January 28, 2008

Loophole hooey and the WJCIC

Ever since the President of the State Bar of Wisconsin, Tom Basting, formed a committee (the WJCIC) to monitor the ongoing and future election campaign between Wisconsin Supreme Court Justice Louis Butler and Burnett County Circuit Court Judge Michael Gableman, the First Amendment paranoia has been flying thick and furious.

It's plainly unconstitutional! It's an attempt to regulate speech!! zOMG teh librulz!!!!11 Et cetera, et cetera.

Never mind, apparently, that any regulation of speech is already embodied in Chapter 60 (.pdf; 38 pgs.) of the Wisconsin Supreme Court Rules. What the WJCIC has done is merely distilled from the Rules an advertising agreement which simply reminds the main players to abide by those Rules. It has also, in what seems to me a decidedly innocuous request for a mutual gesture of good faith, asked that the two principals sign and return the agreement.

Now we have Rick Esenberg of Marquette University Law School conjuring an invocation of a "Basting test" according to which, presumably, statements made during the campaign are assessed. No word yet on the actual elements of the mysterious Basting test, although a number of clues may be discerned in the popular press.

In an op-ed piece that appeared ten days ago in the Milwaukee Journal-Sentinel condemning the State Bar's "improper role," four corporate attorneys* from three of Milwaukee's largest law firms weighed in with their extrapolations upon the WJCIC agreement. (I hope it didn't take all four of them to come up with this jeremiad.)

"The pledge [sic] seeks to prevent the candidates from engaging in speech that the eight-person committee believes is false, unfair or otherwise offensive," they write.

It does? The closest thing the agreement comes to presenting the WJCIC as an adjudicator on Truth, Justice, and the American Way is that it charges itself with "reviewing" campaign literature. It presents no such standards of "belief," other than those already set forth in the Supreme Court Rules and those Rules' explanatory commentary.

None other than Esenberg himself commended the op-ed in glowing terms. Esenberg, who assiduously seeks to portray himself as above the fray — and occasionally succeeds — has lent his credentials and views of the State judiciary to Wisconsin Manufacturers & Commerce (WMC), a business group that last year devoted more than $2 million worth of issue advertising in generous service to the successful election of Justice Annette Kingsland Ziegler, the formerly ethically-challenged circuit court judge from Washington County.

In fact it was the often low quality of that campaign's discourse that prompted Mr. Basting to institute the WJCIC in the first place. Something about protecting the integrity of the judiciary and the general view of the legal profession, or some such rubbish. As if the President of the State Bar has any business seeking to insinuate himself into these concerns. The cheek and temerity of that man!

Then WMC is embarking on a February World Tour (.pdf; 4 pgs.), at which Esenberg is the featured speaker, albeit his appearance will be live via DVD, hard copies of which will be distributed to the breakfasting revellers. It's unclear whether the DVD contains only Esenberg's mini-disquisition already available here, or an expanded, unedited version. But I'm sure we'll find out sooner or later.

Meanwhile, writing in Madison's independent weekly Isthmus, columnist David Blaska describes the WJCIC as a "front group" for the State Bar (although he also calls Michael Gableman "Max," which may be a strange, possibly Freudian typo or a personal term of endearment). But does Blaska seek out the actual text of the WJCIC's advertising agreement? Of course not, he takes the four corporate attorneys at their word, quotes exclusively from their J-S op-ed number, and concludes, "Tell the Bar's committee to go pound sand." (Emphasis in original.) Relying on secondary opinions when the primary authority is just as easily available ... great work.

No wonder Charles J. Sykes is evidently a fan (for it was He).

As for the advertising agreement itself, it would be difficult to dream up anything more innocuous or less sensibility-offending.

After a series of “whereases,” the actual statements that the two electioneering principals are urged to endorse are presented in numerical bullet points. Premised as they are in the Supreme Court Rules, I can't imagine anyone objecting to any of these blinding glimpses of the bleedin' obvious, with the possible exception of number five, which reads:
I agree, based upon my personal examination of judicial advertisements, to publicly disavow advertisements that impugn the integrity of the judicial system; falsely or unfairly impugn the integrity of a candidate for the Supreme Court; or erode public trust and confidence in the independence and impartiality of the judiciary by verbally or visually attempting to lead voters to believe that a candidate will decide issues or cases in a predetermined manner.
Donning my strict constructionist hat, I notice that the First Amendment to the U.S. Constitution makes reference to "abridging the freedom of speech." And I'm therefore at a loss to explain how an agreement to "publicly disavow," which necessarily implies more speech, is construed by some as having the effect of "abridging" speech, which means 'lessen.'

