Legislation Law Prof Blog

Michigan Governer Signs Religious Freedom Adoption Bill

On Thursday June 11, Michigan Governor Rick Snyder (R) signed legislation that would allow private adoption agencies to refuse adoption services to individuals based on religious grounds.

Critics of the bill are concerned that the legislation would permit faith-based and religiously affiliated foster and adoption agencies to discriminate against same-sex couples, religious minorities, and single parents, while still receiving taxpayer money.

Democrats voiced their opposition to the bill before it was passed by the state Senate on Wednesday, emphasizing that the bill would allow adoption agencies to refuse placement of children with same-sex couples. Democrat lawmakers proposed several amendments to the bill that were rejected, including one that would have excluded agencies that receive more than $500,000 in state funding from being protected by the bill.

In the 2014-2015 budget year, $19.9 million state and federal funds went toward supporting adoption agencies, and nearly $10 million of the total went to faith-based agencies that will now be protected under the bill.

According to ACLU, Michigan has the fifth largest population of children waiting for adoption. The law will make it even more difficult for more than 13,000 children in the state’s adoption and foster care system to be placed into homes.

For more information, please see the these articles in the New York Times and Huffington Post

The Radical Reordering of Death Penalty Repeal: Nebraska Goes Retro

On May 29, just two days after Nebraska became the nineteenth state to abolish the death penalty, Nebraska Governor Pete Ricketts announced that he still plans to execute Nebraska’s ten death row inmates.  Death penalty foes say he can’t do this; the Governor says he can. 

While much has been made of Nebraska’s becoming the first conservative state to repeal the death penalty in over forty years, Nebraska’s repeal is remarkable for another reason, as the battle brewing in Nebraska suggests.  For the first time in nearly fifty years, a state legislature repealed its death penalty not just for future crimes but also retroactively, that is, for those currently on death row.  Nebraska’s repeal explicitly prohibits the very action that Governor Ricketts plans to take—the execution of those on Nebraska’s death row.

Over the past eight years, five other states have repealed the death penalty.  None of them did so retroactively.  In three of those states, New Jersey, Illinois, and Maryland, it took a governor’s commutation order to clear death row.  In New Mexico and Connecticut, death row prisoners were not so lucky; a total of thirteen men remain on death row in those states after repeal.  Pending legislation in Colorado, Delaware, Kansas, New Hampshire, and Washington is also not retroactive.  When these states inevitably repeal the death penalty, they will join an ever-growing list of states that have repealed the death penalty while retaining death row intact.  Abolition for most, but not all—not for the forty people on death row in these states.

Many will say this is at it should be.  Some family members of murder victims, such as the parents of slain University of Delaware student, Lindsey Bonistall, argue that retroactive repeal unsettles their expectations of retribution.  “[D]on't let the judicial process, our tragedy, trauma and pain,” they wrote to legislators, “be in vain.”

Some lawyers—including Nebraska’s attorney general—argue that retroactive repeal unconstitutionally infringes the courts’ power to render “final” judgments and the executive’s power to commute sentences.  A slew of old, poorly-reasoned state court cases certainly support this cramped view of the separation of powers.

And some advocates argue that, by repealing the death penalty going forward but not retroactively, the death penalty abolition movement merely parallels the movement to end another infamous American institution:  slavery.  In the late eighteenth century, the Pennsylvania Abolition Society, the first organization dedicated to securing slavery’s end, supported laws that would end slavery going forward but not retroactively.  “We dare not flatter ourselves with anything more than a very gradual work [of national emancipation],” the Society said in 1790, for “long habits die hard and strong interests are not overcome in an instant.”

All of these arguments against retroactivity have merit, but they should not win the day.

Family members of victims must understand that there is no record of a death row prisoner ever being executed after repeal of the death penalty.  Ever.  Failure to repeal the death penalty retroactively is a farce; history shows that those remaining on death row will probably never be executed, so why not do away with death row completely and eliminate the trauma that families will be forced to endure as they sit through literally endless appeals?

