From the Dispatch

Federal Recovery Efforts Saved 8.5 Million Jobs, Stopped Depression

Nathan Newman — Thu, 29 Jul 2010 11:49:48 -0400

When big bank speculation crashed the economy, millions were driven into unemployment. But, according to a new study by two leading economists, the combination of the Troubled Asset Relief Program (TARP) loans to banks, loosening of the money supply, and federal stimulus funds for states and individuals, helped stop a far worse potential full-out Depression that would have left an additional 8.5 million Americans without jobs on top of the 8 million who have lost their jobs since the recession started-- what would have been a nearly doubling of the job loss due to the economic crisis.

The study was written by the bipartisan team of Alan Blinder, a former Vice-Chair of the Federal Reserve, and Mark Zandi, a former McCain economic advisor and head of Moody Analytics. One thing the authors emphasize is the sheer magnitude of the economic collapse faced by the Obama Administration as it came into office: In early 2009, "Real GDP was falling at about a 6% annual rate, and monthly job losses averaged close to 750,000." While the lost jobs have not been regained, the economy was stabilized and GDP growth of nearly 3% began. As the authors note:

The stimulus has done what it was supposed to do: end the Great Recession and spur recovery. We do not believe it a coincidence that the turnaround from recession to recovery occurred last summer, just as the ARRA [federal stimulus plan] was providing its maximum economic benefit.

To put the cataclysm faced by the Obama administration in perspective, the economists estimate that the direct budgetary costs of the recession plus lost revenue due to the economic collapse added up to $2.35 trillion, or about 16 percent of G.D.P. By comparison, the savings and loan crisis of the 1980s cost only about $350 billion in today’s dollars.

Federal Support of the States Decisive for Economic Stabilization: With state revenues plunging due to the recession, the authors specifically highlight the importance of recovery funds that went to the states to forestall job-destroying budget cuts. The authors emphasize that "[s]tate and local government aid is another especially potent form of stimulus with a large multiplier," creating economic growth for every dollar spent.

Unfortunately, the federal spending for the states mostly just counterbalanced revenue losses at the state level, meaning the federal aid was a "defensive stimulus" that "saves jobs rather than creates them." The federal government needed to commit to a much larger job creation program to really counterbalance the revenue losses at the state level.

TARP Bank Bailout Program More Successful, Less Costly Than Media Hype: One unique aspect of this report is its focus on quantifying the jobs saved by TARP and related programs to restore credit in the financial industry. The authors estimate that "the financial-rescue policies are credited with saving almost 5 million jobs." And while headlines blared that TARP would cost $700 billion, in fact, most of the money spent was in the form of loans and equity investments, part of which have been repaid. In the end, the authors estimate that the TARP program will end up costing taxpayers less than $100 billion.

The economic success of TARP and related programs in saving jobs should not obscure the fact that the money used could have done even more to improve corporate responsibility in the financial industry. Analysts like Dean Baker at the Center on Economic and Policy Research have rightly criticized the fact that companies like Goldman Sachs received billions of financial rescue dollars without being required to restrict executive compensation or take many other actions in the public interest. This all emphasizes the need for both the recently passed financial reform law as well as federal and state revenue increases targetting those who benefited from successful recovery programs to help fund job creation for those who still need help.

A Success Despite Program Limits: Still, as Blinder and Zandi argue, the financial rescue package helped to "restore stability to the financial system and to end the freefall in housing and auto markets" just as the ARRA recovery plan saved jobs throughout the economy. 8.5 million jobs saved is only a start in light of the almost 15 million Americans that still face unemployment, but that success was critical in avoiding a Despression that would have turned a challenging budget and jobs situation into a completely catastrophic one.

Resources:
Alan Blinder and Mark Zandi - How U.S. Policy Ended the Great Recession
Dean Baker - Goldman Sach's Golden Parachute

NJ Privatization Panel Report Pushes Ideology Rather than Facts

Altaf Rahamatulla — Thu, 29 Jul 2010 11:48:07 -0400

Since he took office earlier this year, New Jersey Gov. Chris Christie has waged an ideological war on state employees and programs, and advocated for unsustainable and costly privatization schemes. Even in light of overwhelming public opposition to privatization and the significant pitfalls associated with these types of initiatives, the Governor established a privatization task force by executive order in early April, seeking to identify $50 million in savings.

The panel, composed of lobbyists, business interests, and pro-privatization advocates, issued its recommendations earlier this month. The report proposes privatizing programs across the board, including toll booth collections, preschools, state parks, prison food services, bus routes, and car emission inspections. However, the report's conclusions unabashedly promote conservative ideological desires in place of hard data or rigorous research. For instance, a recent In The Public Interest article points out:

The report's extravagant cost-saving claims are unsupported by any detailed data (the tables are littered with 'TBD'- cost savings 'to be determined'), and the scarce figures provided raise more questions than they answer... On p.15 the report claims the state can save $3.2 million by privatizing its One Stop Career Centers, then on p. 31 says 'direct state spending' on the program 'is $3.2 million annually.' Are we to believe the private sector will run these centers for free?

