Will I be subjected to the same attacks, simply if I get assigned a case that requires the two political branches to comply with the rule of law ?”

As a member of the State Bar of Wisconsin, I am an officer of the court.  I commend Judge Sumi for doing her job, for staying focused on the issues before her, and for ignoring the personal attacks and distractions that have been directed her way.  She has done her job, and done it well.  Now the focus turns to the Wisconsin Supreme Court.  I hope that they stay focused on their job as well.

First: As a news reporter, I’ve never covered a race for a Supreme Court seat. I was struck by how awkward the debate is, compared to the plain old partisan races I’ve covered fairly often. It’s similar to confirmation hearings for U.S. Supreme Court justices: Basically, if you have something substantial to say, you can’t and shouldn’t say it. You can’t say what you would do with any potential upcoming issues. Frequently, you can’t (or won’t) comment on past actions, although Prosser did talk about some past cases and said he was glad to run on his record. So you end up standing there, saying repeatedly that you are independent and nonpartisan and will judge each case fairly and with an open mind. Which both Kloppenburg and Prosser did. But it is very clear that Prosser is being backed by conservatives and Republican-oriented groups and Kloppenburg is being backed by liberals and Democratic-leaning groups. Do all these people and groups know something the candidates don’t know? Are they wrong? Or is this a curious exercise in avoiding talking about the issues, even though everyone seems to know what you’d say if you did?

Two: I’ve been at some testy and tense debates and joint appearances by candidates in various races, but this one was way up the list, if it wasn’t the champion on my personal list.

The acrimonious atmosphere that has categorized the recent work (and public relations) of the Wisconsin Supreme Court has certainly carried over into this race. While both candidates said they were the right choice for people who wanted to see the court move forward with more collegiality, there was not much goodwill flowing between the two. Kloppenburg said Prosser had denigrated some justices and his conduct had made relations worse on the court (she did not mention the Milwaukee Journal Sentinel story that reported he had insulted Chief Justice Shirley Abrahamson, but she almost certainly didn’t need to). Prosser said Kloppenburg had let partisanship into her campaign and wanted to turn the election into a referendum on Gov. Scott Walker. He also said that Kloppenburg is “incredibly envious” of his record helping people as a prosecutor, while slighting her record in environmental work with the attorney general’s office as involving “the length of (boat) docks.” Kloppenburg responded, “I have improved the quality of life for communities around the state.”

Three: Prosser made what I would say is the most amazing statement by a candidate I have ever heard in person. He said Kloppenburg had left statements from supporters on her campaign’s Facebook page that were inappropriate, including this one: “Stop the turd, vote Kloppenburg.” He said, “Am I turd?”  He was in front of a bank of cameras. Moments like that can – and I suspect will – live forever on Youtube.  

Four: My bet is that if you entered the event with doubts in your mind about whether statewide election is a good way to pick Supreme Court justices, you didn’t leave there with your doubts allayed. On the other hand, you did get some significant glimpses of both candidates for use in guiding your vote on April 5. And if you weren’t there, you can watch the Wisconsin Eye tape of the session here.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.   Even after the dust settles on the particular aspects of the budget bill that have engendered controversy (collective bargaining rights, public school funding, control over state health care programs, etc.), there will remain three broad issues that call out for reform, both in Wisconsin and nationwide.  Everyone in Wisconsin (and that includes Democrats, Republicans, and Independents) shares an interest in preserving a system of government in which it is the voters of the state who hold the ultimate political power.  Overlooked amidst the partisan bickering between Governor Walker and the Democratic 14 are serious fault lines that threaten the long term stability of the democratic process.

1. Political Accountability

The Supreme Court has often stressed that our system of government only works when elected officials are accountable to the voters.  The Court’s interpretation of the U.S. Constitution has elevated the idea of political accountability into a basic structural component of both the separation of powers and federalism.  For example, in the case of Clinton v. City of New York, the Court struck down the Line Item Veto Act.  Justice Kennedy wrote a separate concurrence stressing the manner in which the technique of the line item veto impermissibly allows Congress to avoid being held politically accountable for its spending decisions.  Similarly, in Printz v. United States, the Supreme Court struck down certain provisions of the Brady Bill that required local law enforcement to perform background checks on handgun purchases.  Justice Scalia’s majority opinion stressed the manner in which the Brady Bill acted to shift unpopular enforcement responsibilities away from the federal government and onto the shoulders of state officials.    

From this perspective, the Walker administration’s budget bill was objectionable, on process grounds.  The budget bill incorporated fundamental policy provisions into a fiscal bill that was required in order to fund the state government.  Both political parties in Wisconsin have engaged in this practice in the past, and it is easy to see why.  First, the exigencies of passing a budget, and the desire to keep state government’s services and benefits flowing, work to create time pressures that preclude any reasoned deliberation and debate over the policy changes.  Second, the inescapable need to pass a budget bill in some form typically creates political “cover” for politicians who can vote in favor of the bill in its totality while still claiming to have privately opposed the passage of specific policy provisions.  The result of combining basic policy provisions with budgetary provisions, however, is that it allows elected officials to avoid taking responsibility for their votes.

The number of significant policy changes contained within the Wisconsin budget bill is sufficient to lead to the conclusion that the entire bill was designed to allow Republican legislators to avoid political accountability.  A false sense of urgency was created, using the fiscal needs of the government as an excuse, and the vote on the bill was fast tracked in order to limit public debate.  In addition, items that clearly would have generated a storm of controversy if introduced as a stand-alone bill were quietly buried in the budget bill.  This move allowed nervous Republicans to vote for the entire bill while maintaining plausible deniability with constituents who opposed the controversial provisions.

It is only due to the actions of the Democratic 14, who left the State in order to deny the Senate a quorum, that the issue of collective bargaining rights for public employees was separated from the overall budget provisions in the minds of the voting public.  As a result, and much to their chagrin, individual Republican legislators were forced to take a position on the issue in the face of public scrutiny.  All of these legislators, Democrat and Republican, are now accountable to the voters, who can exercise their power to recall legislators on either side as they see fit.  Contrary to today’s bizarre editorial in the Milwaukee Journal Sentinel, criticizing the recall efforts already underway, the accountability of elected politicians to the voters is a good thing.      