Lawyers must understand that the failure to repeal the death penalty retroactively is the height of arbitrariness.  It is nonsensical to say that a person who murders the day before repeal can be sentenced to death, while a person who just so happens to commit an identical murder the day after repeal cannot be sentenced to death.  There simply is no difference between the two murderers.  If the death penalty is too expensive, too inhumane, too discriminatory, too prone to human error, too out of step with international norms, or too unfair to victims’ families today, then it was surely all of those same things yesterday.  Recent statements by the Supreme Court and lower courts strongly support legislators’ elimination of arbitrary disparities like these.

And advocates must understand that, while the movement to abolish slavery began as a gradual enterprise, it yielded to a more radical movement demanding a complete end to slavery.  Nebraska’s retroactive repeal of the death penalty on Wednesday marks the beginning of a more radical movement to abolish the death penalty.

The next decade will undoubtedly see more states boarding the abolition train—states like California, with over 700 people on death row.  Hopefully, they, like Nebraska, will take their death rows with them.  Abolition for all.

In Redistricting, Who Counts?

When a state legislature takes census data and carves up new voting districts, how should it count who is in those districts? Should it count all residents, or only eligible voters? This is the question presented in Evenwel v. Abbott, a case that the Supreme Court recently agreed to take up in its next term. Evenwel is being billed as the biggest redistricting case in 50 years, since the Warren Court held  that voting districts with large differences in total population are unconstitutional. The case has major stakes for who holds power at the federal, state, and local levels. 

Evenwel was filed in 2014, as a challenge to the state senate district plan enacted in 2013 by the Texas state legislature and signed by Governor Rick Perry. The legislature used the results of the 2010 census to create senate districts that had roughly the same number of residents. 

The plaintiffs in Evenwel claim that this plan violated the Fourteen Amendment, by denying their rights to have votes that are equal in weight to voters in other districts. The claim is that the votes of eligible voters in districts that have a large proportion of non-citizen residents have greater weight than those of voters in districts that have a large proportion of eligible voters. 

The Evenwel plaintiffs are Texas voters selected by the Project on Fair Representation, a one-man conservative advocacy group created by Edward Blum, a former investment banker and current fellow at the American Enterprise Institute. (New York magazine has a good profile describing how Blum has engineered a number of the Roberts Court’s recent blockbuster cases on the role of race in voting and college admissions.)

A ruling that electoral districts can or must have equal numbers of eligible voters would have huge implications for the balance of power at the federal, state, and local levels. 

The impact on state-level politics is perhaps most obvious. In the case, the Court will determine how state legislatures may draw state legislative districts. (At the NCSL Blog, Lisa Soronen notes that Evenwel follows on another case this term which questions the role of state legislatures in redistricting. Arizona State Legislature v. Arizona Independent Redistricting Commission presents the question of whether a state legislature can be completely cut out of the redistricting process.)

But allowing or mandating state legislatures to draw districts in a new way would be likely to affect the balance of political power at the federal level. Nate Cohn did some calculations and writes in the New York Times that such a system would put control of the House of Representatives even farther out of reach of Democrats. Nathaniel Persily of Stanford Law School observes that it would also require a new kind of census, one that counts who is and isn’t a citizen.

Finally, the case holds the potential to alter the balance of power between cities and suburbs, particularly in states like Texas with large non-voting immigrant populations. University of Texas law professor Joseph Fishkin argued in a  Yale Law Journal article that a shift to districts based on equal numbers of eligible voters “would shift power markedly at every level, away from cities and neighborhoods with many immigrants and many children and toward the older, whiter, more exclusively native-born areas in which a higher proportion of the total population consists of eligible voters.”

In short, in deciding Evenwel, the Roberts Court will have the opportunity to rework how our democratic system functions -- and who it tends to empower.