The report has been roundly criticized by several sources, from environmental groups to elected officials. New Jersey Senate President Steve Sweeney reflects, "[c]ertainly state government needs to operate in a more cost-effective way, but our history with privatization is dotted with instances where we’ve had to go back and spend more just to clean up mistakes. We cannot rush into privatizing just for privatization’s sake." The state’s troubled history with privatization is well-documented. For instance, the state has dealt with the Motor Vehicles Commission distributing contracts to politically connected vendors in the 1980s, millions of dollars wasted on contractors for vehicle inspections, the imprudent implementation of the E-Z Pass toll system that was fraught with high cost and delays due to private contractors, and currently, the mismanagement of over 200 lease agreements and contracts with private vendors operating on public land.

That privatization continues to move forward despite such a poor track record reflects pure ideology that the private market delivers the most efficient outcomes, even without demonstrable results. As Progressive States Network has previously detailed, legislative action to limit privatization is necessary to safeguard against the loss of accountability and public revenue that these misguided schemes often produce.

Resources:
Food & Water Watch - Has Water Privatization Gone Too Far in New Jersey?
In The Public Interest - NJ Privatization Report Claims Savings without Evidence
The New Jersey Privatization Task Force - Report to Governor Chris Christie
Progressive States Network - Critics Resisting New Jersey Governor's Push for Further Privatization
Progressive States Network - New Jersey Voters Reject Privatization
The Star-Ledger - NJ Environmental Groups Slam State for Mismanaging Private Vendors at State Parks
The Star-Ledger - NJ Democrats Criticize Christie Administration Report Suggesting Privatization

Anti-immigrant Proposals Continue to Fail in Wake of Arizona’s Law

Suman Raghunathan — Mon, 26 Jul 2010 12:05:36 -0400

In the wake of the April 2010 passage of Arizona’s draconian and misguided anti-immigrant state law, SB 1070, which would give local governments responsibility to enforce federal immigration law, media coverage has focused on the many states, elected officials, and candidates who have voiced their support for similar anti-immigrant legislation. Despite the disturbing situation in Arizona, however, what is increasingly becoming clear is that anti-immigrant policies and initiatives are failing across the country in the wake of SB 1070’s passage, underlining Arizona’s anti-immigrant approach as an outlier.

As this Dispatch will detail, after considerable media hype about Arizona-style bills sweeping across the nation, the reality is that from from Nevada to Arkansas to Massachusetts to Kansas and Rhode Island, anti-immigrant bills and ballot initiatives largely didn't move or failed to make this fall's ballot. A key reason: most state leaders and police chiefs recognize that requiring local governments to assume immigration enforcement responsibilities from the federal government will distract them from fighting violent crime and undermine trust with local residents that are essential to successful community policing.

Table of Contents:

- A Trend of Failed Anti-Immigrant Proposals

- Anti-Immigrant Laws Increase Crime and Hamper Community Policing Efforts

- Lawsuits Against AZ SB 1070 Seek to Maintain Clear Federal Responsibility for Immigration Law

A Trend of Failed Anti-Immigrant Proposals

In the wake of AZ SB 1070’s passage in late April, a far right network of groups and legislators announced plans to move bills in state around the country. But the list of states rejecting those bills continues to grow and efforts to get anti-immigrant proposals on the ballot continue to fail.

Ballot Initiatives Fail in Nevada and Arkansas: The latest state to join this list is Nevada, where Assemblyman Chad Christensen’s effort to gather signatures for an anti-immigrant ballot initiative similar to Arizona’s recently faltered in the face of a lawsuit. Christensen’s effort was challenged by the Nevada Open For Business Coalition, a group that includes State Assemblymen Mo Denis and Ruben Kihuen as well as the Nevada Resort Association, the Las Vegas Convention and Visitors Authority, the Las Vegas Latin Chamber of Commerce, and the NAACP. The coalition is also working with the Las Vegas Chapter of the American Civil Liberties Union. The delay caused by the Coalition's multiple legal challenges caused Christensen, who recently lost a June 8 US Senate Primary, to drop his petition rather than attempt to get his broad anti-immigrant proposal on the ballot.

In Arkansas, the anti-immigrant group Secure Arkansas also failed to get its anti-immigrant proposal (which simply re-iterated existing federal law by seeking to bar undocumented immigrants over the age of 14 from receiving public assistance) on the November 2010 ballot. Secretary of State Charlie Daniels rejected the group’s petition after finding they were nearly 10,000 signatures below the minimum required to appear on the ballot.