Procedural tricks designed to protect nervous lawmakers from being held accountable for their votes have no place in a democracy.  The Supreme Court is correct: the desire of the Framers to place the ultimate political power in the hands of the voters is meaningless unless political accountability is rigorously enforced.  “Handshake” agreements between the two political parties, whereby they make vague promises to keep policy proposals out of the biennial budget, are too easy to avoid.  Informal practices should be replaced with strong proscriptions that enforce such separation.

2. Money Matters (A Lot)

Even Wisconsin’s Senate Majority Leader admits that the collective bargaining provision contained in the budget bill strikes at the Democrats’ fundraising capability.  The vast sums of money needed to run a modern statewide campaign (primarily due to the cost of mass media advertising) has created an arms race between the two political parties in which both sides endeavor to raise ever increasing sums of cash.  Much of the money raised goes to pay for mass media advertising that solicits even more contributions, and for the salaries of professional fundraisers.    

Both political parties have become dependent upon collective entities, as opposed to individual contributors, for their financial needs.  Unions are the collective entity that provides the Democrats with a large portion of their funding.  Corporations are the collective entity that provides the Republicans with the bulk of their funding.  Both sides attempt to restrict or eliminate the source of their opponent’s funding, while preserving their own.

In the context of public employee unions, some people have complained that the unions are funded by taxpayer-supported salaries, and that these unions merely recycle those dollars to advance self-interested objectives that many taxpayers oppose.  That may be true to a certain extent, but the same point applies to corporations as well.  Corporations spend monies for political purposes that would otherwise flow back to the owners of the corporation.  In the case of publicly traded corporations, a large percentage of the company’s shareholder-owners are pension funds investing the retirement money of teachers and other government employees.  I doubt that the beneficiaries of these pension funds appreciate the fact that profits in companies that they own are being used to fund political speech (oftentimes hostile towards unions) rather than being paid out to them as dividends.

Rather than spend their time and energy plotting to defund their opponent’s main source of campaign dollars, our legislators should enact meaningful campaign finance reform.  This would entail limitations on the disproportionate influence exerted by collective entities on both sides, and force candidates for office to rely more heavily on individual contributions.  Campaign finance reform would also make public financing available for candidates who wish to forego contributions from collective entities (thereby allowing the emergence of candidates who are not financially beholden to either unions or corporations).  We are fortunate to have a national expert on campaign finance reform, Senator Russ Feingold, as a Visiting Professor here at Marquette.

If you include “issue ads,” such as the message advertising that Governor Walker alluded to in his phone call with the pseudo-David Koch, the general public already ends up footing most of the bill for campaign spending by collective entities.  For some of us, these funds are collected from our paychecks in the form of mandatory union dues.  For others, these campaign funds are derived from the cost of goods that we purchase from the dues paying members of Wisconsin Manufacturers & Commerce or members of other corporate lobbying groups.  A process that forces us to indirectly support the political spending of collective entities merely allows the middlemen to leverage our own dollars in exchange for their political influence.  The public should have the right to decide to cut out the middleman, and to support political candidates directly through publicly funded campaigns. 

The roadblock here is the United States Supreme Court.  I have already posted on this Blog concerning the case of Citizens United v. FEC.  I find the majority opinion in that case to be extremely misguided.  The Supreme Court has taken an absolutist view of the First Amendment in the context of campaign finance.  As a result of the Court’s holding in Citizens United, lawsuits have been filed challenging not only legislation seeking to limit the influence of collective entities on the political process, but also challenging the constitutionality of laws that provide for the public funding of candidates.  In essence, the voting public is being told that we are not allowed to regulate the electoral process, and that we have no choice but to accept the status quo.  I continue to maintain that the First Amendment was not intended to provide collective entities with a constitutional right to participate in the electoral process.     

3. Legislative Districting Reform

The third and final area that calls for reform involves the manner in which legislative districts have been drawn so as to amplify the power and influence of the extremes of both major political parties at the expense of the “moderate middle.”  An interesting post from the Washington Post blog looks at the congressional districts in Wisconsin, and considers whether the state legislature can re-district in order to increase the number of safe Republican seats.  The answer, apparently, is that current districts are already gerrymandered to the maximum extent possible.

I have blogged on this topic before as well.  The problem is that legislative districts are specifically designed to amplify a particular political affiliation among the voters, thereby providing a disproportionate influence to the extreme wing of that party.  Politicians elected from politically gerrymandered districts are often warned that they can expect a primary challenge if they stray too far from the extreme position, even though a majority of the voters who self-identify with that party would prefer a more moderate approach to the issue.  Superior organization and fundraising, coupled with lower turnout numbers in primary elections, combine to give a small number of energized activists the ability to mount successful challenges to the incumbent from the extreme wing of the party.  However, this is only possible because districts are drawn on a partisan basis so that the victor of the primary is highly likely to win the general election. 

If legislative districts were not gerrymandered along political lines, then politicians would have a greater incentive to appeal to moderate voters as opposed to “the base.”  Politicians might even recognize that their constituents hold a variety of different views on the issues, instead of dividing the electorate into two categories: opponents versus “one of us.”  Compromise and progress might even replace gridlock and frustration in both the state and national legislatures.  Instead, we find that our elected officials are increasingly polarized.

In 2004, the Supreme Court had the opportunity to do something about this in the case of Veith v. Jubelirer.  Instead, the majority of the Court ruled that the nature and extent of districts gerrymandered on a partisan basis raised a political question that the Supreme Court could not resolve.  As a result, the only way that partisan gerrymandering will end is if the politicians elected via that very process decide on their own to end it.

Contrast this result with the Supreme Court’s 1962 decision in Baker v. Carr .  There, the Court ruled that state legislative districts that resulted in some voting districts having greater representation than others did not present a political question and could therefore be challenged in court.  As recounted in a recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, Justice Clark, who had been tasked with researching alternative ways other than litigation in which the advocates for electoral reform might accomplish their objectives, concluded in a note to his colleagues: “I am sorry to say that I cannot find any practical course that the people could take in bringing this about except through the federal courts.”  Justice Clark’s vote was the crucial fifth vote in the case.  As a result, the Supreme Court created a mechanism whereby an electoral process that had become petrified and detached from the interests of the voters could be challenged in court, struck down, and reformed.             

We are at a similar impasse today with legislative districts that are drawn in order to favor the two extremes of the political spectrum at the expense of the majority of the voters (who reside well within the ideological middle).  However, this time the only institution capable of reforming the system has decided to sit on the sidelines.

