Prof Cronan's fight is actually about workers' rights

If you haven't read about the attempt to use a state FOIA like law to silence Wisconsin University Professor William Cronan by the State GOP, please do so.  Or try Krugman for a much shorter recap.

In the comments to both pieces, I quickly found examples of the answer I expected to see:  Cronan has nothing to complain about, employees should always know they have no expectation of privacy for anything they do at work, so should never use a work resource for anything they wouldn't want revealed to others.

Cronan's write up focuses a great deal on the academic freedom aspect.  He makes good and valuable points which rely on the understanding that a University professor is not an "employee" in the usual sense.  The job requires someone to seek and publicize truth wherever they find it and however uncomfortable it is for others.  Providing the security and opportunity to do this is the whole point of things like tenure, and the general lack of a hierarchical structure for academics.  Very few other jobs compare at all to this. 

Part of the problem surely ties to the ongoing corporatization of universities from public interest institutions that adopted corporate structures and practices to improve their financial situation, and have morphed ever more into actual profit seeking businesses that keep a veneer of academic-ness because it's good for business.  In a purely for-profit private "university" - can one really distinguish a Professor from a regular corporate trainer?

But as the University of Wisconsin-Madison is a public institution, I think the larger shift here is about how the typical American worker has come to accept the employer's absolute right to snoop on nearly anything they do at or for work and often even beyond.  I suspect putting cameras in the toilet stalls or changing rooms is about the only currently culturally accepted limit to what US employers can do to spy on their employees (the actual legal picture is more complex, but in general it is safe to say the US is quite tilted in favour of the employer monitoring nearly anything under any means at the workplace or done with company assets).

This is simply accepted as some kind of inevitable feature of the employer-employee relationship, but it really doesn't have to be so.   Employment law regarding the employee's expectation of privacy varies significantly in other countries.  It's a complicated subject, but in Canada a number of precedents exist (and new ones still appearing) which limit what may be monitored, or what action an employer can take based on what they find with it.   I've heard from professionals in the field that laws in some European countries go much further, and there are also EU wide regulations providing a level of privacy protection beyond what employees in Canada or the US would experience.

The deeper point here is that if one's attitude is to treat Cronan as just another "state employee" and claim that everything he does at work is subject to inspection by his employer (the people of the State) then yes, Cronan's fight really becomes not about academic freedom, but again about simple employee rights.  That he is a public sector worker only increases the similarity to the fight of the public sector unions against the very same anti-employee forces of the right.  The balance between freedom of information style laws and various legitimate reasons for not disclosing any particular public record is an important one, but some notion of the general employee's fair expectation not to be subjected to absolutely capricious or even malicious investigations in order to contrive grounds for action against them should be in there.  Lawyers can wrangle about whether employers should have something like probable cause or reasonable suspicion to engage in particular investigations on employee behaviour, but I think "I don't like the stuff that guy is saying" shouldn't cover it. 

The law is what it is as it pertains to this particular case, but liberals should keep in mind it doesn't have to be this way and a better balance can be struck.  Academics have strong grounds for additional protections above the norm, but the norm for everyone else doesn't have to be so low either.

Wisconsin: Dems lost well

As I come from a parliamentary system where the first-past-the-post electoral system has through most of my life resulted in majority governments both provincially and federally who can rule quite broadly for their terms, perhaps my perspective on the Wisconsin legislative outcome is somewhat less bleak than many US liberals I read.  Walker the state Republicans passed their desired bill completely on Republican votes against the most strenuous and unrelenting opposition that the minority party could muster.

They get their way, but now may face some blowback from voters at the earliest electoral opportunities.  The recall system allows those to be rather sooner than later for some of the people responsible, but in principle they will all at some point have to face the voters for this.

