Dispatches (XI): Walker Administration Interprets the Law

With update, wherein the Walker Administration complies with the third temporary restraining order.


From the Wisconsin State Journal:

State officials say they will move forward with Wisconsin’s controversial collective bargaining law, despite a judge’s order barring its implementation — and a threat of sanctions against anyone who violates it.

Department of Administration Secretary Mike Huebsch said he has a legal obligation to implement all laws that have been passed by the Legislature, signed by Gov. Scott Walker and “published into law.”


Huebsch added that the Department of Justice and his legal counsel agree that the measure has met those requirements “and is now effective law.”


“It is my duty to administer that law,” he said.


Huebsch’s comments raise questions about whether he or other state officials could be held in contempt of court after a hearing Tuesday, when Dane County Circuit Judge Maryann Sumi made it clear that any further implementation of the law is barred.


“Now that I’ve made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin,” Sumi said.

Huebsch’s argument is based on the publication by the Legislative Reference Bureau (an arm of the legislature); statutes indicate that for the law to be in effect, it needs to be published in the state’s official paper, the Wisconsin State Journal. Indeed, the head of the Legislative Reference Bureau itself does not interpret the law as being in effect. From Wisconsin State Journal (3/26):


But officials with the nonpartisan Reference Bureau and the Legislative Council — the Legislature’s drafting and research agency and its legal service, respectively — said publication of the act online was only an administrative step.


Reference Bureau Director Steve Miller and Legislative Council staff attorney Scott Grosz both said La Follette still needs to designate a date for publication and actually publish the act in the Wisconsin State Journal — something the court order bars the secretary of state from doing.

Judge Sumi has posed an interesting question; as she notes, the dispute could be easily resolved. From Milwaukee Journal Sentinel:

As the legal fight continues, Sumi said the dispute could be resolved by the Legislature again passing the measure.


“I am dismayed at this point given the relative easy fix for this that thousands and thousands of dollars are being spent, all being footed by the taxpayers of this state to pursue this litigation,” Sumi said.

That is, if the bill were placed for a vote, but with 24 hours notice, presumably the bill would pass (if the Republicans voted as they did before), but this time clearly in accord with legal requirements.


Digression: Eliminating Benefit-Cost Analysis?


Here is something that struck me — as someone who teaches in a public affairs school with courses in policy analysis — as odd, particularly in a time when resources are limited. From the Milwaukee Journal Sentinel.

Gov. Scott Walker’s budget proposal would eliminate a law requiring state agencies to study the costs and benefits of outsourcing work.


That provision and others in the GOP governor’s 2011-’13 budget drew questions from both Republicans and Democrats at a briefing Tuesday before the Legislature’s budget-writing committee.


Current law says agencies must compare the costs of having private contractors do work costing more than $25,000 against what it would cost to have state workers do the job.


Speaking to the Joint Finance Committee, Administration Secretary Mike Huebsch said that the law was cumbersome and required an analysis of contractor costs to be done even in cases where state workers couldn’t do the work.


“We did a cost-benefit analysis on the cost-benefit analysis and found it was costing us money,” Huebsch told the committee.

That analysis is definitely one I would love to see. (I am hopeful that the “we” in the passage refers to him and staff.) The article continues.

Under Walker’s bill, the cost-benefit analyses would be retained only for engineering services at the state Department of Transportation.


The proposed change drew questions from Sen. Luther Olsen (R-Ripon) and Rep. Tamara Grigsby (D-Milwaukee). Olsen said he didn’t want to burden state agencies with red tape but also wanted to make sure that agencies weren’t spending money unwisely in a time of tight budgets.


“Can you explain why, when we’re in a time of serious fiscal trouble, we would not want to do a serious cost-benefit analysis?…When you are cutting government and cutting programs, you can’t afford to make mistakes,” Olsen said.


In May 2009, a legislative audit found that the state Department of Transportation outsourced 125 construction engineering projects over 16 months even though it determined each one of them could have been done for less using state workers.


Using state workers instead of outsourced engineers could have saved $1.2million during that period, the Legislative Audit Bureau report found.


State officials are often reluctant to hire more workers because of concerns that they will have to pay those costs for years into the future. Contractors, while sometimes more expensive, are paid on a project-by-project basis.

For those interested in learning about CBA, see this collection.