The democratic process needs certain fundamental characteristics in order to work.  These necessary components include: holding legislators accountable for their votes, curbing the influence of collective entities so that the interests of individuals can take precedence, and drawing legislative districts in such a way that candidates can successfully appeal to moderate voters.  An electoral process that lacks these three features is doomed to become captured by special interests.  It may well be that we the voters are incapable of governing ourselves, and that my belief in the democratic process is just a myth.  But even so, it is a myth worth fighting for.

If anything, this current fight is only round one, with a second partisan fight over legislative re-districting yet to come.  The Voter ID bill, which previously was viewed by Democratic leaders as a dangerous assault on their electoral power, now in comparison seems to be a minor inconvenience.  While it is always entertaining to watch two political parties seek to destroy each other, one can’t help but feel that someone in Madison should actually be focused on governing the State.  Both Governor Walker, who picked this partisan fight, and the Democrats, who chose to grind government to a halt in order to defend partisan interests, share equal blame in my eyes.

Who will win this fight?  At this moment, public opinion polling shows broad opposition to the idea of ending collective bargaining rights for public employees.  Joe Conason has a liberal take on the polling data in this post at RealClearPolitics.

Over time, one might expect that public pressure in favor of collective bargaining rights might cause Governor Walker to compromise.  However, much money is being spent on advertising to sway public opinion, and many media outlets have reported on this story in ways that seem designed to influence public perception.  It is possible (and intended) that these efforts will eventually cause public opinion to shift.  As usual, George Lakoff has an interesting take on how the language that both sides are adopting in this political debate may ultimately end up influencing the political outcome as much as (if not more than) the merits of the debate.   He writes at the Huffington Post.  Visiting Assistant Professor Rick Esenberg takes issue with Lakoff’s attempt to frame the debate in this post over at Shark and Shepard.  He sees nothing noble in the actions of the Democratic 14.  Meanwhile, David Sirota at Salon has a post that takes issue with the whole idea that any government in possession of the taxing power can ever truly be called “broke.”  Read too much of this kind of analysis, detailing the way in which words influence our political choices, and you are likely to conclude that George Orwell’s novel 1984 should be shelved in the non-fiction aisle.            

Several legal questions have arisen among all of the partisan bickering.  Mike Ivey at the Capital Times looks at the manner in which the budget bill transfers reserves from the segregated health insurance fund, and uses them to offset costs elsewhere in the budget, and asks whether this part of the bill is illegal.  It does look kind of like the transfer of segregated funds by Governor Doyle in the 2009 budget that was ruled illegal, although in this case the offsetting costs are at least related to health care.  Which is more important in the eyes of the law, that the segregated funds are not being used for their intended purpose, or that the alternative use of the funds is similar to the intended purpose?

Milwaukee City Attorney Grant Langley believes that the Budget bill unconstitutionally interferes with home rule.  As Associate Professor Paul Secunda explains at Workplace Prof Blog, the Milwaukee Home Rule Charter places restrictions on the state government’s ability to alter pension rules adopted by the City.  Rick Esenberg questions Langley’s analysis in a post here.

The most recent legal controversy concerns whether the State Senate has the power to order that Democratic Senators be taken into custody if they are found within Wisconsin borders.  At first blush, the State Constitution would seem to provide explicit immunity from arrest for members of the state legislature.  However, Jim Lindgren at the Volokh Controversy has parsed through the history and the precedent in posts here and here.  He has convinced me that the constitutional immunity does not apply in this case.  Elie Mystal is worried that an arrest is possible, and in this post at Above the Law suggests that Republicans might employ “Dog” the Bounty Hunter to track down the missing Democrats.  My advice to Dog:  don’t do anything without an arrest warrant from a judge.    

Finally, Paul Secunda wrote an opinion piece outlining the policy arguments in favor of our society’s recognition of collective bargaining as a legal right.  It appears in the Capital Times here.  I tend to agree with Professor Secunda that collective bargaining advances both societal goals and individual human rights.  Actually, I have no choice but to agree.  My father was a longtime member of the Maryland State Teachers Union.

He paused in mid conversation to plop a mint his mouth because “if I’m ever in the neighborhood, I always go to Real Chili.”

He poked fun at himself for being nervous when the cameras went on for his nationally-televised response to President Barack Obama’s State of the Union speech last week.  

He shrugged off talk of his political future. “When I look in the mirror, I see a broken nose and a widow’s peak. I don’t see a future president.”

But, during Rep. Paul Ryan’s “On the Issues with Mike Gousha” visit Thursday to Marquette University Law School, there was no mistaking that the Republican from Janesville regards himself as a key player in making the most crucial decisions the United States faces.

“What kind of country do we want? What kind of country do we want to give our kids?” he asked. He said if the federal government doesn’t make major changes in its spending habits, reining in the amount of debt it is incurring, coming generations will have lower standards of living and the accelerating federal debt will “swallow us down.”

Ryan is the new chairman of the House budget committee and one of the hottest figures in American politics. As budget chair, he is in a key shaper of what will happen in answering the questions he posed.

“Look, we’re cutting spending,” he said. “There’s no two ways about it.” And Ryan clearly is not going to be patient about when change will come. He is focused heavily on what can be done during federal budget process in the next several months, and he said he figures there is a window of about six months to work on issues before “the political silly season” of presidential campaigning kicks into high gear.

Ryan told Gousha he hoped he and other Republicans would be able to work on agreements with Obama and congressional Democrats on at least some important issues. “I really hope we get something done,” Ryan said. “We can’t do nothing for two years.”

He said some of the harsh descriptions by opponents of what he wants to see happen to federal spending are wrong.

“I’m a person who believes we need to have a safety net in this country,” the congressman said. People who are down need help. But, he said, if spending on programs such as Medicaid is not reduced to sustainable levels, the safety net will be shredded.

“My mom’s been on Medicare for 10 years,” he said, and he wants older Americans to have good health care – but, again, within the limits of what is financially realistic.

He said wealthier people should not receive Social Security payments that are the same size of those of less well-to-do people.

And when a man in the audience said he needs epilepsy medication that costs $3,000 a month and he was concerned that Ryan’s plan s for health insurance would leave him without coverage, Ryan responded he wanted to see people such as him have stable premiums that were allow them to keep their coverage. “Let’s have robust high-risk pools,” Ryan said.    

