Wednesday, May 6, 2015
This post was written by Nate Ela, of COWS
Monday's post described how, at the turn of the twentieth century, the model law emerged as a major new tool of governance in the United States. A hundred years later, model laws are ubiquitous, used to influence public policy across a wide range of areas. Today and Friday, we’ll highlight some recent legal and sociological scholarship on how model laws are being used, and what influences whether legislators decide to act upon them.
Model laws figure into the story Douglas NeJaime and Reva Siegel tell in a forthcoming Yale Law Journal article describing the rise of what they call “complicity-based conscience claims.” Made familiar by Burwell v. Hobby Lobby Stores, these claims arise when “Persons of faith … seek religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others.” Professors NeJaime and Siegel argue that rather than settle conflict, as is sometimes suggested, these types of claims often serve to extend it. Claiming a religious objection can offer a means of criticizing the norms of an entire community, and the actions of nonbelievers.
Pointing to the Healthcare Freedom of Conscience Act, a model anti-abortion law published in 2013 by Americans United for Life (AUL), NeJaime and Siegel argue that model laws provide a means of extending conflict via conscience-based coercion claims. The AUL model law, they note, “seeks to spread the logic of complicity-based conscience claims to more types of healthcare, to more actors, and to more acts.” And in at least some states, the strategy is getting traction: Mississippi’s recently-enacted healthcare refusal law is explicitly based on the AUL model.
Vanessa Zboreak, a professor at Wake Forest, recently published an article in the Wake Forest Journal of Law & Policy analyzing two ALEC model laws designed to preempt local land use laws that restrict large confined animal feeding operations, or CAFOs. As Zboreak points out, these models are in line with a wide range of recent bills aimed at preempting municipal lawmaking, though it would be incorrect to assume that an ALEC model lurks behind every attempt by a conservative state legislature to preempt local authority. One of the most interesting sections of the article parses the relatively innovative way in which ALEC’s “Act Granting the Authority to Rural Counties to Transition to Decentralized Land Use Regulation” law goes about preemption:
Because the grant of authority to decentralize is only available to counties, and not to municipalities, by choosing this approach counties would be able to preempt zoning or planning by municipalities located within the counties. Generally, in states where both cities and counties have land use planning authority, neither local government is subservient to the other…. Under this model bill, counties would be able to neuter the (often more progressive) voices of municipal residents and city councils. And to further encourage counties to avail themselves of this opportunity to consolidate their authority, states could quite easily tie county adoption of decentralization to other incentives, such as block grant monies, and thus ensure broad adoption of this approach.
Much recent media and scholarly attention paid to model laws, like these articles, has focused on how conservative activists have used them to great effect in order to advance their own favored causes. But progressives have sought to use model legislation to promote their own causes. Friday’s post will highlight an article analyzing the success of efforts to use model laws to prevent wrongful convictions.
Monday, May 4, 2015
This post was written by Nate Ela, of COWS
A while back, we noted a forthcoming article by Alexander Hertel-Fernandez, which asked who passes business’s model laws. We’ve been keeping our eyes out for other writing on model laws, and later this week we'll share a few recent articles.
First, though, it’s worth remembering that despite the recent wave of media and scholarly interest, the model law is hardly a new tool of governance. The graph below shows appearances of “model law” and some variations of the term, in books published since 1820 (and subsequently scanned by Google).
The meaning of “model law” during its first blip, around 1860, is generally different than current usage. Back then, “model law” referred to everything from a law that set the model for the Catholic church to a law seen as exemplary, but not intended to be replicated.
The rise of the model law as a mode of governance appears to have come in the Progressive Era, around 1910. In that year, the Russell Sage Foundation published a model tenement house law, and by 1912 the annual meeting of the Association of Life Insurance Presidents included a report on progress of a model law on the registration of vital statistics.
What isn’t reflected in the graph is that these social reformers and business associations were picking up on a movement for uniformity that got rolling a couple decades earlier. According to the official history of the Uniform Law Commission, the founding meeting of the American Bar Association in 1878 called for greater uniformity of state laws. By 1892, the Commission had been founded as a special committee of the ABA, and in that year, the Commission recommended its first three acts, one on the topic of acknowledgements, and two on wills and estates.
Uniformity was a hit, and the fever for model laws soon spread well beyond the ABA. By 1920 associations and reformers were circulating model laws for civil service, morbidity reports, weights and measures, and juvenile courts – and calling for more, to regulate everything from corporations to indoor ventilation. It was off to the races.
Later this week, we’ll highlight a few recent articles that give a sense of where the American passion for the model law has come, and how they are now being used to govern everything from abortion to farming, consumer protection to the right to counsel.
Wednesday, April 29, 2015
The title of this post is the title of an interesting new article authored by Evan Zoldan, available on SSRN. Here is the abstract:
The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to corruption and undermines the role of the judiciary. But the Court's weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that is, a principle that legislation should be disfavored as suspect simply because it singles out identifiable individuals for special treatment.
In this article, I argue that the value of legislative generality should be enforced as an independent constitutional principle. Three pillars--history, text, and philosophical considerations--support the conclusion that legislative generality is a principle of constitutional significance. First, the history of the revolutionary period leading up to the framing of the Constitution suggests that a key purpose of the Constitution was to address evils associated with special legislation. Second, the Constitution contains a number of under-enforced clauses that, when read together and in context, delineate a norm of legislative generality. Third, an interpretation of the Constitution that includes a value of legislative generality fits well with a number of philosophical traditions and leads to normatively attractive results. Together, these pillars support the conclusion that legislative generality is a value with constitutional weight and suggest that current constitutional doctrine should be modified to give effect to this principle. I conclude by calling for heightened judicial scrutiny over special legislation that offends the value of legislative generality, including contemporary special legislation in the areas of immigration, public benefits, and criminal law.
Tuesday, April 28, 2015
The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2016 AALS Annual Meeting in New York, NY. This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles. Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead discussion about the draft article.
Eligibility: The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less. All scholars, whether or not presenting a paper or moderating a discussion, are welcome to attend the program and participate in discussions.