Nebraska Poised to Become 19th State to Abolish Death Penalty

On the same day that jurors in Massachusetts returned a verdict in favor of the federal death penalty for Tsarnaev, Nebraska lawmakers voted 30-16 in favor of advancing a bill to repeal their state’s death penalty.  The bill faces one more vote, which is largely considered a formality.  Assuming the bill keeps its veto-proof majority (Governor Pete Ricketts has promised a veto), Nebraska will become the 19^th state to repeal the death penalty—the 6^th state to do so in just 8 years.

Nebraska’s anticipated repeal is part of a growing movement among conservatives who question the alignment of capital punishment with conservative principles and values.  According to Conservatives Concerned About the Death Penalty (CCADP):

• Some      of us believe that small government and the death penalty don’t go      together, especially when we compare the high costs of capital punishment      to life without possibility of release.
• Some      of us don’t trust the state to get it right. We already know that some      innocent people have been sentenced to death, and for others it may      already be too late.
• Some      of us are disturbed by the roller coaster for family members of murder      victims, or wonder why we’re investing so much in a system that doesn’t      keep us any safer than the alternatives.
• Some      of us believe that the death penalty contradicts our values about      protecting life.

As Richard Viguerie, one of CCADP’s founding members has colorfully remarked, “this trend is not limited to bleeding-heart liberals and crime coddlers.”

A look at the (about-to-be 31) states with the death penalty reveals how important these conservative values will be to death penalty abolition in years to come.  Bleeding-heart liberals and conservatives-- unite!

Two new articles on factors that influence the enactment of model laws

This post was written by Nate Ela, of COWS

To wrap up this week’s posts on the model law as a mode of governance, let’s look at a couple recent articles examining factors that could influence whether state legislators decide to enact a model law. 

Sociologists Stephanie Kent of Cleveland State University and Jason Carmichael of McGill University looked at some of these factors in an article published in the latest volume of Social Science Research. Professors Kent and Carmichael examined where five model laws – all intended to reduce wrongful convictions, and all promoted by the Innocence Project – were enacted. Not surprisingly, they found that that states with a Republican controlled legislature or more Republican voters were less likely to pass these laws, while the presence of advocacy organizations that are part of what they call the ‘innocence movement’ make legislative change more likely. Rather disturbingly, they also found that the frequency of discovered wrongful convictions in a state does not increase the likelihood of adopting model laws aimed at preventing wrongful convictions.

One thing a well-organized movement can do to promote the adoption of model laws is to generate empirical studies that justify the policies embodied in model legislation. This is one of the conclusions of a forthcoming article by Dee Pridgen in the NYU Review of Law and Social Change. Pridgen, a professor at the University of Wyoming College of Law, analyzes how model legislation promoted by ALEC has sought to roll back private causes of action under state consumer protection acts. Empirical reports produced by the Searle Civil Justice Institute at Northwestern University School of Law have provided what Pridgen calls a “fig leaf” for the move to abolish consumer protections. In one study, the Searle Institute created a “shadow FTC” comprised of five unnamed people said to have had experience at the FTC Bureau of Consumer Protection. This panel then reviewed a sample of consumer protection decisions from state appeals courts, and concluded that 78% of the state UDAP claims would not be considered unfair or deceptive under FTC policy statements. This sort of study, Pridgen asserts, says little about the actual state of play of state consumer protection litigation, but nevertheless is used to justify passing ALEC’s model law.

Seattle U School of Law Briefs on the Criminalization of Homelessness Released Today

In February, this Blog posted a comprehensive report from the Berkeley Policy Advocacy Clinic on the problem of the criminalization of homelessness in California.  The Berkeley team, the Western Regional Advocacy Project, and Washington state community partners offered incredible support to me and my students as we tackled the problem in Washington. 

Today, the SU School of Law's Homeless Rights Advocacy Project released four comprehensive policy briefs that we hope will impact local, statewide, and national conversations about the challenges posted by these laws.  Here's the press release- links to the reports are below. 

