May 30, 2008
The merits of the impossible
By Bill Kraus
We all know about death and taxes, but we overlook a third inevitability: unintended consequences.
My view of the proposal to appoint Supreme Court justices in Wisconsin, which is being considered in many quarters and heavily promoted in one, is that it is, in a word, IMPOSSIBLE!
This is a state wedded to elections.
We elect everybody (or think we do).
We elect county clerks, registers of deeds, coroners, everybody.
We even elect two people to statewide offices which have no function. Try to tell us, the heirs of the La Follette populist gene, that a.) These offices shouldn’t be elective or, better yet, b.) These offices should be eliminated, and all hell will break loose.
So to suggest that there is a better way than the ballot box to find qualified, disinterested candidates for the state’s highest court goes beyond being heretical towards being treasonable.
But even the New York Times noted that there has been a recent development in Wisconsin and elsewhere that might call for reconsideration.
The Supreme Court races have become the playground of the special interests that do not want a disinterested judiciary. And they are spending a great deal of money to get rid of people who they think are biased against their worthy causes, or to elect people who they hope will look on their issues more favorably.
So it isn’t about the money or righteousness it’s about getting a fair hearing.
Fairness, of course, is in the eyes of the beholders, which complicates the issue.
But the fact that the major players in the last two elections of justices to our Supreme Court were openly investing in electing candidates who would be fair in their favor at best and not fair in favor of interests that they considered hostile at the very least.
The elections have become partisan, and the partisans seek what they always seek: advantage.
Would a system where justices are appointed off a list given to a partisan governor and a partisan state Senate be pure? Hardly. Would it be more likely to be a better guarantee of competence, judicial quality, and a promise to give what supplicants to that court seek: a fair hearing before people who are more likely to base their decisions on the facts of the case? Maybe. At the very least the process would be about the real criteria for the job not the phony issues that characterize and work in elections driven by 30-second TV commercials.
In any event what has happened is that the forces that have overwhelmed the last two Supreme Court races in Wisconsin may have gone too far. Far enough anyway for the law of unintended consequences to kick in and bring the spotlight on what they have gained and what the people may have lost.
If so, and if we do change the system, the interests will not go away. They will turn their attention to getting their way by electing governors, 17 state senators, and 50 Assembly representatives, where this kind of partisanship belongs, instead of four Supreme Court justices where it doesn’t.
May 24, 2008
Q, A & Q
By Bill Kraus
Q:If more than 80 percent of the voters favor some kind of campaign finance reform, why does it never get above 13th place on their priority list and no place with the incumbents who would have to enact any reforms?
A: Because the 80 percent haven’t figured out that the reason they are not getting action on the 12 items that are higher on their urgent list is because the system which campaign finance reform would attempt to fix is broken which, in turn, gives the incumbents the excuse they need to ignore it.
Q: Is it possible to be a member of an extinct species?
Q: If moderate Republicans who believe that the government has a legitimate role to play in society are RINOs (Republicans In Name Only), what are the immoderate Republicans who give them this pejorative label?
A: They are AMARs (Anarchists Masquerading As Republicans).
Q: Is the right to anonymous free speech in elections a constitutional essential that trumps candidates' constitutional right to face their adversaries?
A: It would seem so.
Q: If gun control is a geographical issue instead of an ideological one, why is legislation on the subject preempted by the state?
A: Because the NRA is more powerful than AARP, which is more powerful than God.
Q: What is the occupational disease of politics?
Q: When did the debate format go from a rigid, in depth, lengthy discourse on a single, complicated subject to a long series of soundbites on every imaginable one?
A: When it was televised.
Q: Do the mercenary hired guns who have taken over the management of political campaigns a.) enjoy their work and/or b.) have any fun?
A: Not that I can observe.
May 23, 2008
Choking on the truth
By David Bender
On Monday, the federal Environmental Protection Agency told the Wisconsin Department of Natural Resources that people in southeast Wisconsin are still choking on dangerous air.
The problem can be attributed to the fact that DNR managers in charge last summer submitted a statement to the EPA saying that we had met the ozone standards (then 85 parts per billion). The facts, however, didn't support the spin (think "Mission Accomplished"). The monitors up and down the Lake Michigan shore of Wisconsin showed higher ozone levels and called the DNR on the carpet. Because our air is not safe and we were required to implement more stringent air pollution controls last summer, and Wisconsin is now a year behind in implementing the pollution limits needed to meet 85 parts per billion.