Personally, I couldn't care less whether either candidate signs the advertising agreement or not. I honestly don't think it would make much of a difference anyway. But I applaud and support Tom Basting's efforts at maintaining decorum and civility in a campaign where, given the conservative stakes articulated by Esenberg and the WMC, the discourse could very well degenerate in a hurry.

In a number of instances, it already has. Curiously, those instances seem to have emanated from supporters of Michael Gableman. So it makes one wonder what speech, exactly, the WJCIC's detractors are fearful at having "abridged." Mike Plaisted has some ideas.

* A tip o' the cheesehead to the redoubtable and ubiquitous John Foust for pointing out that the apocalyptic four are also actively involved with the Milwaukee Chapter of the Federalist Society (Warning: that last link may frighten children and small animals).

[Please visit the iT Butler/Gableman archive.]


PaulNoonan said...

Donning my strict constructionist hat, I notice that the First Amendment to the U.S. Constitution makes reference to "abridging the freedom of speech." And I'm therefore at a loss to explain how an agreement to "publicly disavow," which necessarily implies more speech, is construed by some as having the effect of "abridging" speech which means 'lessen.'

I must pick a nit with your strict constructionism. The word "Abridging" is modifying "Freedom of Speech," not just "Speech." Therefore, it would be consistent to interpret a coerced speech as an abridgement of the "freedom of speech" because the speaker lacked freedom when compelled to say certain words.

Abridging freedom can flow in either direction.

illusory tenant said...

A fair point, thanks. Although it is left to the discretion of the signatory to determine whether the content of the subject advertisements requires any additional speech at all.

Display Name said...

Aww, shucks. 'Twern't nothing, just a little googling that any editor should be doing. Makes me wonder why didn't the Journal mention the affliation. Maybe they weren't told. Maybe they were aware, but left it out. Maybe they said it was just a coincidence that they were the officers of the local Federalists, kinda like the way it was a complete coincidence that one of Esenberg's research assistants wrote about Gableman, too.

With my googling, I wasn't quite sure if Rebecca used to work at Red Prairie. It's too bad there weren't three authors of the op-ed. Then we could've used that nifty phrase "They're one horseman short of an apocalypse."

It kinda helps that other Gableman horsemen like to ride around with birds on their heads, though.

Can someone tell me the tremendous difference between what the WMC is obviously orchestrating and what this cabal at the State Bar has organized?

Esenberg seems to be so up in arms with what WJCIC wants to do, yet he's blissful with what WMC is doing. I would think that any member of the Bar could participate in WJCIC, left or right, even if it's a bunch of Doyle supporters who started it. Do they let non-Republicans into the WMC, and do they get a similar voice?

I think Rick's head-shot on his blog makes him look more more handsome than he did in that video. Were those actually Reader's Digest Condensed Books in the background in the video?

illusory tenant said...

lol@"Back from Cruisin'"

Display Name said...

I tell ya, the material writes itself.

Rick Esenberg said...

Paul Noonan's point is more than a "nit." Compelled speech by the state is clearly a constitutional violation as is a speech code which prohibits or chilled constitutionally protected speech.

Of course, the WJCIC is probably not a state actor (although it is funded by dues that lawyers are compelled to pay by state law), but the problem here is that it sets itself up as some type or neutral applying standards about which all well intentioned men and women agree.

That's a problem because the following statement by IT is wrong:

Although it is left to the discretion of the signatory to determine whether the content of the subject advertisements requires any additional speech at all.

That might be so if the WJCIC wasn't setting itself up as a judge - actng on behalf of all the lawyers in the state - of what is or is not proper. Granted, they'll do that whether or not the agreement is signed, but I don't think either candidate ought to confer legitimacy upon this effort.

As for Esenberg having no problem with what WMC is doing, I have no idea what WMC is doing or will do. They asked me to state my opinions in a video and I agreed as I would have done for just about anybody who asked.