***

May 6, 2015

FOR IMMEDIATE RELEASE

Contact: Katherine Hedland Hansen, [email protected]; 206-793-3487

 

Seattle University School of Law’s Homeless Rights Advocacy Project releases groundbreaking briefs on the “criminalization of homelessness” in Washington State

The first statewide analysis of laws criminalizing homelessness finds those laws are expensive, ineffective, and disproportionately impact already marginalized individuals. Those are among the key findings of a series of in-depth policy briefs released today by the Homeless Rights Advocacy Project at Seattle University School of Law that examine the scope and extent of the problem of criminalization in the State of Washington.  These briefs are the most extensive of their kind in the nation.

Among the findings:

• Washington cities are increasingly criminalizing homelessness. Since 2000, communities have enacted laws that create over 288 new ways to punish visibly poor people for surviving in public space.
• Millions of dollars could be saved if cities would redirect funds used for enforcement of these laws toward affordable housing.
• Homelessness and poverty disproportionately impact people of color, women, LGBTQ youth, individuals with mental illness, and veterans.
• The greater the income gap between the rich and the poor, the higher the rates of enforcement of these laws.
• Modern anti-homeless ordinances share the same form, phrasing, and function as historical discrimination laws, such as Jim Crow.

“The common thread is prejudice,” said Professor Sara Rankin, faculty director of the Homeless Rights Advocacy Project. “One of the underlying premises of our research is that visible poverty makes people uncomfortable.  Regrettably, we often use the law to purge visibly poor people from public space.  As long as we pretend that homelessness is a problem that should be addressed through the criminal justice system, we are not really addressing the root problems of homelessness and poverty.”

Rankin’s students spent months collecting data, researching, and writing their briefs. They presented their works-in-progress and incorporated feedback from experts, including prosecutors, defense attorneys, police, service providers, and people currently experiencing homelessness.

Researchers analyzed data from 72 cities and completed in-depth case studies of seven cities: Seattle, Burien, Bellingham, Spokane, Auburn, Pasco, and Vancouver.  They also looked at other states that have adopted the “Housing First” movement that prioritizes providing shelter over enforcement.

“At what cost are we criminalizing homelessness?” asked one student co-author, Joshua Howard. “Criminalization is expensive and ineffective, and non-punitive options are proven to save money.”

One brief estimates the City of Seattle will spend a minimum of $2.3 million in the next five years enforcing just 16 percent of the city’s criminalization ordinances. Spokane will spend a minimum of $1.3 million enforcing 75 percent of the city’s criminalization ordinances. Investing this same money over five years on affordable housing could house approximately 55 people experiencing homelessness per year, saving taxpayers over $2 million annually and over $11 million total over the five years, according to the briefs.

“This research humanizes the problems and shows the ways in which the institutional response to homelessness has failed,” said Scott MacDonald, one of the student co-authors.

National experts praise the research.

“These reports will leave an indelible mark on constitutional, civil, and human rights discourse about how society and the law can either contribute to the problems of poverty and homelessness, or how society and the law can reverse course and contribute to more meaningful and just outcomes for all people, regardless of their housing or economic status,” said Michael Stoops, director of Community Organizing at the National Coalition for the Homeless.

“These carefully researched reports present the most complete picture of the criminalization of homeless people in any state in the country,” said Professor Jeff Selbin, a poverty law expert at UC Berkeley School of Law. “They demonstrate how municipal laws targeting the visibly poor in Washington are increasingly unjust, inhumane, and costly. State lawmakers in Washington and elsewhere should take action to end these shameful practices.”

And Tristia Bauman, senior attorney at the National Law Center on Homelessness & Poverty, said,  “As more communities across the nation criminalize the life-sustaining activities of homeless people, comprehensive research on the impact of these ineffective, expensive, and often illegal policies is critical to combating them,” she said. “These reports represent a model that should be replicated across the country by advocates working to end the criminalization of homelessness."

Read the briefs:

 

Washington's War on the Visibly Poor: A Survey of Criminalizing Ordinances & Their Enforcement 

At What Cost: The Minimum Cost of Criminalizing Homelessness in Seattle and Spokane

Discrimination at the Margins: The Intersectionality of Homelessness And Other Marginalized Groups

The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws 

 

New scholarship on model laws as a means of (conservative) legal innovation

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. 