It would have been splendid had the Republicans relented under the storm of opposition, but I think I'm glad there wasn't a deal among "moderates" in the State senate.  Such deals tend to still be bad deals for workers, if slightly less odious than the initial demands and they leave the voters with no clear villain to blame.  This at least means the State Democrats have clean hands and clear consciences over the matter and for voters a bright line has been drawn that does not need any caveats about some Lieberman faction.

I lived through an extreme right wing government in Ontario and while some of the damage they did still hasn't been undone (hello privatized for a song toll highway 407) much of it has.  The nice thing about the union rights being stripped under the auspice of having "no fiscal impact" in order to elide the three-fifths quorum requirement is that those rights can be restored by majority vote too.

This is what liberals have repeated asked from Democrats at the national level, particularly when in opposition, make them pay a price for doing what they do. 

What follows Wisconsin?

I hope people leading the US labour movement, progressive leaders, MoveOn and whoever else are giving some thought to what comes next here, win or lose.  It seems likely winning would entail more momentum than losing, but this looks like a great candidate for a situation where losing could still mean "losing well" - it would depend how it went down, but Walker has spent a tremendous amont of political capital here, and labour has been fired up in a way they probably haven't been since Reagan fired the air traffic controllers. 

Anyway, where from here?  Seek a federal law protecting collective bargaining?  A constitutional amendement?  A series of state level ballot initiatives?  A drive to unionize Koch industries?
 
A win in Wisconsin would be great, but isn't enough, as the current fight is defensive in nature.  It's worth trying to make back some lost ground.  Obviously the national Democrats aren't going to lead on this.  Don't let this moment pass.

No one cares about legislative process

Watching the right's reaction to the Wisconsin situation has provided a too rare real world reversal experiment on what happens when it is the left using some procedural quirk to halt measures they oppose but that would otherwise pass easily.

For example across the twitter streams for tags like #wearewi and #wiunions you find right wingers whining about the State Senate Democrats "not showing up for work" and "not doing their jobs" and other variations.  The interesting thing is that they haven't actually settled on a talking point, probably because nothing they're trying is really working.  Voters just don't care.  They now understand something of what the Governor and Republicans were trying to do (at least the union busting part, probably less so the medicaid and privatization parts) and oppose it, vehemently.   They just don't care how the State Senate Democrats have been able to stop it, as far as voters are concerned at a moment like this, as long as the rules allow whatever is stopping the bill, they're fine with it (and more). 

This is a bit different from the filibuster fight over the past four years in that most of the time, the general public was not really aware of whatever the Republicans were obstructing.  On the occasions where the public did care, like over the health care bill, and somewhat on financial regulation reform, the reaction to Republican obstruction just depended on whether the public liked the bill.  On HCR, they were slightly opposed, so Republicans paid no real price for uniform obstruction.  On Finreg, the public supported the bill and so Reid's gambit of holding repeat cloture votes eventually did work.

The important lesson here for process reformers is to understand how vital it is that the process be fair and robust against trickery because voters just don't respond much to process issues.

Wisconsin Senate Rules

The google seems to be sending me lots of readers interested in Wisconsin Senate Rules.

I don't make any money from you reading this, but I commend you looking into the details of this story so a special post on the topic.  Sorry people paid to tell you the news couldn't bother to explain this stuff.  Here are the Wisconsin Senate Rules.  You won't find what you're looking for though, because the quorum rule that allows the State Senate Democrats to stop the Senate from conducting business is actually found in the Wisconsin State Constitution, Section 8, Article 8, which says:

Article VIII, §8
Vote on fiscal bills; quorum. Section 8. On the passage in either house of the legislature of any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three-fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.

If you don't know what "quroum" is, it simply refers to the minimum number of members of a body that need to be present in order to conduct business as that body in the official sense.  So, 1 US Senator cannot claim to be "the Senate" and speak for the entire body, or pass a bill for them.  Neither can 2.  But say 70 Senators get together somewhere, should they be allowed to conduct formal business of the Senate?  That's what quorum tries to address.  For fiscal bills like the one under dispute, Wisconsin's constitution requires that 3/5th of the members of each chamber of the legislator be present to hold a vote on the bill.  This applies even to things like Condo boards and Rotary club executive meetings.  Usually most bodies have settled on a majority of members to constitute a quorum. 

