Paul Soglin: Waxing America

U.S. Supreme Court Engages in Activism: Ask Scalia

One of the phoniest, opportunistic ploys in recent years is the conservative assault on an independent judiciary calling for "judicial restraint" and attacking liberal or progressive justices as "judicial activists."

Rick Esenberg of the Federalist Society, takes this up in a paper used by Wisconsin Manufacturers and Commerce in the last judicial race, A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court:

Judges who seek to exercise restraint will tend to adopt techniques of construction that confine, rather than expand, their discretion...Judges practicing restraint will exhibit a sensitivity for the role of other branches of government....

Someone better get Esenberg's paper into the hands of the justices serving on the United States Supreme Court, starting with Anthony Scalia who Esenberg fondly quotes: "[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."

Scalia, Justice Anthony Kennedy, and Chief Justice John G. Roberts Jr. are having a difficult time following their own admonitions when it comes time to the "Millionaire's Amendment" to the McCain-Feingold campaign finance act.

The issue is simple enough. Under the law individuals can contribute a maximum of $2,300 to a campaign. The candidate can spend as much as they like. If a wealthy candidate contributes over $350,000 of her own money, then the individual contributors of the opponent can go as high as $6,900.

Simple enough.

Now enter the reactionary justices on the Supreme Court. Hearing a case challenging the act, these conservative justices are wallowing in judicial activism.

Justices Assail 'Millionaires' Amendment'

"The campaign finance regimes we've approved up to now, the significant limitations, have had an anti-corruption rationale," Scalia said. "The only purpose of this is to level the playing field. And I am deeply suspicious of allowing elections to be conducted under a regime whereby Congress levels the playing field. That seems to be very dangerous."

and

Justice Anthony M. Kennedy said he found it "a particular vice" of the amendment that it allows the opponent of a self-financing candidate to have greater ties and to receive more money from his political party. "It puts this statute in the position of preferring one kind of speech over another. And we simply do not do that," Kennedy said.

Obviously these justices are substituting their own judgment for that of the legislative body, the United States Congress.

I am waiting for the critics of Louis Butler and Shirley Abrahamson to assail Scalia and Roberts for this exercise in judicial activism.

You can hear the crickets chirping.

Free Tibet Madison Style: The Real Olympic Spirit

I will not be in Madison on Saturday, April 19, 2008,  but if I were, I would be at the State Capital for the rally to focus on Chinese oppression against the people of Tibet.  Among the sponsors are Students for a Free Tibet - UW Madison.

Until a family event sent me off to California for the weekend, I was supposed to join State Representative Joe Parisi and Wisconsin Olympian Casey FitzRandolph.  They will be apart of a different torch relay, the Human Rights Torch that is part of coordinated effort in 37 countries to publicize the incompatibility of Chinese crimes against all of its citizens, not just Tibetans, and the true spirit of the Olympics.

Casey is a great athlete, one who truly understands the nature of humanity in all aspects of life. There are too many people who like to use sports metaphors to draw lessons about life. Casey lives the best of the competitive world both on and off the ice.

We all know that the commercialism of the Olympics far overshadows the games. The athletes deserve to demonstrate their skills with honor, but are relegated to the status of doorknobs or garden rocks serving to enhance the mansion and the landscape, the corporate sponsors and their products.

My guess is that most Americans could select more official sponsors of the Olympics from a a list of hamburger, camera, and automobile companies than could identify the athletes who won medals last time in aquatics, archery, boxing, or even tennis.

Back in the day when the Internet was in its infancy, the only web page that came up when you put my name in a search engine was: The Mayor of the city of Madison, Wisconsin Proclaims March 10 1996 as "Tibetan Independence Day"

It was an honor to participate then; it is an honor now to be part of this world wide humanitarian effort. Tibetan rights and lives are more important than these games.

Someone get Casey's autograph for me. Please.

Overture's Problems Start With the Structure

It is not a surprise that the Madison based Overture Center is in financial trouble. Anyone who follows the stock market would suspect that the first quarter of the year was not kind to the trust fund established by benefactor Jerome Frautschi. The Capital Times noted Overture trust fund falls below $100M:

Frautschi, whose original $205 million gift to the city was the foundation for the world-class arts facility, agreed to fund the center's debt service if the amount of the trust fund dipped below $100 million. At the end of March, the fund stood at $98.9 million, down from $106 million at the end of 2006.