Submission Requirements: Submissions should be drafts of articles relating to legislation and law of the political process, including articles related to legislative structure, the legislative process, statutory interpretation, and deliberation. Submissions should be near completion and expected to be submitted during the year following the program. Submissions should not exceed 30,000 words, including footnotes. The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2016. However, articles that already have been submitted to law reviews for publication, and accepted for publication, are not ineligible for this reason.
Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Evan Zoldan, email@example.com by 5:00 p.m. Eastern Time, Friday, October 2, 2015. Selected participants will be notified in late October.
Friday, April 24, 2015
It is with great pleasure that we welcome guest blogger Patricia Hureston Lee, Associate Professor and Director of Saint Louis University School of Law Legal Clinics. Professor Lee has a passion for being a legal educator and has previously taught at West Virginia University College of Law, Northern Illinois University School of Law, DePaul University College of Law, and the University of Chicago Law School, where she founded the Institute for Justice Clinic on Entrepreneurship. As Director of Saint Louis University’s Legal Clinics, Professor Lee works closely with attorneys, social workers, faculty, staff and students to fight injustices that disrupt harmony in our society. Saint Louis University Legal Clinics was recently selected to receive the Excellence in a Public Interest Case or Project. Professor Lee writes about the work that is being done at Saint Louis University and encourages all members of the legal community to stand up against injustice.
Justice is harmony according to Plato’s theory of justice (book 4, 434c). Through the lens of law clinical faculty that serve underserved populations, we see justice and harmony as virtues that our clients may begin to experience when they are free from a host of injustices they confront in their day to day lives. Examples of injustices that our clients face include excessive policing, excessive incarceration, tear-gassing, racial/ethnic profiling and eminent domain abuse. These matters and others have been at the heart of the public interest work of Saint Louis University School of Law Legal Clinics (SLU LAW Clinics) in recent months.
The Clinical Legal Educational Association’s board of directors recently announced that SLU LAW Clinics won the national CLEA award. The award is to be presented at the annual AALS Clinical Association’s conference on May 6, 2015 in Palm Springs, California, for the clinics’ legal work addressing civil rights and criminal justice abuses highlighted following the death of Michael Brown. Honored, the clinical faculty looks forward to accepting this award. I blog today to share with you some of the backstory of what has been going on in the SLU LAW Clinics and in our community prior to being honored with this award.
For more than forty-one years, the SLU LAW Clinics have provided pro bono legal services to the community and currently provide legal services in six clinical programs (Civil Advocacy, Criminal Defense, Entrepreneurship and Community Development, Externships, Judicial Process Externship and Mediation) that house ten practice areas. The dynamic team of seven clinical attorneys (Professors Amany Hacking, Brendan Roediger, Dana Malkus, John Ammann, Patricia Harrison, Patricia Lee, Susan McGraugh), one social worker (Lauren Choate), Professor of Practice (Steve Hanlon), and two staff members (Greta Henderson and LeAnn Upton) found a variety of ways to engage dedicated students, faculty and the community this current academic year.
Inspired by the social justice mission of the University and long before the tragic events of Ferguson on August 9, 2014, the Legal Clinics previously represented clients in litigation, transactional and regulatory related matters. However, the gravity of the circumstances of Ferguson, called for additional responses that could provide immediate solutions. Some of the solutions included hosting panels and doing community outreach and education for those who might be stopped by law enforcement officers. The Criminal Defense Clinic faculty and students educated members of the public with a “Know Your Rights” initiative. At the same time, the Civil Litigation Clinic took numerous litigation and regulatory steps to represent clients who had been adversely affected by municipal warrants and tear-gassing abuses. Many local and national collaborations took hold in Saint Louis County. Several doctrinal and clinical faculties collaborated to offer a current class called “Ferguson” that provided students a glimpse at the many issues that caused the world to view the injustices noted in Ferguson. Faculty responded to inquiries of the media to inform the public of issues relating to civil rights, constitutional, and criminal law.
Several faculty, including myself, and clinic students provided testimony before the governor-appointed Ferguson Commission, municipal, legislative and the executive branches. When I spoke before the Ferguson Commission at its December 1, 2014 meeting in Ferguson, members of the public passionately told many chilling stories, including stories of excessive detentions, fines and fees. There were other stories told by an entrepreneur whose business had been burned down. While present, I personally reflected on the gravity and breadth of the concerns raised by those testifying from Ferguson and other cities throughout St. Louis County. Very disturbing racial interactions and relations with police, a seismic lack of economic opportunities, educational disparities, historic real property steering, excessive policing, outrageous warrant and fees enforced by municipal courts, were just a few of the issues raised that one day in Ferguson. For me, it was one more exclamation point as to why it is so important that we, as clinical faculty, continue to be a powerful voice for the community.
While the issues raised by Ferguson captured the nation’s imagination, in addition to working on the matters mentioned above, the clinics continued to work with over a hundred students each semester, engage pro-bono clients and develop practice areas relevant to serving the community and advancing the professional skills of law students. We thank Robert Kuehn and other faculty from Washington University Law School for nominating their neighbor, SLU LAW Clinics for the CLEA Excellence Award. We appreciate this honor and hope to continue to address the many glaring injustices that our communities face. Furthermore, we hope to collaborate with the readers of this blog so that we can collectively make our communities a place where justice and harmony are a reality.
Patricia Hureston Lee
Thursday, April 23, 2015
In Kansas, wealthier individuals are paying much less income tax, while the working class might have to pay more in sales tax for basic necessities.
Due to an overhaul of the state’s tax system by Republican Governor Sam Brownback, Kansas is projected to collect $187 million less in taxes through June 2016 than anticipated. Before the overhaul, the state’s budget proposal required a $150 million increase in taxes every year, but in November 2014 tax collection was reduced by $88 million. Brownback hoped that a decrease in taxes would increase revenue and stimulate the economy, making up the difference. However, there has not been an increase in revenue as a result of the modified tax system given that Kansas’s economy has only grown consistent with the rest of the nation.