I don't know why Wisconsin chose to have this requirement in its Constitution.  However in my experience, usually supermajority requirements for "fiscal" matters (especially tax increases) are put there by conservatives to prevent anyone from raising taxes.  Notice that the article for Wisconsin does not require 3/5th attendance to lower taxes.  Lowering taxes can create a deficit.  If raising taxes is such a weighty matter to require supermajority attendance, why can they be lowered by a simple majority?   So it appears to be a bit ironic that this article is blocking conservative legislators and the conservative governor from taking away powers from unions.

What the Wisconsin Senate Democrats are doing is not new in the annals of legislative history.  For example, the US House of Representatives used to have a thing called "disappearing quorum" where members would simply not respond to quorum calls so that the House would have to halt official business if something they didn't like was about to come up for a vote and might actually pass.  This practice ended with Speaker Reed in the 1890s, which was the last vestige of non-majority rule of the US House.  The minority's ability to stymie the majority has continued in the US Senate to this day, with the vast majority of filibusters conducted by conservatives (usually Republicans but sometimes conservative Democrats).

You might be inclined to disagree with the fact that the minority party can stop a bill just by not being in the chamber.  If so I hope you were also upset at the US Senate Republicans over the previous 4 years, who, with as few as 40 members were able to stop an a historically unheard of number of things from passing by use of a slightly different means of minority obstruction, the filibuster (but the effect is mostly the same).

The Walker prank

There's a lot of great stuff within the call itself, but I also find the meta-issue that this happened at all fascinating and revealing.  We've become so used to the fact that the rich get special access to powerful elected politicians, but it really should be a scandal all on its own that in the midst of the political crisis that will almost certainly define his career, Governor Walker found time for an out-of-state billionaire who holds no office.  No journalist, in state or out of it could get ahold of the governor, nor any ordinary citizen of the state, but he drops everything to take Mr. Koch's phone call.

Take this part from Salon's interview with the prankster, who upon calling the governor's office and identifying himself as Koch was immediately put through to Walker's COS, and to pass that barrier:

I politely said hello, not knowing how friendly Gilkes and Koch may be. He was eager to help. “I was really hoping to talk directly to Scott,” I said. He said that could be arranged and that I should just leave my number. I explained to Gilkes, “My goddamn maid, Maria, put my phone in the washer. I’d have her deported, but she works for next to nothing.” Gilkes found this amusing. “I’m calling from the VOID—with the VOID, or whatever it’s called. You know, the Snype!”

The tactic of pretending to be Koch was singularly brilliant as it exposed and exploited a huge conservative weakness.  Their elected officials really are quite eager to ingratiate themselves to America's owners and despite the absurdity of a billionaire being unable to provide a call-back number, neither Walker nor his COS could stand to risk offending Koch by refusing the call.  Koch can funnel rivers of money and positive press toward a guy like Walker toward some future campaign.  If things go badly, Koch can ensure a safe landing at some no-work-required 6 figure sincecure "think tank."  He's the reigning wingnut welfare paymaster and the mid level help like Walker are thrilled to be noticed by the likes of him.

Also bleakly hilarious is that the line about deporting the maid was apparently believable enough.  We know these people are serious assholes, but shit, that's still a little incredible.

Just ask yourself what would happen if a right wing prankster got through to Obama by pretending to be Soros.  Even if Obama said nothing different from his public positions the right would make a stink about him taking Soros' calls.

This was a rare moment of using a conservative weakness against them.  I hope others can find ways to exploit their desire to suck up to the caviar class in order to trip them up. 

Fake edit:  Lawrence O'Donnell made note of the hilarity of their eagerness to take the call too.  Cool.