Anti-Immigrant Legislation Defeated or Blocked in Multiple States: In both Massachusetts and Rhode Island, state leadership refused to allow anti-immigrant legislation to gain traction. In Massachusetts, twenty-seven pages of anti-immigrant budget amendments that resembled Arizona's SB1070 was shot down and ultimately approved as a final bill which simply restated existing federal bars on undocumented immigrants accessing public benefits, and included no new anti-immigrant provisions.

Rhode Island’s anti-immigrant bill, introduced by conservative Democrat State Representative Peter Palumbo, did not even receive a public hearing earlier this summer: the bill was ‘killed’ by House Speaker Gordon Fox, who voiced his opposition to the bill and reiterated that enforcing immigration laws remains the responsibility of the federal government.

And in Kansas, when a conservative legislator sought to attach an Arizona-style anti-immigrant amendment to the state budget, Kansas Representative Delia Garcia challenged its late introduction on procedural grounds and the Republican chair of the chamber's Rules Committee ruled the amendment out of order.

Most High-Immigration States Have Taken a Positive Approach to Integrate New Immigrants: As PSN detailed in a 2008 report, only 11% of undocumented immigrants live in states that have enacted comprehensive punitive anti-immigrant policies. Far more states promote positive integration policies and believe leaving immigration enforcement policy to the federal government is the best approach.

Resources
Colorlines - The Far-Right Movement Behind Arizona Copycat Bill
Progressive States Network - The Anti-Immigrant Movement that Failed: Positive Integration Policies by States Still Far Outweigh Punitive Policies
Progressive States Network - State Immigration Policy to Promote National Change

Anti-Immigrant Laws Increase Crime and Hamper Community Policing Efforts

One reason many leaders are rejecting Arizona-style anti-immigrant policies is the clear evidence that they undermine public safety. Police chiefs nationwide, including the chiefs of Los Angeles, Houston, Philadelphia, New York, Phoenix, and Tucson, have consistently underlined their opposition to local enforcement of federal immigration law, citing the dramatic and negative impact these approaches have on community members’ willingness to cooperate with the police -- and predicted they will increase crime. Law enforcement leaders such as Salt Lake City Chief of Police Chris Burbank have voiced concerns that burdening them with enforcing federal immigration law will actually make communities less safe: witnesses will be less likely to assist police investigations for fear of disclosing their immigration status; women will fear reporting instances of domestic violence, and crimes will go unreported, affecting all residents' safety.

Recent evidence highlights this problem with anti-immigrant legislation.

More Immigrants Means Less Crime, Not More: Overall, states with high immigration levels have actually seen their crime levels decrease; updated FBI and law enforcement data debunk any connection between higher levels of immigration resulting in more crime. The Federal Bureau of Justice Statistics reports that violent crime declined by 35% from 1994 to 2001 -- a period when the nation saw its undocumented population double. This precipitous drop in crime is part of a national trend, one echoed along the U.S.-Mexico border and in immigrant-heavy cities such as San Diego, El Paso, New York, Los Angeles, Chicago, and Miami. In fact, even conservative groups found states with the steepest growth among their immigrant residents also report the lowest crime rates. In these 19 states, the total crime rate declined nearly 14% from 1999 to 2006.

Arizona Itself Shows Failure of Anti-Immigrant Approach: Evidence from Arizona highlights why local immigration enforcement is counterproductive to fighting crime. The FBI reports that violent crime has been falling in Arizona for years -- even as the state’s number of undocumented residents rose.

The glaring exception to this trend in Arizona is Maricopa County, which falls under the jurisdiction of its notorious Sheriff Joe Arpaio. Arpaio has devoted considerable (and often-scarce) law enforcement resources to apprehending undocumented residents county-wide. Arpaio’s insistence on apprehending otherwise law-abiding undocumented residents in high-profile (often televised) raids and routine stops of Latino drivers for immigration checks means the Sheriff’s Department has less time to focus on violent criminals and pursue felony warrants. The East Valley Tribune, an Arizona newspaper, won a 2008 Pulitzer Prize for their multi-part series on the evolution and impact of Arpaio’s anti-immigrant pursuits.

Despite his ‘law and order’ rhetoric, Arpaio’s approach is a failed law enforcement strategy, and one that has apparently served to increase crime in his jurisdiction-contrary to state crime trends. Recent data from the Arizona Department of Public Safety and compiled by America’s Voice found the Maricopa County crime rate increased by 58% from 2002 to 2009, while the state as a whole saw an average 12% decrease in crime rates. Other Arizona localities that did not engage in broad raids and traffic stops saw their crime rates plunge during the same period: Phoenix enjoyed a 14% decrease in crime; Tempe saw a 26% decrease; and Mesa (Senator Pearce’s district) experienced a 31% decrease.