In an effort to fill the budget shortfall, lawmakers are proposing to increase sales and excise taxes. These taxes will ultimately have the greatest effect on the working class and further add to economic inequality. According to a recent report by the Institute for Taxation and Economic Policy, the average working class Kansan pays 11.1% of their income in taxes, while the wealthiest in Kansas pay 3.6% of their income in taxes.
According to the proposal, sales tax would increase from 6.15% to 6.3%. The reasoning behind this proposal is that an increase in sales tax would encourage people to save more and invest their money. As an article in the Washington Post explains, the less a person earns, the greater the percentage of their income is spent to meet basic necessities. While the wealthy have the option of reducing their spending by cutting back on luxury items, low-income individuals do not have the capacity to choose how to spend their money and will continue to spend all or a majority of their income towards basic necessities. And now they will get taxed more for meeting those needs.
Making it even harder for low-income Kansans, Governor Brownback signed a bill, HB 2258, limiting the use of public assistance benefits. Kansans who receive assistance through the Temporary Assistance for Needy Families (TANF) program will be banned from using the funds to go swimming or to watch a movie. The bill also limits the amount a TANF recipient can withdraw from the ATM to $25 a day. Representative Carolyn Bridges, a Wichita Democrat, stated during the House debate, “I just think we are simply saying to people, ‘If you are asking for assistance in this state, you’re sort of less than other people and we’re going to tell you how and where to spend your money.'”
For more information, see this article in the Washington Post.
Tuesday, April 21, 2015
The Fight for $15 movement, which has recently gained momentum and press, has brought attention to the fact that many low-wage workers are unable to obtain basic necessities, such as food, and medical access, with their paychecks alone. Despite working long hours, fast-food industry employees, home health aides, and even adjunct professors require government assistance programs, such as the Supplemental Nutrition Assistance Program (SNAP), Medicaid, and Temporary Assistance for Needy Families (TANF) to meet basic their needs.
Through tax dollars, the general public has provides the largest subsidies for employers of low wage workers. Although the economy has recently improved, the problem of stagnant wages combined with a decline in employer-based health insurance is creating a problem not only for hardworking families who struggle to make ends meet, but also for society. Since the current federal minimum wage, $7.25 an hour, is not enough to cover essential living costs such as shelter, food, and medical care, low-wage workers must rely on public assistance to survive. Tax payers’ dollars, which contribute to these programs, indirectly support businesses that outwardly refuse to pay a livable wage.
Recently, considerable emphasis has been placed on the ripple effects of low wages and the high percentage of working poor who need public assistance in order to access basic necessities. A study from the University of California Berkeley estimates that 52% of fast food workers, 48% of home health care workers, and 46% of child care workers receive public assistance. Data shows that state and federal governments are spending upwards of $150 billion a year on programs such as SNAP, Medicaid, TANF, and the Earned Income Tax Credit, programs that are intended to assist working families meet essential living costs.
A Restaurant Opportunities Center United report supports the UC Berkeley findings and reinforces the idea that low wages affect the greater population. By their estimation, working families who receive public assistance take home $9,434,067,497 from public benefits to subsidize living costs.
This issue has received growing attention through the 2012 born campaign Fight for $15, funded by the Service Employees International Union. Protests that took place on April 15, 2015 are being referred to as the largest mobilization of workers in the United States. Tens of thousands of protestors demanding better wages for fast food employees, health aides, and adjunct professors across the nation have closed a Southside Chicago McDonalds, marched through Boston, filled the streets of New York City, and protested inside of a San Francisco McDonalds.
Monday, April 20, 2015
From Prof. Marcy Karin and her clinic students, a nice roundup of new regulatory protections for LGBT workers, in the Huff Post blog.
Add to these protections a recent groundbreaking decision from the EEOC, which holds that, under Title VII, employers must provide transgender employees access to a restroom consistent with their gender identity and refer to them by their proper name.
Friday, April 17, 2015
Death Penalty Repeal in a Red State? And Family Member of Massachusetts Murder Victim Speaks Out Against Federal Death Penalty for Boston Marathon Bomber: “No More Darkness”
As a follow-up to this post last month, Nebraska just moved one significant step closer to repealing its death penalty. On Thursday, lawmakers voted 30 to 13 to advance the repeal bill—enough to override Gov. Pete Ricketts’ promised veto. Two more rounds of voting in the one-house legislature await. If Nebraska repeals its death penalty, it would join five others that have legislatively abolished the death penalty since 2007 (NJ – 2007, NM – 2009, IL – 2011, CT – 2012, MD – 2013). Importantly, it would also be the first red state to repeal the death penalty in over 40 years (North Dakota repealed its death penalty in 1973).
For more, see here.
In federal death penalty news, the sister of MIT Police Officer Sean Collier, who was killed by the Tsarnaevs following the Boston Marathon bombing, is speaking out against the death penalty for Dzhokhar Tsarnaev:
“Whenever someone speaks out against the death penalty, they are challenged to imagine how they would feel if someone they love were killed. I’ve been given that horrible perspective and I can say that my position has only strengthened,” Jennifer Lemmerman wrote. “I also can’t imagine that killing in response to killing would ever bring me peace or justice. . . . I choose to remember Sean for the light that he brought. No more darkness.”
The jury will consider Tsarnaev’s sentence during the penalty phase of the trial, set to begin April 21. (Massachusetts has not had the death penalty since 1984.)
Friday, April 10, 2015
This post was written by Nate Ela, of COWS
Way back In the 1980s, researchers at the American Legislative Exchange Council (ALEC) recognized divestment as a threat to business as usual (see yesterday's post). At the time, the issue was apartheid, and the target for divestment was South Africa. In a 1983 legislative update, ALEC argued that “although South Africa is the initial target, it is not likely to be the last… activists can be expected to broaden their divestment strategy.”