Update, 10:56am Pacific, 3/31


From Wispolitics.com:

Budget Blog: Sumi declares collective bargaining changes not in effect


3/31/2011


Dane County Judge Maryann Sumi (left) signed a revised temporary restraining order this morning declaring the legislation changing collective bargaining powers for public employees has not been published and is not in effect.


In response to the order, DOA Secretary Mike Huebsch said the agency will suspend implementation of the legislation, even though he continues to believe it was properly published and is law.


Sumi’s order, sent to the media this morning by the Dane County DA’s office, comes on the heels of statements by the Department of Justice and Huebsch that the effect of her earlier restraining order was unclear and that the changes were still law.


A spokesman for Assembly Speaker Jeff Fitzgerald referenced his prior comments that the lawmaker found it disappointing the judge was interjecting herself into the legislative process with “no regard to the state constitution.”

And Other Changes…


From the Capital Times:

Grass Roots: Capitol Police have blocked meal for the homeless in wake of protests


A volunteer group that puts out a spread for homeless people every Sunday afternoon has been out in the cold for weeks since the Capitol Police barred them from the statehouse, where they’ve been serving up a weekly meal for years.


Edged out by crowds of protesters in mid-February, Savory Sunday organizers say Capitol Police refused last Sunday to let volunteers and the people they feed shelter themselves under the portico of the Capitol, despite the cold and rainy weather.


The meal served at the Capitol is popular with homeless people who congregate downtown, but its future is up in the air.


Capitol Police want to meet with meal organizers “to see if they can accommodate them,” Carla Vigue, a spokeswoman for the Department of Administration, which oversees the Capitol Police, told me Friday afternoon. The “cafeteria” area in the basement where the group serves the meal, was used as a staging area for police during the peak of the protests, but is less in need now, she says.


But meal organizer Tom Barry tells me that Capitol Police told him Friday that the group could resume serving on April 3. The arrangement would be week-to-week, Barry says, depending on the number of protesters at the Capitol.

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33 thoughts on “Dispatches (XI): Walker Administration Interprets the Law

  1. C Thomson

    Whee! Here we go again!
    Is there a pony underneath all this brown stuff? I mean, it must signify something? Some deep issue? And not just the professoriat spewing ’cause their knickers are in a twist?
    I think we should be told…

  2. Menzie Chinn

    C Thomson: If you would be so kind as to be specific about what you object to, that would be useful. Is there a mis-representation, or some other error of omission or commission?

  3. Babinich

    In May 2009, a legislative audit found that the state Department of Transportation outsourced 125 construction engineering projects over 16 months even though it determined each one of them could have been done for less using state workers.
    Using state workers instead of outsourced engineers could have saved $1.2million during that period, the Legislative Audit Bureau report found.

    Talk about a loaded statement… It all depends on the skill set required. All too often the inexperienced make assumptions that a little of this and a little of that and whala you have a new age government worker capable of accomplishing any task. I am sorry apparatchiks; training requires more than sitting through an instructional government video.

    I totally agree with Sen Olsen. The question is whether it is possible to find some core group of government bureaucrats capable of producing non-biased analysis.

  4. kharris

    I second Menzie. C Thomas, your response looks for all the world like one of those knee-jerk sneers, calculated to belittle efforts that can’t be criticized on their substance.
    ‘Cause I as understand these things, a bunch of separation of powers, nation-of-laws-not-men batch of issues are raised by a governor refusing to follow established rules in passing laws, and refusing to honor court orders in implementing them. You know, foundational stuff that is important to democracy and fair play.

  5. Ricardo

    I doubt there are few here who do not understand that if government does anything it studies an issue to death. What private business does in weeks a government is fortunate to get done in years.
    I realize that most in government have never run a business or had to be concerned about ROI, but in the real world analysis is done on a cost/benefit basis. You can always do more analysis but does it actually pay for itself.
    An analysis that shows that government workers could have done a job for $1.2 million less than a private contractor does not prove that it would be more cost effective to use the private contractor. What it actually says is that the governent departments there would have done the job are at least $1.2 million over staffed and probably more.
    Additionally, when this kind of analysis is done it only looks at one side of the equation. How much additional work and revenue is generated by having a private firm do the work rather than public employees? The cost of the government is totally just that, cost. In truth if the work can be done by the private sector it should always be done by the private sector.
    Essentially, an analysis of this kind is to justify keeping the massive expansion of government. It is not so much a dollars and cents question but a political question. Is it better to socialize work away from the private sector or privatize and increase government expenditures?
    I don’t think Menzie hides which side he is on.