Misinformation from the Anti-Immigrant Right: Many anti-immigrant legislators and candidates have issued a steady drumbeat of misinformation that attempts to draw a connection between immigrants and crime. AZ Governor Jan Brewer, State Sen Russell Pearce, Maricopa County Sheriff Joe Arpaio and national anti-immigrant groups such as the Federation for American Immigration Reform (FAIR) have attempted to justify and explain their efforts toward draconian state immigration legislation by claiming their proposals will make communities safer.

Yet even as Pearce and Brewer have, in fact, predicted that their state’s anti-immigrant measures will result in lower levels of crime throughout Arizona, evidence from Maricopa County shows that exporting Sheriff Joe Arpaio's brand of anti-immigrant policing will likely reverse the progress made in other parts of the state, imposing Maricopa's failed model on the the whole state.

Resources:
Immigration Policy Center - Arizona's Punishment Doesn't Fit the Crime: Studies Show Decrease in Arizona Crime Rates Over Time
Immigration Policy Center - New FBI data Confirms Falling Crime Rates in Arizona: Violent Crimes Are Down in the State's Three Largest Cities
America's Voice - Arizona Immigration Law Could Lead to Surge in Violent Crime
America's Voice - Fact Sheet: Sheriff Joe Arpaio's Notorious Record
East Valley Tribune - Reasonable Doubt Series
Washington Post - US Police Chiefs Say Arizona Immigration Law Will Increase Crime
Americas Majority Foundation - Immigration and Wealth of States

Lawsuits Against AZ SB 1070 Seek to Maintain Clear Federal Responsibility for Immigration Law

As the evidence increasingly points to how local police and sheriffs enforcing immigration law undermines community policing and increases crime rates, it becomes even clearer why the nation has traditionally kept responsibility for enforcing immigration law in the hands of federal officials. But as PSN has detailed before, Arizona’s law, unprecedented in its scope if it is implemented, would land immigration enforcement (a federal responsibility) squarely in the hands of state government.

This blurring of immigration enforcement roles between federal and state officials has already been legally challenged by the U.S. Department of Justice and at least seven prominent national civil rights organizations, including the American Civil Liberties Union, the National Immigration Law Center, and the Mexican American Legal Defense and Education Fund. Both the U.S. Department of Justice and these civil rights groups have filed lawsuits against Arizona’s law which is scheduled to take effect on July 29 if a federal court does not impose an injunction.

Arizona's Law Undermines Federalism and Threatens Racial Profiling: SB 1070’s scope is unprecedented, misguided, and likely unconstitutional: the law not only makes it a crime to lack immigration status, but also allows state and local law enforcement to demand proof of citizenship or immigration status from anyone they believe has ‘reasonable suspicion’ of being undocumented. Apart from greenlighting racial profiling, Arizona’s approach is widely perceived by legal experts as unconstitutional because it requires the state to take on enforcing federal immigration law.

A federal judge heard arguments outlining seven civil rights groups’ opposition to Arizona’s anti-immigrant law on July 22. These groups are asking for a preliminary injunction to freeze implementation of the law, which is scheduled to go into effect on July 29^th.

The lawsuit’s central legal argument (one echoed by the US Department of Justice’s own lawsuit challenging SB 1070) is the law seeks to pre-empt the federal government’s jurisdiction over enforcing federal immigration law, and that it allows the state too much power to enforce immigration law. Finally, the groups’ lawsuit states that implementing the law would cause considerable harm to Arizona residents as a whole. State legislators, immigrant rights advocates, and responsible law enforcement professionals will be hoping the federal courts agree.

Resources:
Progressive States Network - Arizona and the Nation: A Failed State Versus Positive Approaches to Immigrant Integration
Progressive States Network - Arizona Jeopardizes its Economic Future As it Contemplates Passing Anti-Immigrant Law
National Immigration Law Center - NILC and Civil Rights Groups Ask Court to Block Implementation of Arizona Law
American Civil Liberties Union Immigrant Rights Project - Friendly House et.al vs. Halliday et. al: Arizona's Racial Profiling Law
Immigration Policy Center - The Impact of SB 1070: Usurping the Federal Government's Ability to Set Clear Enforcement Priorities
Immigration Policy Center - The Legal Challenges and Economic Realities of Arizona's SB 1070
Progressive States Network - Polling, The Arizona Law, and Majority Support for Comprehensive Immigration Reform
Progressive States Network - Press Call: State Legislators for Progressive Immigration Policy

National Popular Vote Victory in Massachusetts

Cristina Francisco-McGuire — Thu, 22 Jul 2010 11:25:12 -0400

National Popular Vote Victory in Massachusetts Adds Momentum to Changing Presidential Vote System

Last week, the Massachusetts Senate passed National Popular Vote (NPV) legislation by a 28-10 vote, a little more than a month after the state’s House of Representatives approved NPV by an overwhelmingly bipartisan majority.