Three decades later, the target is ALEC itself. Activists are using divestment to starve ALEC of revenue, by scaring off its corporate members. A few years ago, in the wake of the Trayvon Martin shooting and the revelation that ALEC had supported Stand Your Ground laws, corporations started canceling their ALEC memberships. Activists realized that by exposing ALEC’s extreme positions, they could pressure corporations to cut ties with ALEC.
For the past year, the issue has been whether ALEC denies the science of climate change. ALEC’s critics assert it does. ALEC denies the claim. Last month, ALEC sought to take the offensive, by sending cease-and-desist letters to its critics, saying that if they didn’t stop what it claims is defamation, it would sue.
How did things reach this point?
To understand, we need to roll the tape back to last September. Google Chairman Eric Schmidt, in an appearance on NPR’s Diane Rehm show, was asked about ALEC:
REHM: And how did you get involved with them in the first place? And were you then disappointed in what you saw?
SCHMIDT: Well, the company has a very strong view that we should make decisions in politics based on facts. What a shock. And the facts of climate change are not in question anymore. Everyone understands climate change is occurring. And the people who oppose it are really hurting our children and our grandchildren and making the world a much worse place. And so we should not be aligned with such people. They're just literally lying.
This statement seemed to blindside ALEC. Within days, it sent top Google executives a letter, asserting that “ALEC recognizes that climate change is an important issue.” And by the following week, it had posted a new statement on climate change on its website. The statement seeks to make clear that ALEC believes climate change is a problem, but also makes clear that it doesn't think much can be done about it without harming the economy.
The statement didn’t stop the exodus. Within days, Facebook, Yahoo, and Yelp followed Google’s lead, and eBay followed suit in December. With Microsoft having jumped ship in July, by the end of 2014 ALEC was left without nearly all of its corporate sponsors from the technology sector.
Climate activists celebrated the success of their campaign to pressure tech firms. Brant Olsen of Forecast the Facts declared that "the departure of these firms from ALEC shows that denying the facts on climate change really doesn't have a place in the modern business world.” And another Forecast the Facts campaigner announced their next targets: “we’re looking to AT&T, Verizon, FedEx and UPS to follow suit and distance themselves from Alec’s extreme climate denial agenda. If they choose to stay with ALEC, we’ll be taking the issue to their customers, shareholders and employees.”
Meanwhile, energy firms have also been canceling their ALEC memberships: first ConocoPhillips, then Occidental Petroleum (Oxy), and most recently BP. The companies would not say why, but Oxy may have responded to pressure by activist shareholders. A proxy statement submitted at its 2014 annual shareholder meeting noted ALEC’s opposition to climate policies and suggested the tie to ALEC could pose a reputational and business risk to Oxy.
ALEC’s filings with the IRS from 2010 through 2013 suggest that the departure of corporate members may be cutting into the organization’s finances. (Here are the filings: 2010, 2011, 2012, 2013; 2009 numbers appear on the 2010 form.) Contributions, total revenue, and net assets all peaked in 2011, and fell off markedly in 2012 and 2013. It will be interesting to see whether ALEC was able to turn this around in 2014.
Last month, with corporate members continuing to flee, ALEC took the next step in its attempt to stanch the bleeding. In letters sent in early March to the League of Conservation Voters (LCV), Common Cause, and CREDO (available here), ALEC’s attorneys demanded that those organizations stop saying that ALEC denies climate change, and cease publishing allegedly false and misleading information.
ALEC’s move seems to have prompted Common Cause, CREDO, and a dozen allies to simply double down on their divestment campaign. On March 18, they registered alecclimatechangedenial.org, which now lays out the case against ALEC in one easy-to-digest website.
By late March, Common Cause and LCV had replied to ALEC’s demands (letters here; CREDO does not seem to have responded). Each organization declined to take down the webpages or retract the statements that ALEC asserted contained false information. LCV’s attorneys added that the ALEC letter “could be viewed as attempting to silence LCV under the threat of litigation.” They noted, with a touch of snark, that LCV was encouraged by ALEC’s support of model anti-SLAPP legislation, which aims to – in ALEC’s words – “encourage and safeguard public participation in civic society” and protect against abusive “lawsuits against those who express their views on matters of public concern.” As an example, LCV cited the anti-SLAPP law in the District of Columbia. Where, it so happens, ALEC is based.
This exchange of letters went public late last week, and has generated a wave of media attention. As the National Journal has observed, the letters tee things up for ALEC to bring a defamation lawsuit against its critics – though legal experts believe it would be very difficult for ALEC to prevail.
With ALEC’s critics refusing to back down, its corporate members running for the doors – T-Mobile left earlier this week – and its finances apparently in decline, it is unclear what better option it has left. If it backs down, it could be seen as conceding that its critics’ statements are justified. But if it sues, it would invite even more coverage of its controversial positions, and, even worse, potentially allow its opponents to use the discovery process to rifle through its internal files. And if ALEC were to let that happen, who knows what its critics might find?
Thursday, April 9, 2015
This post was written by Nate Ela, of COWS
Amid the recent RFRA controversy in Indiana, some journalists got to asking whether the American Legislative Exchange Council (ALEC) might’ve been behind the spread of “religious freedom” bills around the country. After all, over the years ALEC has promoted model bills on a wide range of topics.
But when the Christian Science Monitor looked into it, ALEC disavowed the RFRA bill entirely. As Bill Meierling, an ALEC spokesman, put it: “Limited government, free market and Federalism – if it doesn’t have to do with those three things we don’t do it.”
"Limited Government, Free Markets, Federalism" is ALEC's slogan, but it's a relatively recent proposition that the slogan actually defines the scope of its activities. ALEC has until just a few years ago promoted model bills whose connections to its slogan were tenuous, at best. Most notably, after the 2012 shooting of Trayvon Martin, the organization drew attention – and controversy – over having promoted a model “stand your ground” law. So much controversy, in fact, that major corporate donors began fleeing.
Which makes one wonder: has ALEC’s distance from RFRA been due to principle, or fear of further divestment? After all, a free market could be interpreted as one where people are free to refrain from providing services that conflict with their religious beliefs. Or, for that matter, as one where people have a right to be served without regard to their sexual orientation, skin color, or religious beliefs.
