From the MWJS: Judge throws out Walker's union bargaining law

An illustration of federalism, civil liberties, and the nature of home rule authority. A federal court threw out part, but not all, of Wisconsin's recently passed laws limiting collective bargaining rights for city and state employees:

Gov. Scott Walker's law repealing most collective bargaining for local and school employees was struck down by a Dane County judge Friday, yet another dramatic twist in a year and a half saga that likely sets up another showdown in the Supreme Court.

The law remains largely in force for state workers, but for city, county and school workers the decision by Dane County Judge Juan Colas returns the law to its status before Walker signed the legislation in March 2011.

Colas ruled that the law violated workers' constitutional rights to free speech, free association and equal representation under the law by capping union workers' raises but not those of their nonunion counterparts. The judge also ruled that the law violated the "home rule" clause of the state constitution by setting the contribution for City of Milwaukee employees to the city pension system rather than leaving it to the city and workers. 
- The laws in question: Wisconson Act 10 and Act 32.
- Click here for the judge's ruling, and here for excerpts.

3 - Summer 2 GOVT 2301 Written Assignment #3

Last week or so, the Boy Scouts reaffirmed a ban on openly gay youths and adults becoming scouts and leaders. The Supreme Court had previously argued - in 2000 - that they were free to do so under the assembly clause of the Constitution (BSA v. Dale). This challenge to the policy comes in the wake of a sea change in attitudes about gays and lesbians, but the challenge failed.

Since you are looking at civil liberties and civil rights this week, this case provides us a good opportunity to look at how these intersect. One on hand, the Boy Scouts - as an organization - claim the right to assemble as they choose (with and without whomever they choose) and they are protected by First Amendment language that restricts them from governmental interferences.

On the other hand, the Constitution also contains language that mandates that people not be denied the equal protection of the law. The scouts get benefits from government, and if they discriminate they may be subject to losing those benefits.

I want you to look - narrowly - at the Constitutional issues associated with this case and try to figure out how the courts are interpreting constitutional language in order to determine how to reconcile the competing claims of liberty and equity in this case.

This might give you a good start:

- Constitution Check: Do the Boy Scouts . . .

As with other assignments, I;m far less interested in your personal opinions on the case than in your ability to understand how the courts wrestle with constitutional language in order to address this issue.

Might Russia become a democracy after all?

A point I briefly make in the introductory slides in 2301 is that democracies tend to develop in places where a strong middle class has evolved and pushes for political power. The Moscow Times argues that despite setbacks in recent years, including apparent attempts by Vladimir Putin to consolidate control of the nation, a Russian middle class is asserting itself.

People who study democratization often argue that economic freedom - market reforms - have to preceed political freedom. Increased per capita wealth - especially is it is spread somewhat equitably - give people the autonomy and strength to participate politically and to effectively make demands on government. The authors argues that the basis for a transformation to democracy has already been laid in Russia, but the market transformation has to be supported by the vigorous political class. Increased per-capita income seems to be allowing for the necessary political support:

While market reforms brought substantial prosperity — average annual per capita GDP at purchasing power parity is now $17,000 — a large middle class, based mostly in small and medium-sized companies and the service sector, all developed beyond the reach of the state-owned behemoths. Most of this middle class also lives in large cities, where the battle for the country's future is now taking place.

The demands of this middle class have become crucial. Its representatives understand that they must win the battle against corruption or leave the country, as they would, otherwise, have no future in Russia. That is why they have rallied around the young blogger Alexei Navalny, whose WikiLeaks-like anti-corruption campaign has brought forth evidence of billions of dollars stolen from state-owned companies, luxury limousines bought by officials and spectacular business careers by the ruling elite's "wunderkinder" sons and daughters.
[note: the need for a press to distribute information to a population ready to consume it and to work on it. This includes the ability to engage in sedition - accusing government of corruption. Legal freedoms have to be established and enforced]

The evidence of corruption produced by Navalny and the nickname he gave to Putin's political party, United Russia — "the party of crooks and thieves" — were perhaps the single most important factors behind United Russia's large losses in December's State Duma elections. Moreover, massive electoral fraud galvanized middle-class grievances, driving tens of thousands of protesters into the streets.
[note here the right to assemble]

Ironically, the wave of protests since then is consistent with the "modernization hypothesis" that Putin's government has always used to justify the rollback of democracy in Russia: Democracy is sustainable only if society is sufficiently well-off and has a solid middle class; until then, centralized rule is needed.

