September 28, 2011

Extra textual, read all about it

I thought Marquette University adjunct professor of law Rick Esenberg said he was trying to cut down on engaging "lefty bloggers," but has decided to attempt describing his belief that I am "wrong" — I clearly allowed that I might be — with respect to Wisconsin Right to Life's apparent engagement with the State election bribery statute:
The problem that I see with application of the statute to WRTL is that the gift cards were offered or given not as an inducement to vote but as an inducement for people to get others to apply for absentee ballots.
Oddly enough, that's exactly the problem I saw and where there's a problem then one or the other of an adversarial party can be expected to employ it to their best advantage. Less oddly, for this is a favorite rhetorical device of his, he blandly asserts I'm "wrong" and then goes on to acknowledge that the bribery statute is indeed open to ambiguous interpretation, an admission that defeats his immediately prior assertion that I am "wrong." Most unfortunately, Prof. Esenberg does not explain why, in this case, the voucher must be offered directly to the elector:
[T]he inducement — whether given directly to an elector or another person — must function as an inducement to the elector.
That's the assertion of Prof. Esenberg. And of course I get that that may be the intent of the statute, but that is not what the statute says.

So one more time, "slowly," as the professor would say.

The statute, reduced to one alternative essence, proscribes:
Any person who offers anything of value to any other person in order to induce any elector to [vote].
For example:
WRTL who offered $75 vouchers to volunteers in order to induce electors to vote [absentee].
Pretty good fit, if you ask me. Bottom line: The plain (such as it is) language does not make the distinction Prof. Esenberg and his friends at WRTL want it to include and in order to ascribe that distinction to the statute, Prof. Esenberg has gone elsewhere, extra-textual. He has to.

Just beware the next time he accuses a "liberal" of doing so.

By the way I don't care much what the cases say. That's because I'm a proud judicial conservative in the finest Thomas/Scalia tradition.* The cases may be wrong. Any conservative can tell you that. But the language of the statutes, as sloppy and unintentionally sweeping of otherwise unobjectionable behavior as it may be, can never be "wrong."

Besides, it's merely my opinion that the DA "must" charge WRTL, not to punish them but to seek clarification in the law, which WRTL itself appears to be challenging, although there is punishment available.

Most people — including even law professors — understand that the widest latitude in prosecutorial discretion inheres at sentencing, where prosecutors may insist on bare minimums, defendants will obviously embrace such recommendations, and 99 times out of 100 judges will bless the lawyers' covenant. So this has nothing to do with penology.**

And I accept, arguendo, Esenberg's declaration that WRTL is comprised of "good people." But that's got nothing to do with it either. WRTL is a political advocacy outfit with plenty of dough and plenty of high-priced legal assistance at hand. If they want to play and especially if they want to push the envelope then they have to be aware of the consequences.

* Admittedly occasionally tongue-in-cheekedly.

** And plenty to do with politics: "lefty blogger" here, don't you know.

12 comments:

gnarlytrombone said...

If a political party or a candidate or even the League of Women Voters pays people to encourage or facilitate voting, they will have violated the statute.

Oh, FFS. Is Argument: the Art of Anecdote and Asinine Analogy part of wingnut basic training? This wouldn't be under scrutiny if WRTL had offered gas cards for canvassing.

John Foust said...

If he's wrong, he can always fall back on his Standard Contradictory Disclaimer™: There could, I suppose, be additional facts about the arrangement that make the law applicable and, as I blogged when this story broke, I would have advised that the program be structured a bit differently in order to err on the side of caution.

You know, really, nobody cares about this stuff. That's why Marquette pays him, so he can write 2,500 words about Capper.

John Foust said...

Dad29 asks "Does Bice use Foley as his kitchen-table kibitzing-lawyer?" but perhaps it is only a ploy to lure commenters to his blog.

Things are dusty over there: Most posts have zero comments, there seems to be a 70% probability that his comments won't even inspire his regulars to say anything at all.

gnarlytrombone said...

Aaaand Binversie posts a column completely ignoring "or to or for any other person" and citing perfesser and now "president" Shirk.

illusory tenant said...

I've never met Dan Bice.

John Foust said...

Kevin bin Versie falls back on phrases like "time-honored tradition" to justify the practice. WRTL used "incentives," WJN "set up a racket." See, WisconsinReporter is a non-partisan organization.

illusory tenant said...

There's no question bribery is a time-honored tradition.

Anonymous said...

Ah, memories of Kevin...

www.sunprairiestaronline.com/main.asp?SectionID=5&SubSectionID=5&ArticleID=7869

illusory tenant said...

The definitive smackdown. Kudos, Mr. Basile.

Anonymous said...

"extra textual." brilliant.

Anonymous said...

The professor is at it again, Illy-T. I'm sure you are aware of his "counter-arguments". Perhaps another rebuttal? I know, I know, like beating your head against the wall...

illusory tenant said...

Good times.