Many recent media reports and scholarly articles have focused on how conservative activists have used model laws to advance their own favored causes. But progressives have used model legislation to promote their own causes. Friday’s post will highlight an article analyzing the success of a progressive effort to use model laws to prevent wrongful convictions.

Charting the Wave of New LGBT Protections at Work

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.

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.)

For more, see here and here.

Facing divestment, ALEC threatens to sue critics who say it denies climate change

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.

 

ALEC finances, 2009-2013

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?

#TBT: When ALEC First Recognized the Threat Posed by Divestment

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.

Roundup of Legislation Blogs

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.

 

Robbing the Poor of the Right to Counsel

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.

Has Big Business (and Big Sport) Put the Kibosh on Discriminatory RFRA Laws?

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 25^th, 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. 

Bipartisan Agreement to Make Massive Changes to Medicare

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.

For more information, see these articles in the Washington Post and New York Times.

Death Penalty Repeal in Nebraska? Firing Squad in Utah? Could Happen…

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.”

On Right to Work, Part 3: Imagining new models, and policies, for unionism

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.

Freeman and Rogers, What Workers Want (2006), p. 197

 

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.

On Right to Work, Part 2: Envisioning a *real* right to work, from a French revolutionary to Frank Underwood, via FDR.

This post was written by Nate Ela, of COWS

Yesterday’s post sought to understand why Scott Walker might have rebranded “right to work” as “freedom to work.” Among other things, his move makes one wonder if conservatives might be concerned that some Americans could (mis)understand “right to work” to actually mean what it says. What if people believed they should have a real right to work?

It isn’t entirely inconceivable. The notion that people should have a right to work has a long history, and has emerged from time to time in policy proposals. Once in a long while, politicians have even sought to act on the proposals. Today, the idea remains very much alive, and could even have a natural constituency.

One early proposal for a right to work came in France, in 1839. Louis Blanc, a Parisian journalist, wrote a series of articles that would be collected and published in 1840 as The Organization of Labor (l’Organisation du Travail). Blanc was a critic of social conditions, and believed that the market would never provide jobs sufficient to meet the needs of the poor. His vision? As he wrote, “ASSURE the poor man work.”

Louis Blanc

 

Blanc proposed to do this by having the state set up a system of “social workshops” in various branches of industry. The government would begin by regulating these closely, including the scale of employment; but after a few years, Blanc believed, the workshops would become self-sustaining voluntary associations.

In the wake of the Revolution of 1848, Blanc became a member of the provisional government. This provided a chance to realize his vision. The government published a decree announcing it would bind itself “to guarantee the existence of the workman by labor,” and to “guarantee labor to all citizens.”

The workshop system began to be set up, and workers were recruited to help build public infrastructure. Yet ultimately the system neither received the full support of the government, nor delivered on the promises of guaranteeing work to all citizens. Blanc fell out of favor both with the poor and the National Assembly, and was forced into exile. 

Although his experiment had failed, Blanc’s ideas lived on, and spread. By 1911, an English version of his proposal had been published in the United States.

During the Great Depression, President Franklin Delano Roosevelt began to develop the ideas that would lead him to suggest Americans have a right to work. In his 1944 state of the union address, he argued that during the course of the Depression and the Second World War, Americans “have accepted, so to speak, a second Bill of Rights.”  He put two rights at the top of the list:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
• The right to earn enough to provide adequate food and clothing and recreation 

 

Roosevelt died the following year; his bill of economic and social rights was never adopted as part of our written constitution. The work relief programs of the New Deal were neither imagined as, nor converted into, ongoing social workshops. And although the Humphrey-Hawkins Full Employment Act authorized the creation of a “reservoir of public employment” as a response to high unemployment during the 1970s, such a reservoir has never been established. 

Nevertheless, FDR’s vision remains alive in contemporary political debates, and the American policy imagination. In a 2004 book, Cass Sunstein described the Second Bill of Rights as “FDR’s Unfinished Revolution,” and argued that we need it now more than ever. When Sunstein was nominated by President Obama as a top advisor, conservatives seized on this as a reason to oppose his confirmation. Glenn Beck, master of the paranoid style, even cited the Second Bill of Rights when he named Sunstein “the most dangerous man in America.” 