With final approval by the legislature likely soon, this will add Massachusetts' 12 electoral votes to approval of NPV by Hawaii, Illinois, Maryland, New Jersey and Washington, bringing the electoral votes of states approving the NPV interstate compact to 73. When enough states approve NPV to bring the tally of electoral votes to 270 (the number needed to win an election), the NPV interstate laws will award those state’s electoral votes to the candidate who receives the most votes nationally, replacing the current system where votes are awarded on a winner-take-all system state-by-state.

The momentum nationally for National Popular Vote remains strong: both chambers in four other states (Rhode Island, Vermont, Colorado and California) have approved NPV in the past few years, while at least one chamber in ten other states (Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, New York, North Carolina, and Oregon) have approved it.

Support in Massachusetts reflected broad public support, including a survey of voters conducted in May, which showed that 72% of Bay Staters want a system that will make every vote count, regardless of whether it is from a battleground state or not. Before the bill can go to Governor Deval Patrick for his signature, state law requires that it be formally affirmed, or enacted, one last time by both chambers. The enactment vote passed the House on Tuesday, while the Senate is still working to schedule its final vote.

Resources:
National Popular Vote
Boston Globe- Mass. Legislature Poised to Enact Electoral College Bypass Bill
Progressive States Network- National Popular Vote Approved in Chambers in New York and Massachusetts
Progressive States Network - National Popular Vote - A Voter Turnout and Civil Rights Issue

Delaware Becomes 2nd State to End Prison-Based Gerrymandering

Cristina Francisco-McGuire — Thu, 08 Jul 2010 13:08:35 -0400

Last week, Delaware became the second state in the country to pass legislation that would adjust US Census data to count incarcerated people as residents of their home addresses for redistricting purposes. It is awaiting Gov. Jack Markell’s signature.

The Census currently counts incarcerated people as residents of their prison location, artificially inflating the local population. As states use census tallies to redraw legislative districts, districts with a prison benefit from the resulting increased representation, while the home districts of incarcerated persons are short-changed. Twelve percent of one state house district in Texas is comprised of prisoners, while fiftteen percent of one Montana state house district consists of prisoners.

Prison-based gerrymandering is increasingly becoming a problem – the 2010 Census is expected to find five times as many people in prison as it did just three decades ago. Fortunately, states are moving to correct the problem. Maryland enacted the first law (SB 400/HB 496) to count incarcerated persons at their home address in April, and similar legislation is pending in New York.

Resources:
Prison Policy Initiative - Delaware Passes Law to Count Incarcerated Persons at their Home Addresses for Redistricting
Demos - Maryland Enacts Law to Count Incarcerated People at Their Home Addresses
Delaware - HB 384
Maryland - The “No Representation Without Population Act,” SB 400/HB 496

Indiana Supreme Court Upholds Restrictive Voter ID Law

Cristina Francisco-McGuire — Thu, 01 Jul 2010 11:37:48 -0400

In a disappointing turn of events, Indiana’s Supreme Court ruled 4-1 in favor of the state’s voter ID law, overturning last year’s decision by the Indiana Court of Appeals that deemed voter ID requirements unconstitutional partly because it treated those casting absentee ballots differently from those at voting booths. But in the end, the Indiana Supreme Court majority opinion stated, “It is within the power of the legislature to require voters to identify themselves at the polls using a photo ID.”

Disenfranchising Voters: While most states allow non-photo identification to establish identity, such as utility bills, payroll checks, or other government documents, Indiana only accepts photo ID’s issued by the state or federal government. Though the state allows those without ID’s to vote on provisional ballots, their votes are only counted if they are able to present proper ID within ten days.

The problem is that, while most Americans have government-issued ID’s, studies show that 6-10% of eligible voters don’t have a state-issued driver’s license or ID card, which amounts to potentially disenfranchising as many as 20 million people nationwide who are disproportionately poor, urban, non-white, and elderly.

The American Association of People with Disabilities further estimates that more than three million people with disabilities similarly do not possess state-issued photo ID.
Some US citizens – such as Native Americans born on reservations, and elderly African Americans born in the South under the care of midwives – were never issued birth certificates in the first place, a major roadblock to obtaining a state-issued photo ID.
Victims of natural disasters, such as Katrina, may also have had their original birth certificates destroyed.