  6. GregL

    Ricardo said: “The cost of the government is totally just that, cost. In truth if the work can be done by the private sector it should always be done by the private sector.”
    Then if all the work is done by contractors our taxes can go to zero?

  7. Dirk

    “In truth if the work can be done by the private sector it should always be done by the private sector.”
    In truth, just about any function could be done by the private sector, inclduding the milatary, as mercenaries have been around since at least the time of the Roman Empire. Do you want to do away with the Marine Corps and replace them with Blackwater? Your argument is one that would leave us with no government at all. Ricardo, this is America, love it or leave it. You might try Somolia, it fits the sort of government you seem to want.

  8. mp

    “Then if all the work is done by contractors our taxes can go to zero?”
    Yes! That’s the BEAUTY of the Invisible Hand!
    So, sell ME the George Washington Bridge and your cost of upkeep will go to ZERO!
    But, you WILL pay my toll, which will be FAIR, no more than what the market will BEAR. If YOU don’t like my toll, or can’t afford it, you’re free to SWIM across the Hudson River. It is, after all, a FREE country.
    If YOU drown on the way, that’s YOUR problem.

  9. Jon

    “An analysis that shows that government workers could have done a job for $1.2 million less than a private contractor does not prove that it would be more cost effective to use the private contractor. What it actually says is that the governent departments there would have done the job are at least $1.2 million over staffed and probably more.”
    I don’t see how A leads to B here. It specifically mentions that the state workers would have to be hired for this project, so clearly the issue is not one of overstaffing. Believe it or not, sometimes an organization which doesn’t seek profit can accomplish tasks for less than an organization seeking to maximize profits.

  10. kharris

    So, instead of merely sneering, as C Thomas seems to have done, ricardo sneers and offers false analysis. What an improvement.
    OK, whenever you see a declaration that relies on “everybody knows”, even when it is dressed up as “there are few here who do not understand”, your manure alarm ought to go off. This is essentially an effort to make the reader a part of the unsupported assertion. So, we have ricardo claiming that a favorite sneer from the “privatize government so my buddies can profit from government spendig” crowd is absolute truth. No, not all government activity requires study first, and government activity that requires study generally requires it, regardless of who performs the activity. So ricardo’s little gem on that point is either misdirection of nonsense, most likely both.
    Same with the “everything government does is a cost” thingie. That claim isn’t even in a form that can be assessed. It’s so broad as to be meaningless, which is what one wants, I suppose, if assessment would be bad for the claim one is making.

  11. Frank in midtown

    Past performance may not be an indication of future performance, but the Gov.’s track record on such matters is poor. His mayorial legacy is not turning out to be one of enduring acts, but rather expensive examples of mis-government. Enjoy your privatized power plants, maybe you’ll be the first example of privitized power that ends up cheaper for the rate payers.
    Greg, the preamble says we formed this Union for justice, common defence, general welfare, and liberty. All four reasons, not just one and certainly not just the last listed.

  12. jonathan

    Under the Constitution, the executive branch may not willfully disobey an order of the judicial system. If the GOP respects the Constitution, they should not be flouting court orders. They can appeal. They can seek a stay. They can’t defy. That’s illegal under the Constitution.
    As for private cost benefit analysis, consider prisons. Turns out privatizing prisons adds cost, something that was pointed out in studies beforehand. Why? It is not only because prison must be run to certain standards so there is less efficiency to generate, but that the contracts are issued on a form of cost-plus basis similar in important ways to utility pricing. That means you can’t lose money running the prison and so you get a profit over a cost base. Without having meaningful capital risk, “privatization” is an illusion and what has actually happened is a the handing of public money to a small number of private owners. This is actual “crony capitalism.”

  13. LAS

    “Then if all the work is done by contractors our taxes can go to zero?”
    This is not really about taxes shrinking to zero; it is about tax money being funneled differently, to benefit some private equity group more. It is also about less accountable decision making about where taxes go and therefore less choice for taxpayers.

  14. Ricardo

    Jon,
    I believe you point is valid, but how can government hire workers to do government jobs at a lower rate than private business? Does this mean that government will pay the workers less? Does it mean that the private sector has less experience so the learning curve is less? Does it mean that government management is better than that in the private sector? All of this is hard to believe. As Menzie often says about studies he disagrees with, I would love to see this study!