I laid down some rules for what they could embed in the video (I asked them to take out some stuff) and asked them to make clear that my views were not those of Marquette Law School. I answered their questions but I said what I wanted to say (I am sure they would have liked more red meat) and made sure that their edit fairly represented our conversation. You will not see anything but that edit (at least not unless they ask me) but what they left out is not really much different than what they left in.

Now, of course, I know that WMC is going to use this in furtherance of a campaign that may include things that I don't agree with and that will certainly be designed to influence the election. But, as I've said before, these are things that I feel strongly about and which it is proper for lawyers and scholars to speak about. If I can have a forum to discuss them at a time when people are interested, I am going to be inclined to take it.

I have said, repeatedly, that the MJS must have taken 60 snaps to get the head shot on my blog. That's why I am sticking with it.

Anonymous said...

Hey foust

Did you get your picture taken at Glamour and Boudoir Photography in Menomonee Falls? They do really nice touch-ups.

illusory tenant said...

That's a problem because the following statement by IT is wrong:

"Although it is left to the discretion of the signatory to determine whether the content of the subject advertisements requires any additional speech at all."

That's rather uncharitable, Prof. Esenberg.

The hypothetical public disavowals contemplated by sub. 5 are only those "based on [the signatory's] personal examination of judicial advertisements."

Even if the signatory decides to issue the disavowal, it is at his discretion, and arises from his own personal examination of the advertisement, not the WJCIC's.

Although the committee may disagree with the grounds for a signatory's failure to issue a disavowal, that's anybody's prerogative.

There is no compelled speech in the agreement. Even if there was, wouldn't a signatory, by the very act of signing such an agreement, forfeit at least part of the argument that he was subsequently "compelled" to speak in some way?

It seems to me you're attributing to the WJCIC a quality of imperiousness that is, at most, only implied.

But I agree with you that the candidates will likely react to statements made by the opposing camp whether they decide to sign the thing or not.

On a lighter note, there is this:

The guy has a halo.

Display Name said...

Mrs. Reddess, I'll say it again, his head shot looks good. Mine, by comparison, is actually a mirror self-portrait I took for my "Next Food Network Star" audition. It shows that mischievous twinkle in my eye, the Dudley Do-Right chin, hints at my deep-seated intelligence and neatly conceals my horns. If you have your GlamourShot(TM) to pass along, please do. If you have red hair I commend Esenberg on his fine sensibilities.

I think those really are Reader's Digest books. I can't make out the titles. Are they the John Grisham Condensed Books? The long ones are so hard to get through. Still, I think all attorneys should keep the wall of the old statutes, just for the old-book smell and just in case they ever need to pose for a campaign advert.

Is there anything in the mechanics of the State Bar that would prevent any veteran attorney from joining or steering the course of the WJCIC? Did any veteran attorneys collude with the local Federalists to make that op-ed happen? Any theories as to why the Journal didn't mention the connection?

Rick Esenberg said...


It would be left to the discretion of the signatory only if the WJCIC didn't announce it's intention to pronounce of whether discourse is acceptable or not. While it's true that anyone can do that, they are proposing to do so as a neutral acting on behalf of that state's lawyers and signing their agreement adds to that. Sorry, but not in my name.

John Foust

I couldn't tell you what those books are since the video was shot at the Madison Club. But, as the Reddess (and the name is apt) will tell you, I have a really bad book buying addicition so you could certainly come to my house (in about five rooms) or office and get much the same effect.

As for the halo, I can't get rid of that shot. It's the best one ever taken - or at least the best since I was about 4.

Anonymous said...

Mr. Foust

I really do have red hair. Hated it as a kid (the teasing by other kids) but like it now.

But alas, no GlamourShot(TM).

illusory tenant said...

It would be left to the discretion of the signatory only if the WJCIC didn't announce it's intention to pronounce of whether discourse is acceptable or not.

More clearly, with the logic intact:

'If the WJCIC didn't announce its intention to pronounce on whether discourse is acceptable or not, then it would be left to the discretion of the signatory only.'

Except the plain language of the agreement does leave it to the discretion of the signatory only. The consequent stands alone, and the antecedent is not only not required to establish the truth of the consequent, but your attempts to make it so are practically equivalent to the adjudicative techniques for which you purport to criticize Justice Butler.

To sum up, your flat declaration of my error in reiterating sub. 5 is totally unsupported and, I believe, unsupportable.

Unless you take to "legislating from the bench," as it were.