A De Facto Poll Tax: In all cases, replacing these documents can be expensive and time-consuming – a new birth certificate can cost more than $40, while a new passport costs $97. Replacement citizenship documents for naturalized Americans costs $220. De facto poll tax aside, processing these requests can take as long as a year – during which time an otherwise eligible voter cannot vote.

And photo IDs don’t always reflect current information. Surveys show that only 48% of voting-age women with ready access to their birth certificates have a certificate with their current legal name, while only 66% of voting-age women with access to any proof of citizenship have a document with their current legal name. 10% of all voting-age citizens have a photo ID that does not reflect their current address and current legal name. Among those aged 18-24, the percentage increases to 18%.

The burden of voter ID laws is real, and suppresses the vote of a demographic that is overwhelmingly poor, urban, non-white, and elderly. The decision of Indiana’s Supreme Court will only serve to further disenfranchise an already-disenfranchised population.

Resources:
Progressive States Network - Voter ID Law Struck Down by Indiana Appellate Court
Demos Briefing Paper Series: Challenges to Fair Elections - Issue: Voter ID/proof of citizenship requirements for voting and registration
Center on Budget and Policy Priorities - Survey Indicates House Bill Could Deny Voting Rights to Millions of U.S. Citizens
NAACP Legal Defense Fund - Restrictive Voter Identification Laws: A Barrier to the Ballot Box for Eligible Voters
The Brennan Center for Justice - Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification
League of Women Voters v. Rokita

Supreme Court 2009-2010: Pro-Corporate, But Continued Trend Towards Deferral to State Authority

Nathan Newman — Tue, 29 Jun 2010 11:26:57 -0400

Yesterday, the Supreme Court ended its term with a bang with a ruling in McDonald v. City of Chicago that state gun control regulations can be struck down by federal courts based on the Second Amendment. While the number and scale of blockbuster decisions was not so high this session, the singular impact of the Citizens United case earlier in the term unleashing unregulated corporate money on elections, combined with the dangerous implications of the Rent-A-Center, West v. Jackson arbitration decision, emphasizes the pro-corporate bias the Supreme Court has increasingly exercised in recent years.

As detailed below, other decisions on public university governance of student groups, property rights challenges to beach restoration programs and regulation of ballot initiative processes, did continue the trend in recent terms of the Supreme Court deferring to state authority in major cases. And criminal justice cases continued to be a mixed bag of protecting individual rights versus upholding state discretion.

Table of Contents:
- Citizens United and the Supreme Court’s Pro-Corporate Bias
- Supreme Court’s Deferral to State Authority
- Criminal Justice
- Conclusion

Citizens United and the Supreme Court’s Pro-Corporate Bias

There is little question that Citizens United will be one of the major cases that defines this year’s term—and in many ways will frame the legacy of the rise of Chief Justice John Roberts and Justice Samuel Alito whose presence on the court has led to the dismemberment of campaign finance regulation.

"A Massive New Threat of Corruption and Corporate Control": With Citizens United, the Supreme court has given corporations the same free speech rights as individuals and allowed unlimited election spending by corporations when not coordinated with candidates.

U.S. Senator Sheldon Whitehouse of Rhode Island said recently,

The Citizens United decision -- yet another 5-4 decision [opens] our democratic system to a massive new threat of corruption and corporate control. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

To emphasize its hostility to restrictions on the power of the wealthy over our elections, the Supreme Court ordered a freeze of Arizona's public financing matching funds system which gives candidates participating in public financing additional funds when opponents spend above benchmarked levels of spending. This means that publicly-financed candidates will be eligible to receive only one-third of the money to which they'd otherwise be entitled.

Letting Corporate Arbitrators Decide if Their Own Decisions are Unfair: In Rent-A-Center, West v. Jackson, the Supreme Court - by the same pro-corporate 5-4 vote lineup of Justices - further closed the courthouse door for individuals abused by their employers. The Court held that employees cannot only be forced to have complaints about racial discrimination or other employer abuses decided by private arbitrators (a reality decided in previous terms), but also that where an employee feels the terms of the arbitration agreement are unfair and unconscionable, it is up to the corporate-chosen arbitrator to decide if the arbitration agreement is unfair. In this case, for example, the arbitration agreement limited claims an employee might bring against the employer, while exempting those claims that Rent-a-Center might raise, and restricted an employee’s ability to gather evidence.

Instead of allowing a judge to decide whether the agreement to arbitrate could be enforced, the Supreme Court majority leaves it to the arbitrator chosen by the agreement alleged to be unfair to decide the issue, cutting off access to the courts even for the most basic threshold issue of whether these arbitrators and the rules imposed are a fair substitute for a day in court.

Privatizing Democracy: So just as corporations now have unlimited rein to use their money without regulation to dominate elections, those same corporations now have de facto have authority to run private courts to decide the legal rights of their own employees without little or no judicial restraint.