So the idea of a real right to work is still with us. In fact, just a few weeks ago it was proposed by none other than the President of the United States. 

[Spoiler alert: if you haven’t yet binged your way through the first two seasons of House of Cards, consider doing so before reading on. Or you can just catch up on the plot here.] 

The president in question, of course, is Frank Underwood, not Barack Obama. In the latest season of House of Cards, Underwood confronts an unemployment crisis by proposing a radical work-guarantee program. (This isn’t the first time the policy has played a leading role: Kevin Kline created such a program when he played POTUS in the 1993 film Dave.) 

The fictional political world imagined by House of Cards is incredibly cynical, and some reviewers have found its policy-focused plotlines to be tedious. But its creators have tried to imagine how a real right to work policy might play out, and are effectively screen-testing the idea in front of millions of Americans. They have prompted commentators to debate whether it could happen. Does the political deals the show depicts defy political logic? In any case, would the policy be legal? Is it doable in the real world? Is it just plain bonkers?

Meanwhile, out in the real world, scholars have laid out proposals for how a job guarantee program might work. Bill Quigley, a professor at Loyola Law School in New Orleans, has proposed a constitutional right to a job at a living wage. Pavlina Tcherneva, a professor of economics at Bard College, has argued (here and here, and in this video) for creating jobs in the social enterprise sector, rather than through direct public employment. Her proposal is informed by prior research finding that after the 2001 economic crisis in Argentina, poor women far preferred the government’s guaranteed jobs program to the cash transfer policy that replaced it. 

What might Americans think of a right to work law that lived up to its name? You might find potential supporters in unexpected places. In his book, Sunstein notes that a 1998 poll found 64% of Texans agreed that “the government should see to it that everyone who wants to work can find a job.” Even a majority of self-described conservatives agreed with the statement. (The complete polling data are here.) 

Millennials could be a natural constituency for a real right to work law. The effective unemployment rate among Millennials (18-29 years old) hit 16% as recently as 2013. Since then the situation has gotten a bit better, but the unemployment rate for younger Millennials (16-24 years old) is still more than double the overall national rate. 

A Pew study has found that Millennials are more likely than older generations to say they support an activist government. But the parents of Millennials might also see the value of a jobs program, since currently they are the ones doling out financial support to their kids, a pattern that is cutting into their retirement savings.

Whether or not politicians will propose a real right to work, and whether it could gain public support, remains to be seen. For the time being, “right to work” still refers to policies that dismantle the membership and collective bargaining models that labor unions and employers have relied on for decades. In Part 3, we’ll look at policy ideas that unions and legislators might pursue now that “right to work” is law in half of the states.

On Right to Work, Part 1: Governor Walker’s Hohfeldian Moment of Truthiness

This post was written by Nate Ela, of COWS

Yesterday, Wisconsin governor and all-but-official presidential candidate Scott Walker signed a so-called “right to work” bill into law. It was published today. Wisconsin is now the 25th state with such a law. But interestingly, Walker was careful not to describe what he signed as a “right to work” law. From his quotes at the signing event to the sign taped to his desk to his press release, he instead called it a “Freedom to Work” law.

 

(Mike De Sisti/Milwaukee Journal-Sentinel, via Associated Press)

This tweak was a bit odd, since Wisconsin’s Legislative Reference Bureau had summarized S.B. 44 by writing “This bill creates a state right to work law.” The term “right to work” also appeared in the text of the bill itself, and now in 2015 Wisconsin Act 1. 

Why the difference? Why “freedom” rather than “right”?

It could be that Walker and his aides were simply looking for a better frame. Though it’s not clear what was wrong with “right to work” in the first place. “Right to work,” which no less a wonk than Ezra Klein has called “a triumph of framing,” has put opponents on the defensive, fumbling for alternatives such as “right to work for less,” or “so-called ‘right to work’” (see above), or even “right to freeload.” 