It seems more likely that, in the wake of the stand your ground incident, ALEC's leadership has become hyper-aware of the threat of divestment – in two respects. First, the threat divestment poses for states that enact discriminatory laws, and are then targeted by campaigns like #BoycottIndiana. But also for ALEC itself, should controversial laws prompt its corporate sponsors to pull the plug on contributions.
Which brings us to Throwback Thursday. ALEC actually saw this coming – a long time ago.
Back in the early 1980s, ALEC was concerned about South Africa. Its concern was not so much the apartheid regime that was perpetuating institutionalized racial domination and exploitation, but rather some activists' efforts to put an end to that regime. As People for the American Way has described, ALEC mobilized throughout the 1980s to oppose the campaign to divest from South Africa. As it noted in a 1983 policy paper,
The underlying problem is the strategy itself – targeting countries for economic sanctions because of actual or alleged human rights violations. Although South Africa is the initial target, it is not likely to be the last… If successful on the South African issue, these activists can be expected to broaden their disinvestment strategy.
In light of recent events, the analysis was prescient. After the Trayvon Martin shooting, there were calls to #BoycottFlorida. When discriminatory RFRA bills were passed in Arizona and enacted in Indiana, there were calls to boycott those states as well. And in the latter cases, those calls for divestment worked. They stopped the RFRA bill in Arizona, and led to it being amended in Indiana.
What's more, as ALEC foresaw, the divestment strategy has broadened. It no longer sets its sights only on governments, but also on corporations and their allies. And, having identified ALEC as a key corporate ally, divestment activists have even marched right up to its own doorstep.
More on that – and ALEC’s response to it – tomorrow.
Wednesday, April 8, 2015
Here at the Legislation Law Prof Blog, we aim to be the most interesting blog covering legislation and policy advocacy -- but of course we’re not the only blog out there. Here’s a roundup of some posts that have recently appeared elsewhere. (If you know of others we should include, let us know!)
Over at the NCSL Blog, Melissa Hansen covered a recent report from the National Association of State Medicaid Directors, which identified capacity as a most important limitation as states pass legislation seeking to reform their Medicaid systems. Meghan McCann reports that the New Mexico state legislature has passed SB 643, poising the state to be the 25th to allow online voter registration (three states have yet to implement their systems). And Jackson Brainerd surveys how states are looking to tax evaders to generate revenue.
At the Council on State Governments Knowledge Center blog, Sean Slone provides a roundup of how transportation funding measures are faring in the states. And Diana Di Marco summarizes recent polling by YouGov suggesting that most Americans favor universal registration, but oppose making voting mandatory.
At ALEC’s American Legislator blog, Amy Kjose Anderson celebrates West Virginia becoming the latest state to adopt an ALEC model bill that curbs asbestos lawsuit “abuse,” by making it harder for people made ill to receive compensation.
Last but not least, over at the homepage of the American Law Institute, they’re highlighting three new projects launched earlier this year. These include a new restatement on Children and the Law, a project on on police investigations, and a project on campus sexual assault.
Tuesday, April 7, 2015
In Douglas v. California, the Supreme Court held that those who are indigent have a right to public counsel for their first appeal as a matter of right. Justice Douglas opined the decision was necessary to stem "discrimination against the indigent. For there can be no equal justice where the kind of appeal a man enjoys 'depends on the amount of money he has.'" 372 U.S. 353, 355 (1963) (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956)).
But today, Maryland's legislature seems interested in stripping its poor citizens of their constitutional right to counsel. With only days remaining in the current legislative session, Maryland's legislature submitted bills to take away poor people's constitutional due process right to counsel at first appearance (SB 942 and HB 496). They would submit a referendum and let voters decide whether they approve or reject funding needed to exercise the constitutional guarantee.
The Baltimore Sun issued this condemnation of Maryland's last minute effort to rob the poor of their right to counsel here.
U of Maryland law professor Doug Colbert noted that these Maryland "legislators are targeting indigent defendants, who are disproportionately African- and Latino-American, and allowing voters to reject or approve their right to counsel." Professor Colbert asks the readers of the Legislation Law Prof Blog to contact him if you are aware of "any other example where a State legislative body sought to undo a state's constitutional ruling and deny a specific group's exercise of a constitutional right?" dcolbert @ law.umaryland.edu
In the meantime, we fervently hope that Maryland's legislature comes to its senses and protects the right to counsel regardless of one's ability to pay for it.
Monday, April 6, 2015
This post was written by Nate Ela, of COWS
Much has been written about the recent RFRA uproar in Indiana, but what lessons might we take from it? Here’s one: Governor Mike Pence is not a very good student of history. Here’s another: Big Business and Big Sport may have put the kibosh -- definitively -- on the spread of discriminatory state RFRA laws.
First the history. In February of 2014, Arizona’s state legislature passed SB 1062, a bill intended to amend and extend existing state law, which prevented any law from substantially burdening a person’s exercise of religion. SB 1062 would have expanded the definition of “person” to include corporations and associations, and would have allowed religious freedom to be used as a claim or defense in lawsuits, whether or not the government was a party.
Opposition to the bill was immediate and overwhelming. Social media lit up, and #BoycottAZ began trending. Civil rights organizations spoke out. But something new also happened. Big businesses spoke out as well. Opponents included Apple, American and Delta airlines, Marriot Hotels, Intel, PetSmart, and Yelp. And Big Business included Big Sport. Major League Baseball issued a statement. The Arizona Cardinals and the National Football League spoke out, suggesting that if the bill became law, the 2015 Super Bowl might be moved from Arizona to another location. Governor Jan Brewer bowed to the pressure, and vetoed the bill.
Thirteen months later, history more or less repeated itself – except with a different order of events.
On March 24, the Indiana state legislature passed SB 101. As in Arizona, the law extended religious freedom protection to businesses, and permitted it to be used as a claim or a defense in private lawsuits. Pence could have taken a week to sign or veto the bill. But instead of waiting to see if opposition developed, Pence signed the bill on March 26.