  15. Ricardo

    GregL wrote:
    Then if all the work is done by contractors our taxes can go to zero?
    A nice thought but no. There actually are some things that government does better than private business. I believe that the government is necessary to enforce contracts so a legal system is important. I believe that national security is done better by the government. Beyond that I do not see the government doing a better job than the private sector.
    But understand, this is not always about cost effectiveness. Sometimes it is simply about liberty and freedom. Someone may prefer a nanny state directing every action. I do not. I prefer to be given as much freedom as possible. Now history has proven that the more freedom a people have the more prosperous they are, but I support freedom for freedom’s sake.

  16. Ricardo

    mp,
    I think I need to give you my little speech on the benefits of free trade.
    When you enter into a trade you do it because you value the item you are receiving more highly than the item you are giving, and the other party to the trade values the item you are giving more highly than the item you are receiving. Both of you benefit.
    When we expand that to business, businesses understand that to entice traders into their business to trade away their dollars for their products they must have something the trader wants more than the dollars. Along with this the traders must also not have a fear of the business.
    You have expressed a myth that is common that businessmen don’t care about the wellbeing of their customers but this myth could not be farther from the truth. Just look at any advertisement and you will see a business trying to please its customer base.
    But not move to government. Government doesn’t have to please people. Government orders people to do things. There is no trade where both traders are better off except that the one who complies with the mandates of government keeps from going to jail. Governments are coercive and their interaction with citizens is a coercive interaction.
    A good example is the “advertising” that government does to entice drivers to wear their seat belts. Does “Click it or ticket” ring a bell? This is a great example of a coercive government at work.

  17. Kevin O'Neill

    Ricardo said:

    An analysis that shows that government workers could have done a job for $1.2 million less than a private contractor does not prove that it would be more cost effective to use the private contractor. What it actually says is that the government departments there would have done the job are at least $1.2 million over staffed and probably more.

    This is incoherent gibberish. “A” can do the job cheaper than “B”, so “A” is over-staffed and over-funded? My dog draws better logical conclusions.

  18. Frank in midtown

    No social costs in your world Ricardo? Typical free-riding libertarian, expecting all the social goods without feeling obligated to contributing toward them while avoiding recognition of the social costs of their “free” trade. I guess it’s a “little” speech because that’s how much thought went into it.

  19. mp

    “You have expressed a myth that is common that businessmen don’t care about the wellbeing of their customers but this myth could not be farther from the truth.”
    ________________________________
    Ricardo, as a businessman, your comment reminds me of something I read long ago concerning the drilling of oil wells:
    “They don’t have to use our bit, they can always use a pick and shovel.”
    –Howard R. Hughes, Jr., Pres., Hughes Tool Co.
    Oh, and by the way: if you truly are going to privatize everything, I want that damned bridge and will make it worth your while.
    Sometimes, Ricardo, the invisible hand is an iron fist.

  20. Engr

    “They don’t have to use our bit, they can always use a pick and shovel.”
    mp, are you saying that the inventor of a new device is not allowed to profit from that device? If the price is too onerous, alternatives will be found.
    In LA, we had a private company widen a freeway using their own capital and made it a toll road. It reduced congestion for everyone. Those willing to pay the extra toll get to bypass traffic.
    As far as analysis that says any governemnt entity could do it cheaper, how many government programs actually come out on budget and schedule? Are they comparing post-facto costs with estimated costs? In that case, it is a horrible comparison.

  21. mp

    “mp, are you saying that the inventor of a new device is not allowed to profit from that device?”
    No, I’m not saying that all.
    I’m saying, and as a businessman, don’t expect me to have your “wellbeing” in mind.
    I’m also saying there are certain jobs best left to government, even if it is more expensive for them to do it.

  22. kharris

    Sadly, ricardo’s ridiculous argument has served its purpose. Two purposes, in fact. First, it has distracted us from discussing real substance (trolling 101). Second, ricardo has drawn attention to himself as a way of distracting us from the real substance – attention his argument surely does not deserve.
    So, let me urge Menzie to continue sending reports from the trenches, and urge the rest of us to pay attention to the next report rather than ricardo, the right-wing Tokyo Rose.

  23. C Thomson

    Professor Chinn, how could I ‘object’ to a thread that gives so much harmless pleasure? This one is better than Trivial Pursuits. I mean who could top ‘ricardo, the right wing Toyko Rose.’
    And pretending that there is deep significance in WI statehouse antics. McCarthy, Nazi rebirth, death of academic freedom, outraged bearded historians – yadda, yadda, yadda. Wow!
    Priceless.

