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 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.
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.
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.
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?
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.
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, Marriott 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.
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.
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.
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.
If history is any guide, turnout on this midterm election day won’t top 45% of eligible voters. (It hasn’t since 1970.) Over half of Americans, apparently, simply don’t feel it’s worth the trouble to vote in a midterm election.
What if we made it easier to vote? WhyTuesday.org notes that in the last census, 27% of nonvoters said they were too busy or couldn’t get the time off to vote. This has long been the number one reason that Americans have said they don’t make it to the polls. How might things be different if Election Day were a national holiday, or if we moved voting to the weekend? Countries that vote on the weekend do have much higher rates of turnout: France (67.3%), Germany (80.2%), Thailand (82.1%), Russia (56.6%), Japan (68.7%).
Some states – including Delaware, Hawaii, Kentucky, Montana, New Jersey, New York, Ohio, West Virginia, and the territory of Puerto Rico – have made Election Day a civic holiday, meaning state employees get the day off. Congressman Steve Israel (D-NY) has introduced The Weekend Voting Act, H.R.1641, in the U.S. House of Representatives, where govtrack gives it a 1% chance of being enacted. (You can learn about other reforms that would make it easier to vote or increase turnout here, and sign a White House petition to make Election Day a holiday here.)
Even with these attempts at reform, it’s worth asking: is the United States in fact the greatest democracy in the world? At least in terms of voter turnout, it definitely isn’t. Indeed, with just 47.7% average turnout since 1945, the U.S. ranks dead last among G8 countries, and 138th out of the world’s 172 countries. The numbers are enough to make one wonder if there might be some people in the United States who like it this way, and would prefer not to have more Americans at the polls.
But what if things were different? What if we not only got time off work to vote, but we were also expected to vote as one of our civic duties?
In 1996, Professor Arendt Lijphart used his Presidential Address to the American Political Science Association to think through these questions. He reasoned that low voter turnout is a serious democratic problem, because, among other things, it systematically biases the vote against less well-to-do citizens, and it leads to unequal political influence. After considering possible reforms like weekend voting, Lijphart concluded that, in the end, compulsory voting is the better option – its advantages “far outweigh the normative and practical objections to it.” If you think low turnout is problematic — or, especially, if you don’t — the speech is worth a read.
From time to time, Americans have actually experimented with making voting a legal duty. From 1777 to 1789, the Georgia state constitution required people to vote (at least those white men who then had the franchise). And during the early 1890s, Kansas City required its residents to vote. In 1896, the Missouri Supreme Court struck down the provision in Kansas City v. Whipple, but as former White House counsel John Dean has pointed out, that casedidn’t resolve the question of whether it would be permissible under the U.S. Constitution to require citizens to vote.
Looking around the world, there are 22 countries that require their citizens to vote (though not all of them enforce the requirement). These include Greece, Belgium, Mexico, most of the countries in South America, and even the Democratic Republic of the Congo. In Australia, where voting has been mandatory since 1924, voter turnout rates are regularly between 93 and 95 percent.
So when you head to the polls today – and we at ALICE certainly hope you do – take a moment to think about whether the U.S. should join the club. Would it be un-American to require our fellow citizens to participate in choosing our elected representatives? Or is it more un-American to be okay with the fact that in midterm elections, most of them don’t?
Today is Thomas Jefferson’s birthday; he would be turning 271 years old. It feels like a good day to mention how one of Jefferson’s writings on property has influenced my thinking about urban farming. In the fall of 1785, when he was 42, Jefferson was living in France. In late October, he traveled to Fontainbleau, a village outside of Paris where the king had a palace, and went every year to go hunting.
Pierre-Denis Martin, Vue du Château de Fontainbleau (1718-1723). Click for source and higher resolution image.
This was Jefferson’s first visit to Fontainbleau, so he decided to take a walk to the top a nearby hill and get a view of the countryside. In a letter to James Madison, he wrote that
As soon as I had got clear of the town I fell in with a poor woman walking at the same rate with myself and going the same course. Wishing to know the condition of the labouring poor I entered into conversation with her, which I began by enquiries for the path which would lead me into the mountain: and thence proceeded to enquiries into her vocation, condition and circumstance. She told me she was a day labourer, at 8. sous or 4 d. sterling the day; that she had two children to maintain, and to pay a rent of 30 livres for her house (which would consume the hire of 75 days), that often she could get no emploiment, and of course was without bread. As we had walked together near a mile and she had so far served me as a guide, I gave her, on parting 24 sous. She burst into tears of a gratitude which I could perceive was unfeigned, because she was unable to utter a word. She had probably never before received so great an aid.
Jefferson wrote that “This little attendrissement, with the solitude of my walk led me into a train of reflections on that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country and is to be observed all over Europe.”
The property around Fontainbleau, he observed, was concentrated into the hands of just a few owners. These landowners employed some of the villagers, but these were ultimately fewer than “the most numerous of all the classes, that is, the poor who cannot find work.” Jefferson asked himself, “what could be the reason that so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands?”
Most obvious, of course, was that much of the land was reserved for hunting. But Jefferson reasoned that it was the enormous wealth of the landowners that allowed them to ignore the additional revenue they might generate by allowing people to cultivate their land. An equal division of property, Jefferson observed, was “impracticable.” “But the consequences of this enormous inequality producing so much misery to the bulk of mankind,” he argued, mean that “legislators cannot invent too many devices for subdividing property.”
Jefferson went on to consider some of these devices. All children could be allowed to inherit property, rather than just eldest sons. Or property could be taxed progressively, above a certain threshold.
But then comes the most interesting part. Jefferson concluded that:
Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not the fundamental right to labour the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.