The same day, opposition mobilized. #BoycottIndiana spiked. From just 56 tweets on March 24 and 2,783 on the 25th, it jumped to nearly 60,000 tweets per day for the next three days. Civil rights organizations spoke out, and the largest newspaper in Indiana demanded on its front page that Pence "FIX THIS NOW."
And, as in Arizona, Big Business and Big Sport spoke out. Salesforce said it would not send employees to Indiana. Angie’s List canceled a multimillion dollar expansion. Apple CEO Tim Cook wrote an op-ed describing the spread of state RFRA laws as “very dangerous.” And the head of the NCAA, which was slated to host the Final Four in Indianapolis, declared that the situation “absolutely, positively needs to get fixed.” After a weekend spent dragging his feet, Pence hopped to it, and last week ordered the legislature to pass SB 50, a bill barring discrimination, which he signed on Thursday.
For a governor whose official bio claims credit for helping Indiana “earn a global reputation as a great place to do business,” and touts his own small business experience, this episode was an enormous misstep. Perhaps Spence was taken in by the meme of the religious bakers and florists, and led to believe that there was actually a large and well-organized community of religious small business owners who would have his back. Or perhaps he simply failed to take any lessons from what had happened in Arizona. In any event, he crossed the desires of Big Business, and paid the price.
A couple states to the southwest, Arkansas governor Asa Hutchinson, faced with a similar situation, understood what he needed to do. With the Wal-Mart CEO telling him the RFRA bill as passed by the legislature “threatens to undermine the spirit of inclusion,” Hutchison sent the bill back and ordered up a version that parallels the federal law and prohibits discrimination.
According to NCSL, 18 bills related to religious freedom are still pending in ten states this year. Some, as in Oklahoma, seek to amend existing RFRA laws; others, as in North Carolina, seek to add RFRA or something similar to the state statutes. In several states, proposed bills have already failed.
In the wake of the experiences in Arizona, Indiana, and Arkansas, it is hard to imagine any of these states enacting a RFRA law that allows discrimination. At least in this case, the dominance of Big Business over the legislative process might be something for progressives to celebrate.
Thursday, April 2, 2015
Combatting the Criminalization of Homelessness: Seattle U's Homeless Rights Advocacy Project Joins the Good Fight
The Legislation Law Prof Blog often features policy advocacy undertaken by law students around the nation. Today, I'm excited to spotlight the work of my own students in Seattle University's new Homeless Rights Advocacy Project. The students are releasing four cutting-edge policy briefs on the criminalization of homelessness in May; this Real Change article gives an excellent preview. If you are interested in undertaking similar advocacy work at your institution, please feel free to contact me at firstname.lastname@example.org.
Seattle University students build a resource to stop laws that criminalize homelessness
by Rianna Hidalgo | April 1st, 2015
A team from Seattle University has analyzed anti-homelessness ordinances. They are (back row from left) Josh Howard, Javier Ortiz and Scott MacDonald, (front row) Kaya Lurie, Prof. Sara Rankin, Justin Olson and Matthew Dick. Photo courtesy of Seattle University
Falling asleep. Sitting down. Standing still.
“There are some activities that are so fundamental to human existence that it defies common sense that they might be treated as crimes,” begins a 2014 report from the National Law Center on Poverty and Homelessness (NLCPH).
Yet the municipal codes of cities across the country prohibit sitting and lying on sidewalks, sleeping in cars, camping in public or having “offensive body odor,” as a recent Burien ordinance initially proposed.
A group of students at the Seattle University (SU) School of Law have undertaken the first comprehensive examination of Washington laws that they say criminalize homelessness and will release four policy briefs analyzing their results in May.
The leading professor on the project, Sara Rankin, minced few words about the purpose.
“Our goal is to support the repeal of these laws,” she said.
The briefs, she said, will offer concrete, empirical data that can be used as a “potent tool” for advocates aiming to overturn or prevent such laws. The research is part of the law school’s Homeless Rights Advocacy Project, created last fall at the Fred T. Korematsu Center for Law and Equality.
The argument behind the briefs is that criminalizing necessary, life-sustaining activities — such as sitting — violates civil and constitutional law and disproportionately affects those experiencing homelessness. The laws are often passed in the name of public safety, order and health.
“When you have no reasonable alternative but to do these things in public because you are without housing,” Rankin said, “these laws criminalize people for just living.”
Students spent last semester gathering vast amounts of data, issuing public records requests, conducting surveys and crunching numbers. Now, they are in the process of vetting their findings with experts in the field.
One brief, co-authored by student Justin Olson, surveys 72 Washington municipalities and charts every found nuisance and disorder law, looking at what behaviors are regulated and how they are enforced. The results are consistent with NLCPH research that shows a spike in these laws since 2011.
“From densely populated urban cities to scattered rural townships, city councils pass these laws en masse, often drafting them in a way that raises serious concerns about constitutional rights,” Olson said in a statement.
Rankin said she believes the overall increase in these laws is connected to negative public perception of homelessness and a visceral reaction to visible poverty.
“Part of the reason I’m so fueled to do this type of work is that in my own view, the plight of people experiencing homelessness is one of the least illuminated and least understood forms of civil rights violations in contemporary society,” she said. “It makes people very uncomfortable to be reminded of human desperation. We resent being confronted with it.”
More than half the surveyed cities criminalize camping and some form of panhandling, while nearly three-quarters of them criminalize sitting and lying on sidewalks. In Seattle, it is illegal to sit or lie down on a public sidewalk between 7 a.m. and 9 p.m. in areas such as downtown.
It’s a law, Rankin said, that she doesn’t see being enforced against SU students who sit on the sidewalk by the Starbucks across the street.
“That law isn’t meant for them,” she said.
Olson said one of the problems he sees in Seattle is a surge in the amount of jail time resulting from the Pedestrian Interference code, which prevents “obstruction of pedestrian or vehicular traffic” and “aggressive begging.”