Now, it seems, sufficient prosperity has arrived, calling forth a middle class solid enough to demand government accountability, the rule of law and a genuine fight against corruption. Whatever happens in the March presidential election, the political mobilization of the middle class will eventually lead to democratization.

This is worth a class discussion. We might also wonder whether democracies once established can descend into a more tyrannical or autocratic form if the middle class checks out, or if freedoms to speak, assemble and use the press are curtailed.

Are the Occupy Wal Street Protests Covered by the First Amendment?

From Slate, a contemplation of the conflict between First Amendment rights to assemble and protest and the rights of government to secure health and safety:

You cannot fault Bloomberg for his goals; they embrace the fundamental tension at the heart of the First Amendment and public protest. Case law dealt the Occupy movement some fairly heavy cards. Their speech, on matters of core political concerns, sits at the top of the pantheon of what the First Amendment protects. And while Zuccotti Park is technically private, it functions as a public park, and was dedicated under local zoning laws for round-the-clock public enjoyment in 1968. Public parks enjoy an exalted status in the geography of the First Amendment, enshrined in the sort of language men like the first Justice Roberts used to conjure images of the Periclean agora:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

But practice First Amendment law long enough, and you learn that for every uplifting paragraph like that, there are a thousand cases bending an abstract right to the prosaic realities of protest.

From Slate: Occupying the First Amendment What the actions over Zuccotti Park teach us about public spaces and citizen protest.

Some musings on the extent of the right of assembly.

The media is trying to figure what to make of OWS

From Slate:

The mainstream media thrives on simple solutions. It has no idea whatsoever of how to report on a story that isn’t about easy fixes so much as it is about anguished human frustration and fear. The media prides itself on its ability to tell you how to clear your clutter, regrout your shower, or purge your closet of anything that makes you look fat—in 24 minutes or less. It is bound to be flummoxed by a protest that offers up no happy endings

Will OWS be sustained

As with the Tea Party protests, the real test of the Occupy Wall Street movement will be its longevity, but both movements helped crystallize what had been loose, disjointed opinions. The Tea Partiers were able to convert theirs into an effective political movement - which had an impact on an election. The OWS hasn't yet, but this author thinks they've had an impact already:

It has already altered our political debate, changed the agenda, shifted the discussion in newspapers, on cable TV, and even around the water cooler. And that is wonderful.

Suddenly, the issues of equity, fairness, justice, income distribution, and accountability for the economic cataclysm–issues all but ignored for a generation—are front and center. We have moved beyond the one-dimensional conversation about how much and where to cut the deficit. Questions more central to the social fabric of our nation have returned to the heart of the political debate. By forcing this new discussion, OWS has made most of the other participants in our politics—who either didn’t want to have this conversation or weren’t able to make it happen—look pretty small.

. . . But until these protests, no political figure or movement had made Americans pay attention to these facts in a meaningful way. Indeed, over the long hot summer, as poverty rose and unemployment stagnated, the entire discussion was about cutting our deficit.

And then OWS showed up. They brought something that had been in short supply: passion—the necessary ingredient that powers citizen activism. The tempered, carefully modulated, and finely nuanced statements of Beltway politicians and policy wonks do not alter the debate.

From Floyd Abrams: Flash Mob Violence and the Constitution

This article is behind a pay wall in the WSJ, but the Atlantic has a summary, which I've copied below. Floyd Abrams is a noted First Amendment Lawyer and he's concerned with the way some cities are dealing with a new phenomenon made possible by social media: flash mob violence. Recall that the recent revolutions in the Middle East and elsewhere have been made possible by social media. It's impact is not yet fully realized. Does government have the right to restrict its use since some might use it to organize criminal activity?