 In Washington, Ryan said, when you make proposals, such as the “Road Map” he first offered in 2008, you become the target of highly partisan attacks. But in general throughout the country – and he said Janesville is a good example — “I think people are ready for an adult conversation” about what federal programs and spending should look like.

He said he expected health care to be a defining issue in the 2012 elections. Asked by Gousha how people should sort out the competing claims about whether the health care law backed by the Obama administration would help or hurt, Ryan said, “Watch the results.” He said, “So far, the results are proving us right” when it comes to costs exceeding projections and the way private employers are reacting to the law.

For all his amiability in the hour-long session, Ryan described the 2012 elections in heavy duty terms.  

“This is going to be the biggest, most impactful presidential election in the history of current generations,” he said. “This is a huge election. I see at as sort of a realignment election. I see it as where America picks the path it wants for the rest of the century.”

Given that the election will come 88 years before the end of the century, that’s quite a thought.

To view a video of “On the Issues” with Rep. Ryan, click here.

Payne started his political career in 1872 at the most grassroots level – the Young Men’s Republican Club of Milwaukee County – as a volunteer for President Grant’s reelection campaign.  As a reward for his party service, he was appointed postmaster of Milwaukee in 1876 – this before civil service laws protected such positions from political patronage.  At one point, he told the citizens of Milwaukee, “As long as I am postmaster, I shall employ only Republicans if I can find those that are competent.”   When Democrat Grover Cleveland won the presidency in 1884, he promptly fired Payne as postmaster, labeling him an “offensive partisan.” 

Between administrations, he served as an executive for various prominent Milwaukee companies.  During that time, he served as a member of the Republican National Committee from Wisconsin.  When he was recruited for RNC chairman in 1896, he passed on the opportunity because his company had just been through a significant labor dispute that would have been a source of controversy.  Though without the title chairman, he was the moving force behind the committee in that cycle, managing things from the Chicago headquarters.  Joseph Babcock, chairman of the National Republican Congressional Committee and representative of Wisconsin’s third district, said of Payne’s work, “I was never able to broach a subject that he was not thoroughly posted on and he seemed to have as clear ideas as to matters coming under the jurisdiction of the Congressional Committee as he had of matters pertaining to his own committee.”

In 1900, following the successful presidential campaign of William McKinley, Payne took over as vice chairman of the RNC, where he led an effort to reapportion convention delegates based on Republican vote totals rather than congressional districts.  Two years later, President Theodore Roosevelt appointed him Postmaster General, at the time a cabinet-level post, though he remained RNC vice chairman.

In February of 1904, the legendary Mark Hanna, then a U.S. senator from Ohio and chairman of the RNC, passed away unexpectedly.  Under the rules, Payne as vice chair ascended to the chairmanship, a position he held until June of 1904, when a National Convention was held in Chicago and a new chairman elected.  Sickly during those summer months, he passed away shortly thereafter, on October 4, 1904.  His remains were returned to Milwaukee, and he is buried in Forest Home Cemetery.

He was eulogized by many friends from both sides of the aisle, in Wisconsin and across the nation.  Many of these salutes are collected in a hagiographical volume composed for his widow and available in full on Google Books.  I will close by selecting just one of the many praises offered, this from U.S. Senator John Spooner of Wisconsin at the closer of his tenure as Milwaukee’s postmaster: “Payne is a born leader of men, possessed of superb ability as an organizer of tireless energy, unwavering in his devotion to the principles of his party, unselfish and self-sacrificing in the personal services he yields to the cause in which he believes.  He deserves the gratitude of every Republican, as he has won the respect of every Democrat who likes a fair fight, and admires an opponent who deals hard blows, and takes them in return like a man.”

As Reince Preibus begins his tenure as chairman of the Republican National Committee, I look forward to seeing another Wisconsin man lead the party with energy, ability, and devotion.

 Having undertaken, for the glory of God and advancement of the Christian faith and honor of our King and country, a voyage to plant the first colony in the northern parts of Virginia, do these present solemnly and mutually in the presence of God and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, until which we promise all due submission and obedience.

 The Pilgrims fashioned this secular covenant to have an agreement for governance when they disembarked from the Mayflower. 

 The passengers onboard the Mayflower originally intended to go to the Hudson River in New York, but bad storms set them off course.  William Bradford recorded that the ship also “’fell amongst dangerous shoals and roaring breakers.’”  On that basis, the captain decided to back to New England, instead of going moving on to the Hudson. 

On board were two groups of passengers other than the crew:  the Leideners, who were the Pilgrims who had lived in Holland, and the Separatists, who had been recruited by merchants to travel to the new land.         

 The passengers were in an “uproar” when they heard that the Mayflower was heading to New England.  Some Strangers said that “’when they came ashore they would use their own liberty, for none had power to command them.’”  The future settlement was “in serious peril,” according to Philbrick.  The Strangers “had little holding them together except, in some cases, a growing reluctance to live in a community dominated by religious radicals.”  The Leideners were a tight group, sharing a common faith and background from having lived together in Holland.  Some of the Strangers and the Leideners realized that the only way to secure the settlement was to “sign a formal and binding agreement of some sort.” 

In the Mayflower Compact, the Strangers and the Leideners agreed “to submit to the laws drawn up by their duly elected officials.”  Philbrick writes that this “civil covenant would provide the basis for a secular government in America.”  All men who were healthy enough to set foot on land had to sign the Mayflower Compact and must do so before leaving the ship.  Forty-one men signed the Mayflower Compact on November 11.

 The passengers who drafted the Mayflower Compact had tremendous foresight.  The compact guided the actions of the two very different groups of people who came together to form the Plymouth settlement, especially in light of the hardship they endured in the coming months as they tried to survive the winter and establish their new home in the wilderness. 

Happy Thanksgiving.

GRADES: Would you give Ben Wallace a C? I wouldn’t give Ben Wallace a C. What possible good could come from giving Ben Wallace a C? EDGE: Ben Wallace

Amen to that!  By the way, given the strength of our sports law program, I hope Wallace will be giving Marquette a serious look.  And, as a defensive specialist, he shouldn’t mind too much that our local NBA franchise can’t seem to find the hoop.

Mystal’s post imagines Wallace heading to a lucrative big-firm job, which does point to the more serious issue addressed by my next post: the ease with which wealth can be used to generate more wealth, producing an inequality spiral in society.  