Another problem is the downward spiral that occurs when a small civil infraction with a monetary penalty leads to jail time: Under the city’s municipal code, failure to respond to a civil citation within 15 days results in a misdemeanor. For someone experiencing homelessness, it can be difficult to respond and impossible to pay.
A second brief compares contemporary ordinances to historic discriminatory laws such as Jim Crow, Sundown Town and Washington’s 1875 anti-vagrancy act banning, “all persons wandering about and having no visible calling” and “habitual drunkards,” among others.
Though the language has shifted from criminalizing people to criminalizing behavior, students argue that the end effect is the same: to remove “undesirables” from public space.
A third brief delves into the intersection between marginalized groups, such as racial minorities and LGBTQ individuals, and homeless populations, while a fourth calculates the minimum cost of enforcing the ordinances in Spokane and Seattle, concluding that alternatives, even providing housing, would be cheaper.
The dream is that the impact of these briefs, once released, will stretch beyond state lines.
“We think these briefs will make an indelible mark on homeless rights advocacy,” Rankin said.
Olson said it has been exciting to see how many people across the country have taken notice of the students’ research and are pressing for the results. To him, it’s a sign that people recognize the problem and want the tools to change it.
Rankin said she thinks of the students as “poverty warriors,” because they feel compelled to do the work for reasons far beyond academic credit: “They are doing it because they are persuaded by the results of their own research.”
Friday, March 27, 2015
A bipartisan bill, H.R. 2, Medicare Access and CHIP Reauthorization ACT, would repeal the Sustainable Growth Rate (SGR) formula, which sets a cap on physician spending, and would revamp payment of physicians under Medicare. On March 26, 2015 the U.S. House overwhelmingly (392-37) voted in favor of the bill, also known as SGR replacement bill. The Senate will vote on the bill after recess.
The legislation was introduced by Speaker John Boehner (R, Ohio) and Minority Leader, Nancy Pelosi (D, California). It would repeal the SGR Medicare formula that imposes the imminent threat of cuts to Medicare providers and would eliminate the need for Congress to set payment rates for Medicare physicians annually – a process known as “doc fix”. Since 2003, Congress has overridden the cuts imposed by SGR on 17 occasions, and the most recent override ends on March 31, 2015. If Congress does not take action, Medicare payments to physicians will be cut by 21% on April 1, 2015.
The H.R. Medicare Access and CHIP Reauthorization ACT will
- Repeal the Sustainable Growth Rate Formula;
- Ensure a 5-year period of annual increases of 0.5% in payments to physicians;
- Set up a two-tier payment system that incentivizes a shift to value-based payment systems that reward physicians who meet performance thresholds and make care-coordination efforts for patients with chronic conditions;
- Incentivize transition to alternative payment models (APMs) by requiring that physicians receive at least 25% of their revenue through an APM in 2018-2019, with an increased threshold overtime; and
- Extend funding for the Children’s Health Insurance Program (CHIP) and community health centers for another two years.
These changes are estimated to cost approximately $200 billion, and $70 billion of that cost would be offset by two major program changes: (1) higher premiums for higher-income Medicare beneficiaries and (2) reduced governmental spending on supplemental insurance plans, increasing out-of-pocket costs for Medigap recipients.
Because the bill creates five years of payment stability and improves on the existing fee-for-service system, it has overwhelming and rare bipartisan support. President Obama is in support of this bill and commented, “This is how Congress is supposed to work.” He is expected to sign the agreement to repeal the SGR formula.
However, both Democrats and Republicans have their reservations about the bill. Democrats are concerned about premium increases for higher-income Medicare recipients, while Republicans are worried about budgeting for the remaining $130 billion.
Thursday, March 26, 2015
Since the 1900s, Congressional Republicans have proposed block grant style funding for Medicaid. A block grant is a fixed amount of money allocated from the federal government to states in order to support social assistance programs. On Tuesday, March 17, 2015 Republican Tom Price, chairman of the House Budget Committee, proposed another block grant budget. If approved, the proposed budget will cut assistance to public programs, while simultaneously increasing the defense budget in an effort to balance federal spending over a decade. By turning public aid programs over to individual states by 2021, he hopes that restructuring these programs will force states to spend more efficiently.
The proposed budget design is modeled on the 1990s welfare reform, which created block grants for the Temporary Assistance for Needy Families (TANF) program. As a result, in the 1990s TANF spending remained stagnant while more Americans, who were previously eligible for benefits, fell deeper into poverty. Similarly, the current budget proposal will cut spending to SNAP and Medicaid by following a parallel block grant model. Last year, as an expandable program, SNAP spending increased to $78 billion dollars as more Americans became eligible; however, the proposed budget would prevent another surge in SNAP spending by determining a fixed amount for the budget, potentially denying previously eligible low-income Americans from receiving benefits. The proposed budget includes cutting SNAP funding by about $1 trillion.
In his effort to balance the budget, the Republican house proposes cutting $5.5 trillion over ten years to public programs that benefit vulnerable Americans. These cuts involve:
- Repealing the Affordable Care Act (ACA)
- Reforming the Tax Code
- Cutting funding to Medicare and Medicaid
- Eliminating Medicaid expansion
The result of these cuts include:
- Adults living between 100% and 138% of the Federal Poverty Guideline will be no longer be eligible for Medicaid;
- About 37 million Americans could lose or be denied health insurance and other critical benefits.
Republicans predict that these cuts will save hundreds of billions of dollars within the decade. By cutting funding to critical benefits that affect the health of many vulnerable Americans, $2 trillion will be saved by repealing the ACA and $913 billion by turning Medicaid into a block grant program. There is also a $150 billion estimated savings by transitioning Medicare to a voucher program for anyone 56 years old or younger, after 2024. Despite medical costs rising and the general population aging, the proposed block grant funding would allocate a fixed amount of funding, which would only increase to account for inflation or a growing population.