Semi-apology about Wisconsin's Senate Rules

Perhaps the longest and most intensive work of original research I published at Open Left was my piece detailing that 36 State Senates do not allow filibusters by the minority.   It was not fun tracking down 50 49 (never did find Delaware's) sets of Senate rules, trying to interpret 18th and 19th century legalese and figure out whether that institution even theoretically allows a minority of members to indefinitely prevent the majority from passing bills.  Today's events in Wisconsin would evidently make my inclusion of Wisconsin in the "no-filibuster" side of the list problematic. 

In my defence, the Wisconsin Senate rules do state fairly clearly:

Senate Rule 15. Roll call, quorum. [...] A majority of the membership presently serving must be present to constitute a quorum for the transaction of business; a smaller number, however, can adjourn and may compel the attendance of absent members.

 And I would not have been satisfied with just that, as I knew various States had supermajority requirements for certain special types of legislation, like California's infamous two-thirds requirement for its Budgets.  So I had also dug up this, from the National Conference of State Legislatures, which clearly lists Wisconsin as able to pass its budget on a legislative majority basis.

All that said, clearly I missed something important.  That being Article 8, Section 8 of the Wisconsin State Constitution, which says:

Article VIII, §8
Vote on fiscal bills; quorum. Section 8. On the passage in either house of the legislature of any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state, the question shall be taken by yeas and nays, which shall be duly entered on the journal; and three-fifths of all the members elected to such house shall in all such cases be required to constitute a quorum therein.

I drew the line at reading 50 State constitutions (a guy can only take so much!) and relied on other sources like the NCSL to point out such land mines of supermajority requirement.  Looking at this, while it is technically true that Wisconsin's Senate does not allow "filibusters" in the narrow way that term is understood (protracting debate) and it is also technically true in the NCSL's defence that a straight majority vote, once held does pass the budget in Wisconsin, it still remains that minorities larger than two-fifths of either chamber can prevent business and thus prevent passage of something they are united against.  Given how widely this language is written, it covers a great deal of legislation and all of the most important stuff.  It also doubles the veto-points by granting this power to the minority of either Chamber.

I don't know the history of this provision but my guess based on the history of these things is that it's another aristocratic relic - a way for the wealthy to more easily prevent the masses from taxing or spending their money.  This makes the use of it by WI Senate Dems some nice poetic justice, to put one of these "keep the liberals from doing so much damn good" measures into actually supporting the greater good.

This only works because Republicans are trying to repeal some existing government support for the little guy, if the law didn't support public sector unionization, Republicans could just as easily use this sort of provision to prevent it from passing.

I'm also a little worried because it looks to me like a stand-alone bill repealing public sector collective bargaining rights could be passed without the three-fifths quorum so long as such a bill didn't spend any money.

Last to address the inevitable (general) claims that "you liberals were against minority obstruction when it was to your advantage now you are for it" - my take is that I would be happy to see this provision stripped from the Wisconsin State constitution.  However, while it is there, I do not claim Democrats must unilaterally disarm and never obstruct majority business where the rules allow them.  The "founders" of Wisconsin saw fit to give the minority the power to block spending bills by physically leaving the Chamber and the State, and Democrats believe this issue is sufficiently important to take such an extreme measure to prevent it.  If they fail to stop something the rules allow them to, they are complicit.  If the rules did not allow them to stop this, then voters could decide if they approved in 2012. 

I also thought Democrats should have filibustered Alito and by not doing so, they still bear some responsibility (and ill will among the base) for each and every odious decision he joins.  If Democrats had filibustered Alito, Republicans would probably have invoked the nuclear option and confirmed him on 51 votes.  Aside from the upside of ending the filibuster, they would not bear the stain of failing to stop something awful.  Wisconsin Democrats may lose this fight, but they will "lose well" in a way that builds for the future and leaves their hands clean.