  24. Menzie Chinn

    C Thomson: I asked what specifically you objected to in the post (you were the first commenter.

    The original post referred to the Walker Administration’s decision to ignore the temporary restraining order, and the desire to eliminate the use of benefit-cost analysis. I think separation of powers, and the use of economics (which I know you dismiss as a branch of history, for some inexplicable reason) are legitimate topics of discussion. In this post, I did not bring up McCarthy and bearded historians; those came after your comment. And with respect to “Nazi rebirth”, you are the only person to have brought that up in this thread.

    So, let me repeat, with respect to the post:

    If you would be so kind as to be specific about what you object to, that would be useful. Is there a mis-representation, or some other error of omission or commission?

  25. C Thomson

    Dear, oh dear Professor Chinn. You take me too seriously. (Or perhaps yourself?)
    There are several interlocking issues here. One is clearly the use of irony. Though Americans disapprove of irony in public debate, Keynes and Bastiat equally clearly didn’t so we can chalk this up to an American cultural problem.
    Which is linked to our love of turning the completely trivial into matters of high dudgeon. No one will know for years whether it matters in the least whether the state employees of WI – or OH – are allowed by the taxpayers to nag them collectively. So the current squabbles are just piffle and fun politics.
    And then there is your objection to thinking of economics as a branch of history. This is hard to understand since every economist from Hume to Keynes would have grasped what I mean.
    Try the old Cambridge division between Physical Science, like classical physics, and Moral Science, like economics and history. The moral sciences have no predictive value but are intensely valuable in understanding humanity. They are of necessity backward looking.
    Modern academic economists have no forecasting ability so their work is useful as a historical tool. Yes, ceteris paribus they can predict but, as the 364 learned economists who signed the letter predicting doom from Mrs Thatcher’s cuts found, the damned ceteris doesn’t stay paribus.
    Of course, it is always good to dazzle with numbers. You lose most of the human race that way and leave them unable to rebut your arguments. But remember Keynes’s warning: ‘Too large a proportion of recent mathematical economics are mere concoctions, as imprecise as the initial assumptions they rest on, which allow the author to lose sight of the complexities and interdependencies of the real world in a maze of pretentions and unhelpful symbols.’
    CBA is a good illustration of what Keynes meant. It doesn’t work with questions like how fast will the baby be able to run? Over any significant period, socio-political issues invariably ellude intellectually honest CBA. So, CBA is used for political posturing. More piffle.

  26. Menzie Chinn

    C Thomson: Thank you. I really, really would love to see an example of what you consider “intellectually honest CBA”. I am confident Econbrowser readers would be interested as well. If you send me an example, I would be very much obliged.

  27. C Thomson

    A CBA on which computer system to buy or where to put a large bridge is useful. Simple enough?
    You can’t do an honest CBA on whether to fire the air traffic controllers. Or whether to break the UK coal miners strike. Or whether to drop the A bomb on Japan.

  28. Menzie Chinn

    C Thomson: I wasn’t discussing application of CBA to those sorts of questions; the state government is typically applying CBA to things like upgrading a stretch of highway, or replacing a building (well, not the latter if the planned legislation goes through). It seems to me silly to dismiss the use of CBA in those cases.

  29. beezer

    Nice post. The commentators appear to have wandered off, however.
    It does seem clear Walker has a problem with the Wisconsin constitution. And it does seem predictable that he will spend quite a bit of taxpayer money in court as a result.

  30. Ricardo

    kharris wrote:
    Sadly, ricardo’s ridiculous argument has served its purpose. Two purposes, in fact. First, it has distracted us from discussing real substance (trolling 101). Second, ricardo has drawn attention to himself as a way of distracting us from the real substance – attention his argument surely does not deserve.
    So, let me urge Menzie to continue sending reports from the trenches, and urge the rest of us to pay attention to the next report rather than ricardo, the right-wing Tokyo Rose.
    k,
    This is not my blog but please don’t use my name if you are just going to babble. Struggle a little and actually make a cogent argument.

  31. Ricardo

    mp,
    I’m saying, and as a businessman, don’t expect me to have your “wellbeing” in mind.
    mp,
    If you really mean this, that you do not have the wellbeing of your customers in mind, I suggest you find yourself a safety net real soon. You p*ss off your customers and you will not be a businessman for long.

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