Friday, June 28, 2013

MN Republican Party As The Bourbon Restoration

Tallyrand famously said of the Bourbon restoration that they learned nothing and forgot nothing. This classic description of fatal failure put me in mind of the Republican Party of Minnesota. After the roughly 18 month interim term as Chair by Pat Shortridge, we now have a full complement of party officers elected in the normal course of state central committee meetings. The early assessment of their performance is distressing.

Let's stipulate, first, that the bar is low for this evaluation. Everyone knows the trouble the party qua party has been in for some time. Yet the concerns I have don't focus on the usual problems: party debt and how to retire it, an actual function for the party given its abysmal record in statewide races and a last gasp attempt at making the endorsement worth the effort.

No, the trouble is that new leadership is off to a wrong start. Chair Keith Downey had an impressive dog & pony powerpoint presentation in the run up to his election. It can be reduced to the cold fact that republicans were out manned, out gunned and out financed at every turn last cycle, which came after a rather crushing defeat for the DFL in the 2010 election. I saw an impressive amount of data and nomenclature but no real understanding as to why republicans lost house and senate majorities in the shortest time possible. Except for that old, you know, didn't get the most votes thing. Isn't that why we're still in business? To win?

Downey rightly focuses on identifying republican voters, something as embarrassingly basic politically as indoor plumbing. But indoor plumb we must so I was encouraged by his unvarnished, unsentimental focus on that need.

Regrettably, he is directing approximately $100,000 of party money (no one I know seems to know the source for it) to the Civis Group, run by Mike Scholl, who is best known as Bob Cummins' gatekeeper and all around lackey. Cummins founded the Freedom Club and was instrumental in destroying the republican brand last fall through his pet project the marriage amendment ballot initiative. Cummins also started Civis Group so all current party roads lead to Bob. Right.

The Freedom Club wasted an enormous amount of money on Keith Downey's race for Minnesota state senate. Downey ran a poor campaign. Downey lost. The Freedom Club is dangerous precisely because it doesn't realize it is.

Is directing one hundred thousand dollars to Civis a manner of paying back the favor? Could well be and could be no big deal because things like this happen in party politics.

I understand, though, that Civis Group will keep all of the data for which the party is paying it to collect. Why should that happen? Such a condition should never have been agreed to and the contract should be modified at once.

Worse, the Civis Group is advising both the Emmer for Congress campaign as well as the Thompson for Governor campaign. How can a conflict of interest this obvious not be apparent to Downey? If Civis wants to corner the market on angry, white, male, out of touch republican has beens, fine. It should not be given party business as a simple matter of fairness & integrity for those other republicans running in those races. One wonders, in passing, who has provided what fake jobs to Emmer & Thompson with which to support themselves while they run for office.

Beyond sucking up to his benefactors, Downey has hired Bill Walsh as communications director. Walsh's record is one of abject failure in that very position but he's Keith's friend and so he got the job. Is my Bourbon restoration analogy making more sense now? After his shilling for Kurt Bills, I didn't think Downey's judgment could get worse.

On Tuesday of this week DFL Rep. Ryan Winkler tweeted that Supreme Court Justice Clarence Thomas was an Uncle Thomas. Calamity ensued and Winkler became a national story.

Where were Keith & Bill? Nowhere, apparently, as they couldn't even generate a press release on the matter, let alone pull together a press conference. This is simply unforgivable. The next day Downey sent out a badly written email rightly bemoaning the loss of 150 jobs in Minnesota. The idea, however, that both that email and something on the day of an exploding national story involving a rising DFL star couldn't both happen is ludicrous and pathetic. There was no excuse for missing such a rare opportunity.

Yesterday Downey published a quintessential Pollyanna op-ed in the Pioneer Press. You can read it by clicking here. Stamping his feet he decried name calling, and, tightly pursing his lips, demanded the DFL and affiliated groups cease their extremely well oiled, effective messaging machine. Because that's all it takes, you know: some half baked whining about a superior message machine and clucking about the by-now-embedded-in-our-political-culture Alinsky principles of political warfare.

As if this wasn't enough, MN GOP Secretary Chris Fields weighed in on Twitter that Tuesday of Winkler's self-immolation but only to squander the opportunity and make a hash of things. Fields tweeted that if Justice Thomas is seen as Uncle Thomas by Winkler then that must make Winkler poor white trash. I'm starting to think MN GOP personnel may be DFL plants.

Deputy Chair Kelly Fenton continued to demonstrate her lack of leadership with which she is synonymous by doing or saying nothing about the national Winkler story. No, tweeting doesn't count because, remember?, it started there? Yep! Then, you know, scooted out the door into national media pronto, 'member? That's where you and the rest of the party didn't chase the story. That's right: a national story you guys let go. Is anyone awake at headquarters?

Local media were more shameless than normal in their grotesquely sympathetic coverage of Winkler, the DFL's Eddie Haskell. They essentially took his dictation and left it at that. No questions from these poodles. The mind runs riot when thinking of their "coverage" had the political shoe been on the right foot. Everyone reading this knows I'm correct in that regard.