In the meantime, EPA's non-political scientists unanimously determined that 85 parts per billion was way too high and not protective of people's lungs and hearts. So they recommended between 60 and 70 parts per billion. Then the politicians in the Bush administration took over, kicked science out the door, and ordered 75 parts per billion. Even though 75 parts per billion is too high and is likely to be ordered down to 60 or 70 by the courts or a new administration (because that's what the Clean Air Act requires), southeast Wisconsin is well over the limit and will be for more than a decade without significant efforts to cut pollution.
We would be much closer to having healthy air if the DNR had done its job and implemented the pollution cuts required by the Clean Air Act last year instead of telling EPA that we reached the standard when we had not. The DNR could have also prevented the construction of two huge new coal-fired power plants in Oak Creek that will increase pollution when we should be decreasing it. Mistakes were definitely made.
Now, under new DNR Secretary Matt Frank, the agency can and must do better. It must immediately act to get new pollution limits before the Natural Resources Board to cut nitrogen oxide emissions from power plants. Frank's efforts to get a multipollutant mercury rule to the Natural Resources Board in June (which WMC is trying to block) is a first step. DNR must also prevent the construction of new coal-fired power plants until we get our ozone and fine particulate pollution under control (not to mention the climate crisis).
May 17, 2008
Hillary Clinton as Jim Moody
By Bill Kraus
In the East the Hillaryites are dismayed as she goes from can’t miss to can’t win.
Naturally, they are blaming her and her campaign.
Neither are at fault.
It’s something known as the sure-thing curse, where the odds-on favorite is blind-sided by a totally unexpected, overwhelming challenge from an equally unexpected direction.
There are two ways to handle this. The odds in favor of either working are low.
The first is to simply believe in your invincibility and ignore what’s happening on the assumption that it will go away and you will prevail.
I saw this first in 1948 when Dewey continued his rose-petal-strewn ride to the White House over the unpopular incumbent Harry Truman.
I saw another sure thing campaign from closer up almost derail when Richard Nixon decided that Hubert Humphrey had self-destructed at the Dems Chicago convention disaster. He rode the advantage he got from that and from Humphrey’s too-late dumping of the Johnson Vietnam albatross the entire campaign. To prove that timing is really everything in politics, he got by with it because the elections in this country are on the first Tuesday in November and not the first Wednesday.
And more recently and more closely I was one of the beneficiaries when everyone’s sure-thing favorite Bob Kasten believed his own flawed polls and did little to stop the Lee Dreyfus steamroller, which he couldn’t have stopped anyway.
This leads to the second way the victims, like Hillary, handle these inevitabilities.
They react, overreact, panic, mount an out-of-character counterattack, or all of the above.
Congressman Jim Moody was the no-sweat favorite to win the Democratic primary for the U.S. Senate seat held by Bob Kasten. He was opposed by little-known and not-well-liked former party chairman Joe Checota, and by an unknown, inexperienced, state senator named Russ Feingold. Checota’s campaign was merciless, unfair, and damaging. Watching the Moody forces trying to fend it off without getting caught up in its toils was a vivid reminder of the admonition to not get into get into a fight with a pig, because you’ll both get dirty and the pig likes it. Checota’s campaign took both of them down and out and put a rocket under Feingold that he coolly rode to a November victory over Kasten.
Hillary hasn’t had to deal with that kind of a low down challenge. Obama’s is almost stratospheric and equally untouchable. This has put her on a comparative low road, because it’s the only road that’s open. Like Jim Moody years ago she had a Hobson’s choice.
She is not running a bad campaign. She is running the only campaign available.
Her problem is not her campaign.
Her problem is the Obama phenomenon just as Jim Moody’s problem with Joe Checota became the Russ Feingold phenomenon.
Nobody ever said politics is fair.
May 10, 2008
Lawyers in love (with the status quo)
By Bill Kraus
How do you ruin a perfectly good Bar Association convention? Invite Bob Williams and me to talk about the sad state of judicial politics and what can and can’t be done about fixing them.
We told them that nobody likes what Supreme Court campaigns have become.
We also told them that since nobody who dislikes what they have become likes any proposal to fix them--except perhaps their own--better than the current mess, the current mess is going to survive.