Supreme Court’s Deferral to State Authority

However, beyond these pro-corporate decisions, the Supreme Court, often with surprising configurations of majorities, continued its trend in recent years of deferral to state authority in more cases where core corporate interests are not at stake.

States and the Second Amendment: The exception to the trend this year was McDonald v. City of Chicago, which extended the Second Amendment to restrict state gun regulations. But even in that case, the majority went out of its way to affirm that many traditional gun control regulations will still be upheld even where an individual right to keep firearms for self-defense in the home is protected. Since most states have their own constitutional and statutory reasonableness test for gun regulations, the practical effects of McDonald may end up being relatively limited.

Rejecting “Takings” Doctrine: While right-wing constitutional lawyers for years hoped to create a majority to limit most local government land regulations as illegal “takings” under the Constitution, the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection not only rejected a property rights challenge to a state beach-erosion statute, but Justice Anthony Kennedy refused to even give a fifth vote to the proposition that a court ruling could ever constitute a “taking” of private property, a sign that most reasonable land use regulations will be protected from federal judicial second-guessing in the future.

Universities and Groups Excluding Gay Students: In Christian Legal Society v. Martinez, state universities retained their authority to deny funding to student groups that exclude certain students, such as gay and lesbian students, from membership. The Court upheld the University of California-Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction.

Public Disclosure of Ballot Initiative Signers: Given increasing use of fraud by those promoting right-wing ballot initiatives, progressives won an important victory in Doe v. Reed, in which the Court held that disclosure of signers of political ballot initiatives did not generally violate the First Amendment (although they might be able to in the future argue that specific harms could lead to some restriction on disclosure in a future case). In a strong argument for respecting state regulation of ballot initiatives, Justices Sotomayor, Stevens and Ginsburg wrote:

These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).

Reviewing Public Employee Text Messages: In a slightly idiosyncratic case, the Court in City of Ontario v. Quon unanimously held that a police department’s decision to review the text messages of employees who exceeded the monthly limit on their office pagers in order to determine whether the monthly limit should be raised was reasonable under the Fourth Amendment.

Criminal Justice

Criminal justice decisions by the Supreme Court invariably combine a combination of invocation of individual rights, discussions of state authority and obscure procedural explorations. While cases this term had few singular disruptions of previous principles, they had a number of clear incremental changes effecting state criminal proceedings. (See this ACLU writeup for an extended list of additional cases).

State Convictions and Immigration: Of import for current debates on the role of states in immigration policy, the court ruled in two cases that courts had to carefully weigh how state criminal statutes interact with federal deportation rules:

In Padilla v. Kentucky, the Court held that attorneys have an obligation to carefully advise their clients of the immigration consequences of pleading guilty. In this case, the defendant– a lawful permanent resident for 40 years who pled guilty to drug trafficking – was incorrectly advised by his lawyer that he was unlikely to face deportation because of his long stay in the United States.
In Carchuri-Rosendo v. Holder, a unanimous Court ruled that defendant’s conviction for possession of a single Xanax tablet without prescription, following an earlier state court conviction for possession of less than two ounces of marijuana, could not qualify as an aggravated felony under federal immigration law, and thus did not render the petitioner ineligible for potential discretionary relief from deportation.

Restricting Miranda: The Court significantly limited restrictions the Miranda “right to remain silent” in a series of cases limiting the Miranda ruling:

In the most critical case, in Berghuis, Warden v . Thompkins, a 5-4 decision of the Supreme Court affirmed that a suspect did not properly invoke his right to remain silent, so statements were properly admitted in court. Justice Sotomayor, writing for four dissenters said, “the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda’s goal.”
In Florida v. Powell, the Court held that police warnings that a suspect had a right “to talk to a lawyer before answering any questions” adequately complied with Miranda, since the right does not require a particular set of words for police compliance.
In a 6-3 Graham v. Florida decision authored by Justice Kennedy, the Supreme Court found a Florida law unconstitutional under the Cruel and Unusual Punishments Clause where juvenile offenders could be sentenced to life in prison without parole for a non-murder.
In Maryland v. Shatzer, the Court held that police did not violate the law by collecting incriminating statements from a person who had invoked his Miranda rights two and a half years earlier, and that the right against interrogation lasts only 14 days after invocation.

In other key decisions effecting state proceedings:

In Bobby v. Van Hook, Wong v. Belmontes and Porter v. McCollum, the court created a series of new standards for when counsel is so ineffective as to warrant a new trial.
In Presley v. Georgia, the Court concluded that a defendant’s Sixth Amendment right to a public trial had been violated when the public was excluded from the jury voir dire proceedings.
In Holland v. Florida, a 7-2 decision authored by Justice Breyer, the Court agreed that an attorney could harm his client so badly that the defendant’s time to seek habeas must be extended.