As the gap between rich and poor grows in the U.S., I find it fascinating that no serious political movement has emerged advocating a real redistribution of wealth in this country.  Yes, Democrats favor some policies that have (or would have) redistributionist consequences, but I don’t hear anyone anywhere near the political mainstream in either party advocating for direct, large-scale wealth redistribution, e.g., by restoring the top marginal income tax rates to what they were a generation or two ago.  Why is that?

Seeking to provide some answers to the question, Frank Pasquale has a fascinating post at Balkinization on the politics of inequality.  I found this passage especially intriguing:

Everyday experience also helps explain the trend. In Griftopia, Matt Taibbi interviews members of the US Tea Party. He reports that their views of government arise out of their interactions with officials at the IRS, DMV, TSA, zoning boards, or similar agencies: stressful, one-shot interactions with bored, inattentive, or hostile bureaucrats. They project that experience onto places like the SEC, CFTC, FCC, or Fed—assuming that the world of DC agencies is just as exasperating for the multinational corporations regulated by these agencies as local government is for them. They have little sense of the revolving door of high bureaucracy, where the regulators are often on the lookout for jobs at regulated entities. An IRS auditor has no prospect of one day working for a middle class auditee, but MMS staffers have often been smitten with the companies they inspect. (As one report puts it, “The cozy ties included workers who moved between industry and government jobs ‘with ease’— friends who’ve ‘often known each other since childhood.’”)

So a Tea Partier exasperated by DMV incompetence may vote for a party committed to making the MMS inspectors even poorer and more reliant on an eventual big payday at a company they regulate. Lower government wages will likely provoke the TSA/DMV/IRS crowd to be ever surlier to the public, while making the SEC/CFTC/FCC crowd ever more dependent on a big private sector payday. And so the cycle continues.

Pasquale identifies the implementation of the Dodd-Frank bill as a current example of how existing political dynamics diminish the extent to which regulatory initiatives are capable of restraining the inequality spiral:

[A]s Farrell notes, “There are many very influential organizations pushing the interests of business and of the rich . . . . [and] they typically trump voters (who lack information, are myopic, are not focused on the long term) in shaping policy decisions.” Already the implementation of Dodd-Frank appears to be going in this direction, as “3,659 lobbyists worked for companies that explicitly lobbied on the Dodd-Frank bill” in the first nine months of 2010. Over half of voters are unaware that the Republicans just won the House of Representatives; it’s hard to imagine them pressing either party for, say, better derivatives regulation.

Staying on the subject of Dodd-Frank, Jeff Schwartz has some interesting commentary at The Conglomerate on the regulation of hedge funds under the new law.  He is skeptical that registration requirements will actually do much to rein in hedge funds:

The idea that registration could help protect investors from fraud is reasonable.  It might deter fraud or make it easier to detect.  But the Madoff scandal gives reason for pause.  Madoff was registered as an investment adviser and his operations had raised red flags with the SEC.  Yet the agency failed to uncover the far-reaching misconduct.  What this shows is that registration alone is insufficient, and perhaps secondary.  More importantly, the SEC needs to right the ship in terms of enforcement.  If this happens, then perhaps the rule will prove to be a useful investor-protection tool.  While the Act does beef up the SEC’s powers in this regard, my intuition is that the problem is cultural rather than regulatory.

He concludes:

Rather than clearly reflecting any specific normative goal, perhaps hedge-fund registration is a populist response to the unease caused by the vast accumulation of capital in secretive, profitable, and risky endeavors.

Although there may indeed be some lingering feelings of fear and resentment towards wealthy private entities, Pasquale’s analysis suggests why populist fear and resentment of government agencies may be even greater.

It’s Halloween.  Time for my annual attempt at political satire (see last year’s effort here).  Apologies to Mary Shelly, Monty Python and Buck Henry.

Setting: A laboratory located in a decrepit castle in Eastern Europe.  Test tubes and electrical transformers fill the room.  Outside, a thunderstorm rages.  The year is 1789.

Dr. Madison: It’s alive!  It’s alive!  They all called me “mad,” but I have done what no man has done before!

Igor: Master, what is this creature?

Dr. Madison: I have transplanted the brain of John Locke into the body of the Magna Carta.  I engrafted bits and pieces of Montesquieu, and gave the body a transfusion of Polybius’ treatise on the Roman Empire.  Then, I immersed the body in a vat of the Iroquois Constitution and applied a charge of electricity.  And it lives!  This is a great day!

Igor (looking out the window): I don’t think everyone agrees with you.

A large mob of men carrying torches bursts into the laboratory.  They are dressed in simple peasant attire except, oddly, all are wearing safety goggles.

Peasant Number 1: There it is boys!  Kill it!  

Dr. Madison: Destroy my creation?  Why?

Peasant Number 1: Your creature is bleeding our poor village dry.  It taxes everything we have, and it will continue to tax our children and our children’s children.

Peasant Number 2: And our children’s children’s children.

Peasant Number 1: What?

Peasant Number 2: And our children’s children’s children.

Peasant Number 1: Don’t belabor the point. And what has it ever given us in return?

Peasant Number 2: Rural electrification.

Peasant Number 1: Oh yeah, yeah it gave us that. Yeah. That’s true.

Peasant Number 3: And the Centers for Disease Control to maintain public health.

Peasant Number 2: Oh yes… controlling infectious diseases. That’s a good thing.

Peasant Number 1: All right, I’ll grant you that rural electrification and the CDC are two positive things that the creature has done…

Peasant Number 2: And the interstate highway system…

Peasant Number 1 (sharply): Well yes obviously the interstate highway… the roads go without saying. But apart from rural electrification, the CDC, and the roads…

Peasant Number 3: The G.I. Bill …

Other Voices in the Crowd: Social Security … NASA Technology… University Research…

Peasant Number 2: And national security.

Peasant Number 1: All right… all right… but apart from rural electrification, the CDC, the interstate highways, the G.I. Bill, Social Security, NASA technology, university research and national security … what has the creature done for us?

Peasant Number 3: The Civil Rights Act and the Voting Rights Act!

Peasant Number 1 (very angry): What!? Oh… (scornfully) civil rights … shut up!  It’s time we got up off our butts and took back our village!

The peasants begin torching the laboratory.  Flames spread as the equipment crashes to the floor. 

Dr. Madison: You can’t destroy my creation! You need him.  What will you replace it with?