There is a group of civic leaders who will meet on their own time at their own expense to work on the problem:

A group of Overture patrons is in the process of organizing a panel with expertise in financing and public funds to come up with recommendations to tackle Overture's financial woes. Mark Bugher, former state Department of Administration secretary and current director of the University Research Park, said he was asked to get the effort off the ground.

That is a sound contribution to the community, but it does not get at the inherent problem, the structure of Overture. It is neither fish nor fowl, nor mammal for that matter. Cobbled together to meets the needs of a community that wanted Overture, but with no government wanting responsibility, the structure is not conducive to day to day management nor for long range planning.

There is no chief executive responsible to the public for the management of the facility. There is an executive director, who reports to a board, but the board is neither elected itself, nor do they report to any one chief executive.

The staff is hired by one agency, the city who handles hiring and firing. But that staff is directed, not by the city, but rather Overture.

None of this really makes sense.

Any long range solution to financial or management problems will come with an improved structure.

If Jimmy Jumped Off the Bridge, Would Rick Berg?

Rick Berg has a problem.

He is out of sorts over the "anti-smoking Gestapo" pushing a state wide smoking ban in Wisconsin, while the same forces oppose a conceal and carry.

Rick takes exception to the everyone is doing it argument, "Several upper Midwest states have enacted statewide smoking bans, so apparently it's now our turn."

Berg figures that if the everyone is doing it argument holds for banning smoking, then it should apply to the carrying of concealed weapons issue.

It is a sloppy argument since the everyone is doing it argument contains an unarticulated premise. The full implication is that if everyone is doing, it concludes with the inference that the action is wise.

If we look at the states that banned smoking, the conclusion is sound. There is no appreciable economic displacement and air quailty conditions in public places is infinitely improved and will provide long term health gains to the denizens.

If we look at the states that enacted conceal and carry, the conclusion is also sound -conceal and carry is bad. There is no appreciable increase in public safety, and in fact in many of the states, starting with Florida, the long term heath of the denizens is worsened.

As for jumping off bridges, the jury is still out. 

Jump, Rick, jump.

Lack of State Support Hurting Students, University of Wisconsin System

This week the University of Wisconsin System Board of Regents are meeting. A major issue on the table is tuition, including plans to vary tuition based on campus attended, family income, and adjusting aid formulas. Milwaukee Journal Sentinel: UW System to look at tuition restructuring

An advisory group recommended Thursday that the University of Wisconsin System Board of Regents consider new ways to increase tuition revenue at a time when less of the system's funding comes from the state.

I recently read where a financial advisor said that paying off student loans has changed since I went to school. My generation had a reasonable expectation of ending the debt within five years of graduation; this generation has to treat the student loans like a mortgage with a twenty year payoff.

Which brings us to the central point. State government is reducing its participation, driving up the cost to students, driving down faculty salaries, and deferring plans for needed improvements.

In recent months I met with many business leaders from throughout the state. They echo or paraphrase what Northwestern Mutual Insurance CEO Ed Zore said some time ago, "The issue is not taxes, it is workforce development."

Here are facts to consider- this is not just about tuition, but the impact on the entire UW System budget:

• In the early 1970's the state provided 50.7% of the budget for the UW System. In 2006-07 that number dropped to 24.2%.
• As the MJS reports, "A quarter of Wisconsin residents 25 and older hold bachelor's degrees, a figure that lags behind Illinois and Minnesota. "
• UW-Madison faculty salaries are among the lowest in the Big Ten. Combined with the refusal to provide health care benefits to domestic partners, a nominal cost, it is difficult to recruit and retain the best professors.
• College graduates more than repay the cost of their education, because the taxes they pay back as a result of their greater earning power are more than twice that of a high school graduate.

Wisconsin Manufacturers and Commerce Peddling Junk...To Own Members

For some time Wisconsin Manufacturers and Commerce (WMC) peddled junk to the people of Wisconsin. With no regard for an accurate portrayal, WMC unloaded reams of press releases with misleading claims that did not fairly portray government revenues and spending, the desires of the Wisconsin business community, and now, the decisions of the Wisconsin Supreme Court.

The problem with peddling junk, be it junk science or junk economics, is that you may start to believe it yourself. Even more severe are the consequences if your friends discover you mislead them.

Trust is everything. Poison the environment with dishonesty and misleading information, and there is no trust. Without trust people cannot work together.