We told them that the forces of the status quo, which are always a three-touchdown favorite, are powerful and set in concrete and are major reasons no change is in the offing.
The U.S. Supreme Court, for example, would have to turn 180 degrees from its recent past to even take a look at the collateral damage that its decisions have caused.
The incumbents, even though they are wearing out their index fingers dialing for dollars, are afraid to change for fear they might become less invincible than they are.
The interest groups that are now the major players in the money race and who are getting what they seem to want—a biased instead of a disinterested judiciary—are not interested in giving up what they have spent a lot of good money to get.
The hired guns who are making the tasteless, misleading attack television ads and the television stations that are selling the time to run them are getting rich. They are going to give this up? Get real.
The only hint of good regulatory news we were able to dig up was the prospect of getting some transparency into the funding sources of the groups who are hijacking the campaigns. We know who is coughing up the dough for the manufacturers and the teachers generally if not specifically. But all we know about the Club for Growth, the Greater Wisconsin Committee, One Wisconsin, and the Coalition for Families is that their names are as unrevealing as are the names of the people who are sending them the money they are able to scarf up to denigrate the candidates they dislike.
The special session, we told them, is still alive. The disclosure bill which the senate passed unanimously ended up in a trash can in the Speaker’s office on its way to the floor of the Assembly despite the fact that this has always been the Republican preference over regulation and spending limits and the fact that the speaker is on the record in favor of the idea.
But the special session is still alive and transparency is part of the big reform bill that is gasping for breath and which could be passed [ha!] or modified down to a skeletal disclosure version..if someone, like all of the lawyers in the audience would call their Assembly Reps and raised something approaching hell.
Easy but perhaps a forlorn hope. We’ll see.
What we really asked them to do is a lot harder. We told them to get back into politics as candidates, as campaigners, as contributors, as citizens. They could start, we suggested, with their mouths, because judicial campaigns are still places where word of mouth counts.
Bob Williams closed this plea with two questions for all the 15,000 members of the Wisconsin bar who live in Wisconsin by asking:
If not now, when?
If not you, who?
Just what they wanted to hear. Or not.
May 2, 2008
The two types of campaigns
By Bill Kraus
The incumbent sheriff of Dane County was asked to record automated telephone messages for the county board candidates he had endorsed for election or re-election. In the cases where it was appropriate he was also asked to note that the county’s deputy sheriffs' association had also endorsed the candidate.
The recordings were made late in the campaign and late at night in a period that all of us who have been involved in political campaigns know is chaotic at best.
A mistake was made in one case. The sheriff had endorsed a candidate, but the recording said the deputies had as well. They hadn’t. They had endorsed his opponent.
The aggrieved candidate protested as soon as he heard about the inaccurate calls.
His opponent apologized, contacted the local paper with a story about the mistake and with his retraction and apologized. He had the faulty tape pulled and had the sheriff made a new, corrected tape. The sheriff apologized as well and so did the county board chairman was in charge of producing the original recording.
At a hearing of the Dane County Election Commission after the whole episode was described and discussed and after another round of apologies, all those concerned made promises to tighten up the process so this would not happen again.
It was a civil conclusion to what all felt was an honest, non-fatal mistake.
In the same election sequence the campaign of Judge Michael Gableman for the state Supreme Court issued a letter signed by former Lieutenant Governor Margaret Farrow that said Gableman’s opponent had cast the deciding vote in a case that resulted in a convicted sex offender being released from custody and put back on the streets.
The charge was a mangled version of what the court decided and what the case was about, and, worse yet, ignored the fact that the offender had not been released but was still tucked safely away in the Sand Ridge Secure Treatment Facility.
The Judicial Campaign Integrity Committee (on which I served), which played the role the Dane County Election Commission played in the previous case, called attention to the errors in the letter and asked the people running the Gableman campaign to “retract the statement and correct the record.”
There was no retraction, no correction, no apology.
An uncivil conclusion which reflected badly on the campaign, on politics, on the judiciary.
The only similarity between these two campaigns is that they were decided on the same day. The biggest difference in them was that the one that handled its problem more admirably and with more grace was the one that was the work of citizen politicians, amateurs if you will. The other campaign was the handiwork of what former president Gerald Ford described as “professional hired guns.”
Don’t kill all the lawyers, but do give some serious thought to eradicating the mercenaries who have shanghaied our political campaigns.