Perhaps instead — who can really say? — the change was because Walker doesn’t want to foster the impression that his law actually creates a right to work. It doesn’t, of course, not any more than it creates a duty to provide employment. (More tomorrow, in Part 2, on ideas of what that — an actual right to work — might look like.) 

If this is the real reason behind Walker’s reframing — and admittedly, it’s probably not — then he might be commended for trying to get things at least a little closer to the truth. We might think of “freedom to work” as an almost-truth, a little bit of Walkerian truthiness.

Why does it get closer to the truth? Here we must summon the ghost of Wesley Hohfeld, who just over a century ago wrote in the Yale Law Journal that “the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities.”

Hohfeld famously (at least among legal scholars) took it upon himself to clear things up, by laying out a scheme of fundamental jural relations: 

 

In Hohfeld’s terminology, jural correlatives are legal relations in which one thing corresponds to another. For example, if X has a right against Y to receive employment, the correlative is that Y is under a duty toward X to provide employment. Obviously, this sort of right-duty relation is not what is at stake in “right to work” laws.

Instead, Walker’s reframing moves us over one column in Hohfeld’s table of jural correlatives. Hohfeld noted that “a privlege is the opposite of a duty, and the correlative of a ‘no-right.’” Here, if we think of Walker’s “freedom” as equivalent to Hohfeld’s “privilege” then at least Walker has identified, probably unknowingly, the correct jural relation in play. As Hohfeld put it, “A ‘liberty’ considered as a legal relation (or ‘right’ in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege.” 

So the law Walker signed gives workers a legal privilege — not to work per se (they already had that privilege), but to work without having to join a union or pay dues. This is the jural opposite of the duty that collective bargaining agreements could have created for workers as recently as last week. Then, a collective bargaining agreement could have created a duty on the part of a worker to pay the equivalent of dues. Not so anymore. After today, agreements renewed, modified, or extended may not create such a duty. 

The correlative to the new legal privilege created by Walker’s “freedom to work” law is a no-right on the part of any person to compel a worker to join a union or pay the equivalent of dues as a condition of employment. What’s more, the law criminalizes the violation of this no-right. This is to say that any bosses (union or actual) who assert a right to compel union dues or membership not only don’t have that right, but have also committed a Class A misdemeanor. This criminal liability provision, of all things, is what falls under the title “Right to Work” in Section 12 of the Act.

In the end, then, putting “so-called” in front of “Right to Work” is conceptually correct. As Walker seems to have acknowledged, the law doesn’t create a right to work — it creates a freedom, or legal privilege, to work without having to pay dues or join a union. Put differently, it creates a legal privilege to free-ride on the agreements that unions have negotiated with employers.

Tomorrow, Part 2 will take a look at some visions people have had of a real right to work — and how their proposals have played out. And, later in the week, Part 3 will survey legislative proposals for the labor movement, now that workers in half the states have a legal privilege to free-ride.

Catching up on news from the states

In case you missed them, some interesting articles came out late last week concerning legislative developments in the states.

 

ProPublica and NPR reported extensively on the ways in which many states have been rolling back worker compensation benefits in recent years. The story was released along with a set of interactive maps, graphs, and graphics that allow you to compare reforms, benefit levels, and employer premiums state by state. Lest this overwhelm readers with data, there's also a moving photo essay illustrating how cutbacks in California have affected the quality of life of an injured worker. 

 

The New York Times reported on how legislatures in a number of states have been debating whether to allow businesses to discriminate against same-sex couples on religious grounds, in anticipation that the Supreme Court will rule in favor of same-sex marriage later this year.

 

And Politico reported on a visit by progressive state legislators to Washington DC late last week, noting that their meetings with administration officials and liberal leaders in Congress "seem to signal that national Democrats are finally gearing up to counter a well-financed network of conservative groups led by the American Legislative Exchange Council (or ALEC)," by lining up in support of the State Innovation Exchange (or SiX).