Peasant Number1:  What will we replace it with?  You want to know what we will replace it with?

Dr. Madison: Yes, sir.

Peasant Number 1: Just one word. Plastics.

Cue dramatic music.

Neither directly answered the question from Gousha, the Law School’s Distinguished Fellow in Law and Public Policy. But Tate came closer.  You have to have to draw contrasts with your opponent, he said. And when one campaign launches an ad that is arguably negative, “it’s an arms race,” Tate said.  If you don’t respond, you risk losing. Voters remember negative ads, Tate said.

Priebus responded by criticizing Democratic campaigns for playing what he called “small ball” this fall, focusing on minor matters that they could use to attack Republicans instead of on major issues, like jobs, the economy, and the growth of government spending.

What neither said to Gousha’s question was, yes, you can win by staying positive.  

Also on Tuesday, Matt Lauer, host of NBC’s “Today” show, asked the major candidates for governor in California if they would agree to stay positive in their commercials for the last few days of the campaign. The audience at the event reacted with enthusiastic applause. But Republican Meg Whitman and Democrat Jerry Brown hemmed and hawed, and neither agreed. Why? Because that’s not the strategy either of their campaigns thinks is best for the homestretch.

One thing that’s clear from this highly combative political season in both Wisconsin and the nation is that the wisdom and/or necessity of going for the opponent’s perceived weak spots is one thing Republicans and Democrats agree on. They both do it; they’re going to keep doing it; and, as independent spending on advertisement skyrockets, the organizations that have joined in the fray are even more oriented to it.

Feel free to complain about the tone of the campaigns (I do). But ask yourself what ads stick in your own mind or seem to have influenced public opinion, best as you can tell. It’s not so likely that the kinder, gentler ads are the honest answer.

Meantime, a few other thoughts from Tate and Priebus at the Law School:

Priebus, after Tate talked about how he was optimistic about the chances of Democrats in next Tuesday’s election: “Mike’s a lot like I sounded before the ’08 election. . . . I know what it’s like to get killed in an election. I know what it’s like to put on that smiling face before walking off a cliff.”

Tate, after Gousha asked if Tom Barrett, the Democratic candidate for governor, would get 60 percent of the vote in Milwaukee County, considered by some a requirement for a Democrat to win a statewide race:  “The ultimate challenge” for Barrett is how he will do in the Milwaukee and Green Bay areas. But, Tate said, Barrett is running strong in Milwaukee County and is likely to hit the 60 percent mark.

Priebus:  “The party that wins is the party that has the enthusiasm from the ground up, not manufactured from the top down.”

Tate:  “We have seen a closing of the enthusiasm gap.”

Priebus:  “The Mark Neumann voter is certainly not going to be a Tom Barrett voter and there aren’t going to be an awful lot of Republicans staying home.” Republican candidate Scott Walker beat Neumann in the September primary, but Neumann outpolled Walker in much of western Wisconsin.

Tate: The publicly-released polls are under-sampling young voters and cell phone users. One of the big challenges in telephone polling today is that so many voters 35 and under do not have conventional land line phones. Polling he has seen that includes more cell phone users is more favorable to Democrats.

Priebus: “Trends matter. I don’t see any trends away from Republicans right now.”  Tate, he said, was grasping for straws.

The obvious starting point might be Butch Cassidy’s (or Paul Newman’s) famous question, “Who are those guys?”  Amy Gardner at the Washington Post tries to answer that question here (hat tip to Steven Easley).  Despite her best efforts, a definitive picture of the Movement remains elusive:

[A] new Washington Post canvass of hundreds of local tea party groups reveals a different sort of organization, one that is not so much a movement as a disparate band of vaguely connected gatherings that do surprisingly little to engage in the political process.

The results come from a months-long effort by The Post to contact every tea party group in the nation, an unprecedented attempt to understand the network of individuals and organizations at the heart of the nascent movement.

Seventy percent of the grass-roots groups said they have not participated in any political campaigning this year. As a whole, they have no official candidate slates, have not rallied behind any particular national leader, have little money on hand, and remain ambivalent about their goals and the political process in general.

Jonathan Haidt does some psychoanalysis of libertarians, liberals and conservatives, and tries to show that it is not a love of liberty that unites Tea Partiers, but rather a belief in karma:

The notion of karma comes with lots of new-age baggage, but it is an old and very conservative idea. It is the Sanskrit word for “deed” or “action,” and the law of karma says that for every action, there is an equal and morally commensurate reaction. Kindness, honesty and hard work will (eventually) bring good fortune; cruelty, deceit and laziness will (eventually) bring suffering. No divine intervention is required; it’s just a law of the universe, like gravity.

The whole article is at the Wall Street Journal.  I am not sure that I buy the argument, but the image of Sarah Palin wearing a sari and banging a tamborine is an appealing one. 

The issue that seems to unite the Movement more than any other seems to be the Obama administration sponsored Affordable Health Care Act.  Litigation over the individual mandates contained in the legislation is being closely watched.  Theresa Weisenberger gathers the cases and issues in one location over at the JET Law Blog (the Vanderbilt Journal of Entertainment & Technology Law).  Meanwhile, over at Balkinization, guest bloggers Gillian Metzger and Trevor Morrison provide constitutional commentary.  Their opinion of the Florida District Court case:

In short, the court’s declaration that the individual mandate cannot be deemed an exercise of Congress’s tax power is built upon a hostile reading of the record. If the presumption of constitutionality means anything, surely it is that in areas not subject to a Supreme Court-mandated clear statement requirement, courts should give Congress the benefit of the doubt.

Meanwhile, the issue of immigration seems to confound the Tea Party.  Stewart Lawrence at the Daily Caller examines the contradictions in this post:

Will the Tea Party Movement expand beyond the borders of the United States and become an international movement?  Anna Leutheuser at the Heritage Foundation thinks it will:

The principles that precipitated the first Tea Party – a respect for the rule of law, and desire for limited government and individual liberty – are universal; and they are just as threatened now as they were at the time of the American founding.  This time, however, the United States is not alone in coming to their defense.

Finally, we go back to Balkinization to give Jack Balkin the last word on the Tea Party Movement: 

What changed during the 1960s and afterwards was the creation of a New Right, and the joinder of social conservatives, business conservatives, anti-welfare state conservatives, anti-regulatory conservatives, anti-tax conservatives and foreign policy conservatives. That alliance made it possible for the rich and for corporations to bankroll a wide range of conservative causes, in the belief that a rising tide (of anger) would lift all conservative boats. Corporate interests could ally themselves with the Republicans’ form of populism as long as social conservatives would keep voting for candidates who would favor business interests and seek to lower taxes on the wealthy and corporations.