And yet--that damn yet!--who was going to call out media coverage when the Republican Party of Minnesota itself was dead to that story, itself failed to capitalize on it and, instead of doing anything effective, itself wrote juvenile & useless op-eds, wanting to be rewarded for it?

All anyone has to do to know what's wrong with the Republican Party of Minnesota is to simply look at it.

Image: Coat of Arms of the Bourbon Restoration

Sunday, June 9, 2013

Media Must Intervene In Brodkorb Lawsuit

On Friday, June 6th, United States Federal Magistrate for the District of Minnesota, the Honorable Arthur Boylan, issued a protective order in the Michael Brodkorb v. Minnesota Senate lawsuit addressing how sensitive information and material should be treated now that discovery is set to proceed in earnest. For Brodkorb, getting to the heart of his gender discrimination claim has been a long time coming. Unfortunately for him, the protective order effectively renders his federal lawsuit invisible to the public. Worse, though, than one private litigant's discomfort, the protective order keeps the people of Minnesota from knowing how their elected officials handled this by now very public matter.

The reason for this is that the protective order breathtakingly allows one party to designate "confidential" anything they see fit. The only remedy to this egregious grant of discretion is for the other party to file a motion and hash it out before the Magistrate. This is called motion practice and it isn't cheap. Typically protective orders delineate those things that can reasonably be anticipated to be confidential as such, with provisions for one party to assert confidentiality as to others but with the burden of proof on that party.

The current protective order places no burden of proof, as an initial matter, on the party claiming confidentiality but, rather, allows it carte blanche and shifts the burden to the objecting party. In the posture of the current lawsuit, Brodkorb is tasked with fighting every disingenuous designation of "confidentiality" that Minnesota Senate lawyers will make, whether or not that strictly would be helpful to his case. This is grossly unfair but more to the public than to Brodkorb, as unfair as that is.

For a glimpse into the mindset of Senate counsel, hired unilaterally by the profoundly stupid then Secretary of the Senate Cal Ludeman, look at what $330 an hour attorney Dayle Nolan had to say about the protective order: "The press coverage has been fast but fact-free, and would support the idea that a protective order would be making the litigation be more normal litigation." Stupid squared.

The usual disclosures: I'm friends with Brodkorb and am an attorney, though I do not represent him in his federal lawsuit. Amy Koch is my client and friend as well. All this has been public record for some time but bears repeating for those readers of this post who may not know it. If I'm going to blog about transparency, I should try to embody it.

Put another way, the protective order keeps from, at least as an initial matter, the Minnesota public what both republican and democrat senators did in this matter. What possible public policy good could be advanced by such onerous provisions? Both the attorneys defending the lawsuit, as well as the Senate itself, are funded by the taxpayers. It seems the Magistrate gave the public no shrift, let alone short, in his decision making process. This is error.

Brodkorb has from the first moment of his lawsuit stated publicly and repeatedly that the names of the other relationships of which he is aware ought not and should not be become public during the discovery process. I understand he and his lawyers readily agreed to keep such information confidential. For anyone to suggest otherwise is dishonest and malicious.

No, the problem here is what is called in law "over breadth." Some confidentiality should obtain in this lawsuit. The problem is that what the Magistrate has ordered keeps from the public information legitimately in the public domain.

As one friend put it: "I think I'm entitled to know what Senator Senjem said to Senator Michel about this matter." Quite right. But the current protective order allows the senate to slap "confidential" on that discussion and leaves it to a private litigant with necessarily limited financial resources to strip that label from the information. I'd even put it another way: I'm entitled to know what Sen. Bakk has said to others about this lawsuit, including political calculations not covered by the attorney client privilege. I've always thought Senator Bakk should settle this lawsuit and hang it around Senator Hann's neck. But that's just lovable me.

Now then to the point: Minnesota media should intervene in this lawsuit for the sole purpose of challenging a shockingly over broad protective order. I'd feel the same way if the litigant was a democrat suing what was then a DFL controlled senate. Why do I suggest this?

Because the press, traditionally, has thought of itself as a safe keeper of the public's right to know. If I can put aside my cynicism on this point for a moment, you can too. That media in our age have become an arm of the Democratic Party should not prevent Minnesota media from doing their job in this instance. Whether bloggers would have standing to intervene is an interesting question. Maybe Powerline would like to become relevant again and explore that possibility.

The question is straightforward: why should the operations of the Minnesota Senate be exempt from public scrutiny in a public lawsuit? They should not. We simply can't depend on the meager resources of Brodkorb and his attorneys to vindicate this important point. Those are not his fish to fry, not why he filed his lawsuit. That point has, however, become directly implicated in his lawsuit.

Brodkorb's attorneys must file an appeal to the federal judge assigned to this matter, the Honorable Susan Nelson. At that point attorneys for any number of media outlets should seek permission to intervene in support of making the protective order less onerous, less broad, less an affront to those of the governed. If traditional media do not do so, I'm happy to gather a number of pro bono attorneys and solicit Aaron Rupar & City Pages to intervene. It would hardly be the first time they showed up local media. No matter how it happens, media must intervene.

It's showtime, folks.