For a month WMC touted a series of workshops around the state designed to undermine the candidacy of Supreme Court Justice Louis Butler. This traveling road show started in Madison and moved to Wausau, Green Bay, Milwaukee, and made its fifth of six appearances in La Crosse Wednesday morning.

There was a problem along the way. WMC leadership assured its members there was little downside to their participation in trying to buy another Supreme Court seat.  After all, the Annette Ziegler triumph last April over Linda Clifford was simply smashing.

Only WMC's name appeared on the ads. Member businesses who were responsible for raising the money, purchasing the ads and the content of the ads would never be seen.

This was very important to WMC members who sell to consumers.

Something went wrong along the way. Three weeks ago pickets showed up as part of the WMC Watch* program for which I am paid. Pickets appeared at the WMC office in Madison; in other cities it was a chamber of commerce office and a hotel.

This week the workshop was scheduled for the Onalaska clinic site for Gundersen Lutheran.

Suddenly Gundersen bailed. There were quick and frantic phone calls. The bottom line is that the workshop would not be held at Gundersen no matter what.

The last thing they needed was pickets showing up. That meant questions - questions from physicians who were partners in the clinic, questions from staff, and certainly questions from patients.

Gundersen Lutheran in many ways is a progressive organization. I admire their CEO who sits on the WMC board, but he was sucked into the WMC program to get rid of Justice Louis Butler.   

The WMC staff  are the ones who violated the members' trust in both style and substance. The CEO from Gundersen and every other business have a right to know why they were misled as to the consequences and the importance of attempting to buy the Supreme Court.

So does the rest of Wisconsin.

In the coming weeks Waxing America will slowly and carefully peel back the skin of the onion. We will focus on statements and reports from WMC which may even in some ways be factual, but which distort and misinform.

*Another organization is about to use the name WMC Watch. For that reason I am going to modify the name of the program I created. I have yet to select a new name. Stay tuned.

Last Night's Dream: Bus Driving in Seattle While Lost

I woke up this morning with one of those recollections of a dream as clear as reality. I was a bus driver. In Seattle.

I was lost and could not find the route. I drove around the city trying to get on course.  Every time I passed a bus stop with large crowds, they grew angry when I failed to stop and pick them up.

I wanted to alter the destination sign on the front of the bus but did not know how to operate the gizmo that would allow me to change it to "Not in Service." There was no radio so I could not call the dispatcher to get help.

Seattle was very hilly with narrow streets and the bus kept getting wedged in between the buildings.

This dream and the bowling alley dream seem to stand out.

Two armies were fighting a war in a bowling alley. But they were not bowling against one another. They took turns bowling and lobbing the balls down the lane at the opposing army that stood in front of the pins. The soldiers on the defense had to stand in front of the pins and dodge the bowling balls.

The bowling balls were bombs.

Anyone know what is going on?

Dave Zweifel Peers Into Wisconsin Manufacturers & Commerce

As the Supreme Court election in April nears, more and more questions are raised about the role of Wisconsin Manufacturers & Commerce (WMC) in that race.

We all know that WMC is set upon pouring between $2 and $4 million into the effort of challenger Michael Gableman to defeat distinguished jurist Louis Butler.

WMC is just one of many organizations that is going to purchase issue ads on television. But there is a difference among those groups.

Dave Zweifel writes in The Capital Times today, Shining the Spotlight on WMC

Everyone knows that when WEAC, the teachers union, buys attack ads, the money comes from individual state teachers who contribute to its campaign chest...

But who is behind the massive WMC war chest? No one knows for sure and it isn't telling. The result is that some of the state's biggest business and corporate names can conveniently hide their names... Or does all this money come from some other mysterious sources?

There are rumors that some of the money comes from large corporations like Wal-mart, or the United States Chamber of Commerce, or organizations like The Institute for Legal Reform, a front for the US Chamber. There is no way of knowing for sure since WMC will not disclose even the smallest details such as how much of the money they spend comes from out-of-state sources.

The Capital Times is not alone:

• The Wausau Daily Herald: Our Legal System Shouldn't be for Sale:...the Wisconsin Democracy Campaign's calculations, almost $6 million was spent -- most of it by special interest groups, and $2.2 million of it by one group alone. Wisconsin Manufacturers and Commerce, which represents businesses and chambers of commerce, buried television stations with that much cash...