This basic feature of modern American conservatism has not really changed with the emergence of the Tea Party, even though the Tea Party presents itself as a new form of political organization, alienated in part from the mainstream of the Republican Party. The Tea Party, however differently it may be organized, is just the latest incarnation of the most conservative elements of the late 20th century conservative coalition, this time featuring a special emphasis on opposition to the size of government and government taxation. That emphasis makes the Tea Party a natural object of corporate support, albeit mostly hidden corporate support, because many in the Tea Party also are not that fond of the Wall Street bailout either.

That’s all for now.  As Craig Ferguson says, “I look forward to your letters.”  Please remember our comments policy:

We hope that this blog will be a robust forum for civil and well-informed discussion of important issues and ideas. To that end, we welcome the submission of comments from readers in response to posts. We reserve the right not to publish comments based on such concerns as redundancy, incivility, untimeliness, poor writing, etc. All comments must include the first and last name of the author and a valid e-mail address.

If Tuesday’s “On the Issues with Mike Gousha” program at Eckstein Hall had been a meeting of foreign diplomats, the statement afterward would have described the session as “cordial but frank.”  Two of the most prominent Wisconsin voices in the debate about whether to and how to regulate money spent on political campaigning presented their views with wit and warmth, but with no masking their widely different positions.

Heck, executive director of Common Cause Wisconsin, said elections in Wisconsin and nationally had devolved over the last several decades and regulation of election spending was a matter of restoring confidence in the political system.

Esenberg, a professor at Marquette University Law School and an attorney involved in a case currently challenging regulatory plans in Wisconsin, did not accept that the damage being done by current levels of spending was so serious. Limiting free speech related to elections presents, among many things, a constitutional problem and is a bad idea that often has unintended negative consequences. 

The two appeared to be close to agreement on one thing: Disclosure of who funds political advocacy is a good idea, provided it is focused on those engaged in large scale efforts such as television ad campaigns.

Esenberg said Wisconsin law as it stands requires anyone spending more than $25 to register as being involved in political activity, which he said covered people who paint a political sign on the side of a barn or engage in other small-scale activities.

Heck said no one wants to enforce or is enforcing the law against those spending small amounts, although Esenberg said he knew of a case in which people who had spent $100 on food for an event ended up nearly being prosecuted. Heck said the focus of attention is on those spending large amounts.

Esenberg said some disclose laws were actually aimed at stopping advocacy. “I think disclosure is fine as long as the purpose is disclosure,” he said.  

Heck said the public has lost confidence in government as campaign spending has soared, and many people believe the legislative process can be bought by those spending the most money. In Wisconsin, he said, $2.8 million was spent on campaigning for governor in 1986, including the costs for both major candidates. About $50 million will be spent this year, with about 60% of it coming from groups not directly connected to either major candidate.

“I am very concerned about the effects, the corrupting influence of the money,” Heck said. He also said the negativity of campaigns has increased in recent election cycles.

Esenberg said “Negative campaigning has been with us always and will be with us always.” He said it is just part of the process and that, overall, allowing speech to be as free and unfettered as possible was the best course. The amount spent on political campaigns, including advertising, is a small fraction of what is spent on consumer advertising, he said.

Heck said, “It’s human nature to be beholden and to feel good toward those who have helped you,” and politicians inevitably favor those who make large donations to their campaigns. That creates the need to regulate spending and especially to disclose who is behind spending. Many of the independent advertising campaigns under way currently are run in ways that allow for funders’ identities to be kept secret.

Esenberg said he agreed with Heck that it is human nature to favor those who give you something, “but that’s part of the process” of politics, he said. “I become concerned that the cure is worse than the disease,” he said. Esenberg said there is a lot of evidence that campaign spending actually influences very few people.

The program was one of several election-related sessions scheduled to be moderated by Gousha at Eckstein Hall before the Nov. 2 election, including debates between candidates for U.S. Senate, governor, and attorney general. The chairmen of the Democratic and Republican parties also are scheduled to make a joint appearance.

Taking pride of place among the “long-ago texts” highlighted in the article is Friedrich Hayek’s 1944 book The Road to Serfdom.  Hayek is often cited by the movement’s followers for his argument that a government that intervenes in the economy will inevitably intervene in every aspect of its citizen’s lives.  If one accepts this premise, it is easy to understand why members of the Tea Party Movement reacted with hostility to the Troubled Asset Recovery Program (TARP), health care reform, and the bailout of the domestic auto industry.  For Tea Party followers, these separate policies – when viewed together — comprise a centrally planned economy reminiscent of the Soviet Union’s infamous Five Year Plans.

As I have explained elsewhere, some of Hayek’s devotees even argue that we should interpret the Constitution’s Commerce Clause as if the founders of our nation sought to maximize market competition free from government restraint along the lines of Hayek’s theories.

Defenders of the federal government’s intervention in the economy rely upon their own “long-ago text,” the writings of John Maynard Keynes.  Keynes argued that counter cyclical public spending could be used to counteract economic downturns.  His theories hold that in times of high unemployment the government can use deficit spending in order to stimulate demand (i.e., through public works projects) and that this spending will increase employment.

While Hayek and Keynes have traditionally been placed at the two ideological extremes of economic theory, the views of both men suffer when their major premises are exaggerated by their followers.  Keynes himself admitted that his views evolved over time and that he no longer agreed with some of his writings.  It is fair to say that Keynes was something of a slippery target when it came to being pinned down on specifics.

Some evidence that the views of Keynes and Hayek may not be as diametrically opposed as their followers often allege can be seen in the letter that Keynes wrote to Hayek after the publication of the The Road to Serfdom.  In the letter, Keynes claims to agree with almost everything that Hayek wrote.  In fact, several complimentary sentences from the letter were used as a blurb on the back cover of the paperback edition of Hayek’s book.     