From the Atlantic Five:

Floyd Abrams on flash mobs and First Amendment rights Flash mobs--large groups that assemble by means of text message--sometimes act dangerously or lawlessly. "In doing so, they have raised difficult policy and legal issues, including questions relating to the role of the First Amendment," writes lawyer and author Floyd Abrams in The Wall Street Journal. Recently, mobs have beaten passersby and robbed stores. Official responses to the trend vary. In Cleveland, the city council passed a law banning "improper use of social media to violate ordinances on disorderly conduct, public intoxication and unlawful congregation by promoting illegal flash mob activity." During the British riots, David Cameron considered censoring social network sites. "But by focusing on the newer technological means of communication and not on the illegal conduct and its causes, they miss the point that it is not criminal to meet, let alone to plan to do so--but to engage in criminal conduct." The Cleveland mayor realized this and vetoed the proposed law. But the legality can become ambiguous. In San Francisco, the BART public transit system heard of a planned disruption to their service by groups organizing themselves by cell phone, so they disabled the underground fiber optic network. The plan worked, but the ACLU and others criticized the group for violating the liberties of all BART passengers. "As the proposed Cleveland statute illustrates, barring all people from engaging in constitutionally protected speech, even for a limited time in a limited space, raises troubling First Amendment issues," writes Abrams. "There will be more."

Stopping the Tsunami

Middle Eastern leaders are doing what they can to prevent the unrest which deposed leaders in Tunisia and Egypt from affecting them. It involves limiting expression and assembly of course.

To quell the noisy street displays of democratic fervor, many governments have relied on their rusty toolbox of repression. Yemeni security forces unleashed busloads of recruited counter-demonstrators armed with clubs and rocks to confront around 1,000 people marching to celebrate Hosni Mubarak's downfall, and then sent in riot police with their water cannons and tear gas. In the West Bank, the Palestinian Authority could not stomach demonstrations whose focus was not the Israeli occupation, but a demand for unity and fair elections in their own quasi-administration. There too we saw the stale repertoire of violent attacks, arrests, beatings, and torture of peaceful protesters demanding serious political change.

Syria and Libya acted preemptively, arresting activists likely to organize any street protests, saturating public places with security forces. In these countries, even a rally of a dozen people is treated like a threat to the status quo. President Mahmoud Ahmadinejad of Iran combined rank hypocrisy with his trademark brutality, congratulating "the justice-seeking movement in Egypt" while silencing Iranian protest leaders and dismissing their planned solidarity march as "divisive."

The Tea Party's Lucky, Things Could Have Turned Out Much Worse

A day after the most significant street protests in Iran since the end of the 2009 uprising there, members of the Iranian Parliament called on Tuesday for the two most prominent opposition leaders to be prosecuted and sentenced to death for stirring unrest.


read on....

No Right to Assembly in Egypt

Here's a depressing post which illustrates the value, to autocrats, of limits to the right of assembly: 

Egypt seems to be returning slowly to normality. True, in Tahrir Square, the heart of Cairo, thousands remain to chant the slogans of Resistance, but you can breathe the air of a sad defeat. Surprisingly, protesters have lost.

Boys returning home from Tahrir Square have disappeared, taken by officers of the Mukhabarat, the Egyptian intelligence service. The same intelligence service that was controlled by Omar Suleiman, now the Vice President who is leading so-called transition from the Mubarak regime. The dream of a democratisation of Egypt, the dream of this spontaneous insurgency is being shelved by a regime that knows how to change to remain the same.

K Street Compensation

It pays (well) to run a non-profit, advocacy group, think tank, interest group or trade organization in DC. So says the National Journal.

Does the Westboro Baptist Church Push the Limits of Peaceable Assembly?

We're covering participatory rights this week in 2301, including the right to peaceably assemble. The, let's say unique, protests of the Westboro Baptist Church (wikipedia entry) have pushed the limits of what is and is not peaceable.

The New Republic reports on their attempts to expand their protests to New York.

The Clampdown Succeeds

Myanmar's military rulers stormed Buddhist monasteries, kicked everyone off the streets--those they didn't kill, prevented groups of more than five people from meeting, and shut down access to the internet. It seems to have worked.

Though reports suggest that the military rulers are being criticized across the globe, the criticism from the country's key trading partners--India, China and Russia--are not backing words with action. The country is rich in natural resources and none want to lose access to them.