Isthmus: CUNA Mutual Land Deal Debated. UW Screwed?

In the early 1980's, faced with the threat that an expanding CUNA Mutual could leave the city of Madison, civic, political, university, and business leaders gathered. It was decided that the University of Wisconsin Research Park would sell 60 acres to CUNA Mutual for the company's expansion.

With new technology, downsizing, and outsourcing, CUNA Mutual no longer needs the land for expansion.  The UW Research Park is bursting and the UW would like the land back and is willing to pay. Now CUNA Mutual plans to develop the land as housing and a shopping mall.

From Isthmus, Madison's weekly newspaper,

CUNA Mutual plans draw flak: Company to develop land provided for expansion

CUNA Mutual Group is planning a major mixed-use project on and around its west-side Madison campus, reopening old wounds over how some of this land was acquired...

..."Back in the early 1980s," he says, "the entire community — the city of Madison and the university — did the right thing to help CUNA Mutual, thinking of the greater good. Now that the university would like the land back, CUNA Mutual is only looking at one thing: how it can maximize the value of that land to CUNA Mutual. There is no consideration for the larger community."...

Two relevant points:

• While CUNA Mutual and the University of Wisconsin do plan a swap of land, that is not the first choice of the UW, or the choice that is in the best interest of the greater community.
• CUNA Mutual's Rick Uhlmann makes the point that

...the company's land buys in the early 1980s provided critical "seed money" to the research park. It (CUNA Mutual) acquired the land "not just for expansion" but also as an investment...

Ullmann must think that you and I are the dimmest rubes since the Russians sold Alaska. The UW only sold the property because of the threat of CUNA Mutual leaving. The so called 'seed money' may have helped in the early years, but it was not necessary or desired. Otherwise the UW would have sold acreage at public auction and raised some real money.

Of course the UW never intended to sell the property in question to CUNA Mutual or anyone else for 'investment' purposes.

CUNA Mutual owns the land. They paid fair dollar for it, though they never had to compete in the open market to pay for the purchase of public  property - they got a deal.

CUNA Mutual has every right, within the law and the zoning codes, to do with that property as they see fit. But their handling of this matter makes it clear that they do not approach this issue with the same civic concern that led them to its ownership.

Disclosure: I am a paid consultant working with OPEIU Local 39 which represents the organized employees at CUNA Mutual.

Democratic Party Super Delegates: Super Headache in the Making

There is great interest in how super delegates are selected by the Democratic Party since there is a possibility they could determine the party's presidential nomination.

One of the better explanations as to how the super delegates came into being and how they work is Tom Curry's article, April 26, 2007  What role for Democratic 'super-delegates'? Governors, senators, state chairs, and even Bill Clinton get automatic vote

The key thing is this. There are 842 of these delegates who hold the position by virtue of being an established or retired elected political or party leader. They make up almost 40% of the delegates needed to win the nomination, or 20% of the total delegates.* That means a candidate who comes to the convention with 12% of the delegates from the primaries and the caucuses could get the nomination if that candidate got all of the super delegates.

One super delegate who is likely to vote for Hillary Clinton is Bill Clinton.

A Wisconsin super delegate voting for Barack Obama will be Governor Jim Doyle; Clinton gets the support of Representative Tammy Baldwin (Wis-2).

Some super delegates will undoubtedly cast a ballot consistent with their state's preference, particularly in a winner-take-all state.

For an ongoing list of super delegates, who they support, and the excerpts from the Democratic Party Rules that create the super delegates check out 2008 Democratic Convention Watch:

Here's a list of super delegates to the 2008 Democratic Convention that have officially announced who they plan to nominate. If you know of any others or are a super delegate please post a comment.

According to this website, various news organizations put Clinton's super delegates between 193 and 209, Obama's between 106 and 118.

By the numbers as of Wednesday, February 6, 2008:

• AP puts Obama at 765 delegates, including the supers
• AP puts Clinton at 845 delegates, including the supers
• 2025 delegates are needed to secure the nomination

The Democratic Party will have a serious problem if the convention outcome does not reflect the popular selection of delegates for the candidates.

For example, if Hillary Clinton gets the nomination based on significant support from super delegates, no amount of explaining will satisfy the young and independent voters brought into the process as reflected by the recorded primary turnout, inspired by the spirited race between herself and Barack Obama.

*thanks for the comments pointing out the error in the original post.