Essentially, Keynes agreed with Hayek that a completely centralized economy would be undesirable, while noting that Hayek himself accepted some forms of government regulation as permissible.  His main criticism of The Road to Serfdom was that Hayek never explained how much government regulation was too much regulation:

You admit … that it is a question of knowing where to draw the line. You agree that the line has to be drawn somewhere, and that the logical extreme is not possible. But you give us no guidance whatever as to where to draw it…. As soon as you admit that the extreme is not possible … you are, on your own argument done for, since you are trying to persuade us that so soon as one moves an inch in the planned direction you are necessarily launched on the slippery path which will lead you in due course over the precipice.

(This famous portion of Keynes’ letter is quoted in an excellent 2006 essay by Robert Skidelsky which, among other strengths, draws interesting parallels between Hayek and George Orwell).

Hayek attempted to answer Keynes’ question on where to draw the line with his book The Constitution of Liberty published in 1960.  It is this book, more than The Road to Serfdom, which strikes me as a major influence on the intellectual arguments of the Tea Party Movement.  It is difficult to read The Constitution of Liberty today without observing the many ways in which its arguments have been carefully extracted and used to deny that the federal government has any legitimate authority to regulate health care or the financial markets.

[As someone who teaches Constitutional Law, Securities Regulation, and Immigration Law, I would be greatly pleased if Hayek used his opposition to excessive government regulation of the economy as a basis for criticizing government control over immigration.  Had Hayek advocated in favor of open borders, as some of his self-professed followers have subsequently done, then I could critique his theories across all three of my primary teaching areas.  Alas, Hayek defended the role of the government to pick and choose among potential immigrants as a means of favoring persons who (government planners believed) would be more likely to acculturate.  By waffling on immigration, Hayek deprived me of a consistent theory that would tie all three of my subjects together.] 

Perhaps because Hayek is forced to be more specific in outlining his theories in The Constitution of Liberty, rather than relying upon generalities as he did in The Road to Serfdom, I do not believe that the later book has aged as well.  Lest anyone be tempted to stop reading immediately on the grounds that any critic of Hayek must be blinded by a “liberal bias,” I will link here to a critical review of The Constitution of Liberty by Jacob Viner, an economist often cited as having helped to inspire “the Chicago School” of economics theory.

In my opinion, Hayek’s weakness is that he sees the world he lives in very clearly, but that he errs in deriving eternal principles from what is in essence a transitory stage in the evolution of global markets (of course, one could criticize Karl Marx on the same basis).

For example, he argues that an economy that develops free of government control will naturally come to incorporate beneficial social arrangements, through the free choices of its participants.  These naturally occurring arrangements will of necessity be preferable to state-planned social arrangements, he argues, because state planners will never have information regarding the wants and needs of the public that is comparable to the information available to market participants.

Of course, we now appreciate the fact that the economy of the United States during the 1950s blithely supported tobacco companies and industrial polluters who were imposing unseen and long-term health costs on the population (call this the “Mad Men” economy).  The regulation of tobacco products by the federal government, and the passage of the Clean Water Act and the Clean Air Act, constituted significant restrictions upon the free choices of market participants.  We are all better off because of these government interventions.  Would a similar result have occurred without government intervention?

Similarly, Hayek argues that the economic progress of the masses is only possible if we allow an elite minority to amass significant material and financial wealth.  He argues that economic progress occurs when a small vanguard stimulates demand for material goods among the broader population, who naturally desire the comforts that they observe the elite enjoying.  The increased demand will lead to a greater production of material goods and more jobs for the masses, which will allow an increase in wealth to expand throughout the society.  Hayek’s economic “story” only works, however, if the increased production jobs stay in the United States.  When companies ship production jobs overseas, it is the living condition of foreign workers that gets raised and not domestic workers (call this the “Outsourced” economy).

Most importantly, Hayek’s argument that optimal social benefits can result from an evolutionary process of free competition amongst firms, rather than through central government planning, elevates gradualism over decisive government action.  This leaves us with no options when financial markets seize up, short-term credit becomes unavailable, and, in the memorable words of John McCain, “the economy is about to crater.”  It may be true that the existing system of financial regulation has failed to keep pace with changes in the marketplace and with a growing element of systemic risk among inter-connected markets.  I believe that regulation needs to change and evolve in response to changes in the industry that it oversees.  However, even conceding the inadequacy of current law, it is difficult to see how the complete absence of financial regulation would have prevented the Financial Meltdown of 2007.       

Hayek’s observations on the risk of centralized government planning were timely in the face of the rising influence of the Soviet Union and China as viable economic models.  His focus on the expansion of material wealth in the United States as an example of the benefits of mildly regulated competition is, in retrospect, an example that reflects the post-World War II boom domestically and the shambles of Europe’s post-war economy.  Hayek made important contributions to our understanding of economics, of course, but many of the arguments that his followers have adopted as undeniable truths seem to me to be inextricably linked to their particular time and place.

By the end of The Constitution of Liberty, Hayek reveals himself to be much less of an absolutist in defense of unregulated competition than his followers.   This should come as no surprise.  In the Road to Serfdom Hayek telegraphed his acceptance of a state role in regulating the economy.  Far from advocating a laissez faire approach to regulation, Hayek actually justifies a role for the state as the enforcer of a legal framework designed to control competition – he defends laws that mandate safe work environments and minimum wages, defends laws that prevent polluters from externalizing their costs onto their neighbor, and defends laws that penalize fraud and deception.  He argues that state regulation is legitimate if it promotes competition, and illegitimate if is it is designed to stifle competition.  It turns out that there is some middle ground between Hayek and Keynes after all.

One of the arguments in favor of health care reform and financial markets reform is that the prior legal regimes did not prevent market participants from externalizing their costs onto others.  We can argue over whether that is true or not, and over whether the legislative reforms enacted under the Obama administration do a better or worse job of forcing competitors to internalize their costs, but it is a misreading of Hayek to argue that the very attempt to regulate the market is mistaken.

In fact, as I read The Constitution of Liberty, Hayek would likely have agreed with Theodore Roosevelt, who wrote the following about the industrial age in his Autobiography:

[A] few men recognized that corporations and combinations had become indispensable in the business world, that it was folly to try to prohibit them, but that it was folly to leave them without thorough-going control . . . They realized that the government must now interfere to protect labor, to subordinate the big corporation to the public welfare, and to shackle cunning and fraud . . .

Yet somehow Friedrich Hayek has come to symbolize an extreme form of hostility towards government economic regulation.  As often happens (see, e.g., Adam Smith), Friedrich Hayek has become more important for the principles that he supposedly stands for than for what he actually said.