Jefferson’s reasoning seems to flow straight out of Locke’s thinking on the distributive consequences of converting common land into private property — what has come to be known as the “Lockean proviso.” If we understand land to be a common resource, then the conversion of some of that land into private property, Jefferson argues, triggers a responsibility to ensure that people who don’t have access to property have some way of earning a living. During periods of economic crisis, “the fundamental right to labour the earth” returns to the unemployed. Jefferson even suggested how that might be coordinated: unemployed people who can’t find work, but who can find unused land, should be able to cultivate it for a moderate rent.
Writing in 1785, Jefferson didn’t think the economic situation in the United States merited such a response. At the time, uncultivated land seemed to be abundant — although native Americans might have disagreed with the assumption that it was in fact unused — and a policy of ensuring widespread smallholding seemed sufficient to Jefferson.
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How are Jeffersons’ ramblings relevant to urban farming in the U.S.? Admittedly, we have no king, and land in and around American cities is not reserved for the royal hunt. But there have been periods in U.S. history — perhaps including the current period — when people have tried to figure out ways of granting unemployed people access to unused land, so that they might grow some food. This, despite the fact that Jefferson’s “fundamental right to labour the earth” never made it into the Constitution or Bill of Rights. How might the lingering notion of such a right motivate the ways that people have thought about and organized around urban land use? And what would Jefferson think if he were to see certain parts of Detroit, Cleveland, Chicago, or other post-industrial cities in the United States? Would he feel discomforted by the sight of “uncultivated lands and unemployed poor”? Would he approve of efforts to put land into use as farms and gardens?
You wouldn’t know it by watching Congress, but scientists have eliminated pretty much any doubt about the reality of anthropogenic climate change. (The recent National Academy of Sciences’ report being the latest definitive statement of the overwhelming, and worrying, evidence.)
There’s also little doubt that taxing carbon emissions would be an important start to addressing the problem. Most leading economists, even conservative ones, agreed years ago that taxing carbon is a less expensive way to reduce CO2 emissions than a hodgepodge of regulations. The policy fix is no recent breakthrough: it simply follows economist Arthur Pigou’s teachings from nearly a century ago.
Yet it’s also pretty much certain that in the current Congress, any bill to put a price on carbon is dead on arrival. And if Nate Silver’s numbers are right, the midterm elections aren’t likely to improve the odds.
Meanwhile, it remains a live question, in a set of cases argued before the U.S. Supreme Court in January, how the EPA may permissibly regulate greenhouse gases under the Clean Air Act. As so often happens, court watchers expect Justice Kennedy to cast the deciding vote – and tea leaves are mixed on whether he’s more likely to support or rule against the Obama administration.
If the wrangling in DC over how the federal government may address climate change (or if it should even do so at all) inspires despair, it might help to recall the hopeful words of Justice Brandeis. “It is one of the happy incidents of the federal system,” he wrote, in his famous dissent in New State Ice v. Liebman, “that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Increasingly, state legislators and policy advocates are starting to experiment with legislative language around carbon taxation. What’s bubbling up?
First, it’s worth noting that the most promising experiment comes from north of the border, where British Columbia has had a revenue-neutral carbon tax law in place since 2008. The Atlantic Cities blog published a helpful summary of the law, and its success, earlier this week.
In the U.S., bills related to carbon taxation have been introduced in Oregon, Washington, and Massachusetts. Oregon and Washington agreed in the Pacific Coast Action Plan on Climate and Energy, signed last October, to join British Columbia and California in putting a price on carbon. In Oregon, the 2013 legislative session saw the introduction of two separate bills, HB 2792 and HB 2874, which would have taxed fossil fuels according to their carbon content. Both failed to reach a vote, but a separate bill, SB 306B, which authorizes a legislative report on a clean air tax or fee, was signed into law in August 2013. That report is due this November, meaning further legislation on a carbon tax is likely on hold until the 2015 session.
An advocacy group called Carbon Washington has been working on draft carbon tax legislation and spent part of 2013 organizing to place a measure on the November 2014 ballot. They announced in December that they have backed off that strategy for now. (Presumably giving Yoram Bauman, one of Carbon Washington’s organizers, a bit more time for his gigs as a stand-up economist.) A January 2014 report by the state’s Climate Legislative and Executive Workgroup, which was created pursuant to 2013 SB 5802, recommended that Washington implement a “cap-and-market” program to meet its emissions targets.
In Massachusetts, 2013 HB 2532 also would have created a revenue-neutral carbon tax. Although filed with 13 cosponsors, it failed to reach a vote. It may, however, have helped move forward public debate on the policy. Three of the five candidates in the Democratic primary for Massachusetts governor have come out in favor of a carbon tax, though the leading candidate, Attorney General Martha Coakley, has so far declined to commit.
Finally, in California, the cap-and-trade plan put in place in 2006 by AB 32 is set to expand to cover gasoline. State Senate leader Darrell Steinberg recently proposed replacing the cap-and-trade system with a simpler carbon tax beginning in 2015. He would allocate most of the revenues – estimated at $3.6 billion in the first year – to increasing the earned income tax credit for low-income residents, who pay a proportionally larger share in energy costs, and to transit and environmental programs. Of course, any carbon-tax bill would have to pass through both houses of the California legislature with the 2/3 supermajority required for tax hikes.
As people like Andrew Revkin and Richard Lazarus have pointed out, climate change poses a “super wicked problem.” A carbon tax in one or two states won’t be a silver bullet. Indeed, implementing a carbon tax in just one jurisdiction could raise some of the potential problems that economist Tyler Cowen has pointed out. But, given that the near-term prospects for congressional climate action are next to zero, the bills currently bubbling up in Olympia, Salem, and Boston offer a promising way to get the policy process moving forward in other statehouses, and, sooner or later, in Congress.