Monday, March 23, 2015
Amidst the passage of increasingly restrictive voter ID laws, Oregon’s current governor, Kate Brown, recently signed a groundbreaking piece of voting legislation for the state. House Bill 2177 was passed on Monday, and is the first of its kind in the nation. This bill automatically registers any eligible Oregon resident who conducts business with the Driver and Motor Vehicle Services Division to vote. Under the legislation, any Oregonian who is eligible, but not registered to vote and has interacted with the Driver and Motor Vehicle Services Division since 2013 will automatically be registered to vote and receive a ballot in the mail at least 20 days before any Election Day.
As of now, Oregon’s current voting rolls have approximately 2.2 million people registered, and the state predicts another 300,000 voters will be immediately added thanks to HB 2177. Ultimately, over 800,000 new voters can now be registered as a result of this bill. In order to implement the bill, Oregon’s DMV will communicate voter information (such as residential information, age, citizenship status, and signature) to the secretary of state’s office, which will then update the voter registration rolls.
This measure changes the entire voting landscape in Oregon by shifting the onus of responsibility for voter registration from individual voters to the state of Oregon--replacing the opt-in system with an opt-out system. Residents who are registered to vote under the bill will be notified via mail and those who would not like to remain on the voting rolls have three weeks to notify the state that they wish to opt out. All voters will automatically be registered as unaffiliated with a political party.
This measure was a polemic one for state legislators and votes fell largely along party lines. Democrats, who were mainly in favor of HB 2177, hailed the measure as an important step to support voting rights, especially for young and low-income citizens. However, no Republican, in either the House or the Senate, voted for the bill, and many voiced concern over potential voter fraud issues, the financial burden of executing the law, and the risk of jeopardizing private information. However, as Jeff Mapes points out in an article in The Oregonian, proof of citizenship status is already required to procure a driver’s license and the bill has several provisions in place to protect the information of vulnerable groups, such as victims of domestic violence, to ensure their information is kept private.
The “Motor Voter” Bill is not the first time Oregon has led the nation in innovative voting legislation: In 1998, Ballot Measure 60 was passed, which transitioned the state to an all-mail voting system. Oregon currently has one of the highest voter-registration rates in the nation (in the 2014 General Election, 73% of eligible voters were registered and 70% cast a ballot) and the passage of HB 2177 solidifies Oregon’s position at the forefront of progressive voting policy.
Saturday, March 21, 2015
Last week, Utah’s Senate cleared the way for using the firing squad when lethal-injection drugs are unavailable. This week, death penalty opponents urged Governor Gary Herbert to veto the bill. Herbert says he’s “leaning toward” signing. For more on methods of execution, including hanging and the gas chamber, see here.
In other news, Nebraska’s judiciary committee, in a unanimous 8-0 vote, cleared the way for consideration of death penalty repeal by the full legislature. Significantly, Nebraska’s repeal bill seeks to do what no other recent repeal has done—end the death penalty for those currently on death row as well as for future crimes. (In New Mexico and Connecticut, inmates on death row prior to repeal remain there post-repeal; in New Jersey, Illinois, and Maryland, governors commuted the sentences of those on death row.) The Nebraska bill states that, “In any criminal proceeding in which the death penalty has been imposed but not carried out prior to the effective date of this act, such penalty shall be changed to life imprisonment without possibility of parole.”
Friday, March 13, 2015
This post was written by Nate Ela, of COWS
Half of the states in the U.S. now have “right to work” laws on the books. As earlier posts this week have discussed, such laws do not create anything resembling a real right to work. To the contrary, they create a legal privilege to have job that is covered by a collective bargaining agreement, without paying dues or joining a union.
Legalizing free-riding creates serious problems for labor unions. For decades, their membership and fundraising model has relied on dues collected from members at workplaces with collective bargaining agreements. When workers can free-ride on such agreements, both membership and dues drop off. One study found that within a decade after the passage of “right to work” laws, states generally see a 5% drop in the number of union members. This is a major hit, even in the context of a gradual decades-long decline in union density in every state (NPR’s Planet Money created a map that illustrates the decline over the past 50 years.)
The secular decline and deliberate legislative dismantling of the old model has prompted attempts to imagine what new models for labor unions might look like, and how legislative changes might support them. In a 2006 article in The Nation, Richard Freeman and Joel Rogers proposed a model of “open source unionism,” in which unions would use digital tools to represent workers individually, even at workplaces not covered by collective bargaining agreements. The table below, from their book What Workers Want, summarizes the differences.
In a useful book that came out last year on innovative public policies to support low-wage workers, Freeman reports that a wide variety of “labor organizations,” many along the lines of open-source unionism, have emerged to provide services to workers in a time when unions can no longer do what they used to.
But even as new organizations emerge to represent workers in new ways, unions themselves must figure out new strategies for representing workers. A central element of a model along the lines of open-source unionism would be allowing unions to represent workers as individual dues-paying members, rather than as workers at a site covered by a collective bargaining agreement.
In “Restoring Equity in Right to Work Law,” Professors Catharine Fisk and Benjamin Sachs note how such individual representation would be problematic under current federal and state laws. Federal labor law, designed for the traditional model of unionism, requires unions to equally represent all workers in workplaces covered by collective bargaining agreements. In “right to work” states, workers in such workplaces can now decline to pay dues and join the union. Since unions are still required to represent all workers equally, they end up representing many nonpaying nonmembers. One of the possible solutions that Fisk and Sachs propose would be to change federal law so unions can represent only members who pay dues.
This and other ideas for how to reimagine labor law came as part of a thought-provoking symposium issue of the UC Irvine Law Review last May. If you’re not interested in reading all of the contributions, a recent Washington Post Wonkblog post summarized many of their proposals, which range from giving unions a role in immigration reform legislation, to making union elections automatic, to better protecting workers’ freedom of association.
At the moment, the form or forms that workplace democracy will take in the future remains uncertain. But the spread of right to work laws and other anti-union legislation is clearly provoking worker advocates to reassess and reimagine their strategies. Even as some commentators predict that a national right to work law could come within the next decade, the White House is planning a summit on labor for this fall. We can expect to see increasing interest in how labor laws might be changed to either defend the old model of unionism, or, perhaps more realistically, help shepherd a new one into being.