Conclusion

Elana Kagan’s likely replacement of Justice Stevens on the Court is unlikely to change the broader trends on the Court and states will continue to face the challenge of reining in the corporate election spending unleashed by Citizens United and protecting access to justice in the courts eroded by the Rent-a-Center case. As People for the American Way wrote in a recent report, Rise of the Corporate Court: How the Supreme Court is Putting Businesses First, “the conservative-tilting Court has reached out to enshrine and elevate the power of business corporations.”

While deferral to state authority has emerged as an increasing consensus among the Justices on a number of issues, lurking in the dissents of the most conservative Justices are even more extreme pro-corporate and right-wing views that with one more ally could push legal doctrine in ways that would completely erode democratic decision-making over economic and social policy. So even the more positive trends on the Court warrant only partial relief, since small changes in personnel in the future could readily enable the more activist impulses of the block of the four most right-wing members of the Court.

Resources:
Progressive States Network - The Supreme Court and the States 2008-2009: Trend Defending State Authority Emerges this Term
Scotusblog - Everything you read about the Supreme Court is wrong
ACLU - ACLU Summary of the 2009 Supreme Court Term
People for the American Way - Rise of the Corporate Court: How the Supreme Court is Putting Businesses First
Alliance for Justice - The Corporate Court

New Jersey Voters Reject Privatization

Altaf Rahamatulla — Thu, 24 Jun 2010 13:11:14 -0400

On June 15, voters in Trenton, New Jersey, soundly rejected a proposal to sell a majority of Trenton Water Works' infrastructure, including pipes, water towers, and tanks, to a private company. For several years, Trenton Mayor Douglas Palmer argued that water privatization would generate immediate revenue for the cash-strapped city and end its obligation to maintain aging infrastructure in surrounding townships. Community activists, unions, and the Stop the Sale campaign, successfully challenged the Mayor's plan. In the weeks leading up to the vote, polling indicated that 95 percent of city residents disapproved of the initiative.

Opponents of the sale found that selling the city's "most valuable asset" to a private corporation would have resulted in an approximate loss of $25 million annually, a cumulative decline of $400 million in revenue over the next 20 years, an inevitable increase in local taxes, and higher water rates.

History of Consumer Losses in Other Cities: Though water privatization is not as common as other contracted services, there are several problems associated with the effort. For example, following a $38 million fine for pollution resulting from inadequate maintenance of the city's sewer and water systems, the Atlanta City Council signed a 20-year, $428 million contract with the private firm, United Water. The deal led to massive layoffs, a 12 percent rise in sewer bill rates, incidence of slow repairs, and substantial revenue loss due to poor water metering. The City Council voted to rescind the contract in 2002, a move that saved Atlanta millions of dollars per year.

NJ Gov. Christie Pushing Privatization: Even in light of overwhelming public opposition to privatization and the significant pitfalls of these actions, New Jersey Gov. Chris Christie established a privatization panel by executive order in early April, seeking to identify $50 million in savings. As part of this initiative, the Governor has proposed privatizing functions of the New Jersey Network (NJN), the only non-partisan public television and radio news source that exclusively covers the state. Not only would privatization threaten news coverage in the state, but it would also risk the loss of state assets, such as broadcast licenses, towers, studios, and media equipment.

Several organizations are working diligently to protect the state's assets and resist privatization, including the Communication Workers of America (CWA), AFL-CIO, and Free Press. Progressive lawmakers are intent on restoring funding to the network and pushing back against the effort to privatize. Asm. John Wisniewski introduced A 2949, which establishes the New Jersey Public Media Corporation, allowing NJN to operate as a state agency with more autonomy in the areas of hiring, procurement of equipment, leasing of assets, and labor relations. As Progressive States Network has previously detailed, legislative action to limit privatization is necessary to safeguard against the loss of accountability and public revenue that these misguided schemes often produce.

Resources:
AFL-CIO - Trenton Voters Say 'No' To Private to Water
Blue Jersey - Can NJN and NJ News Survive Twin Threats?
Communication Workers of America - NJN Budget,Privatization, Assets, News, and Alternative Structure
Progressive States Network - Critics Resisting New Jersey Governor's Push for Further Privatization
Progressive States Network - State House Reporting and Public Broadcasting on the Chopping Block
The Star Ledger - Trenton Water Works to Settle Divisive Issue
Stop the Sale - The Facts about the Water Deal

Debating Federalism: Conservative False History and Hypocrisy vs. Progressive Collaborative Federalism

Nathan Newman — Tue, 15 Jun 2010 11:57:36 -0400

Conservative state leaders have promoted legislation in states across the country claiming that the health care reform law is an unconstitutional overreach of federal power. While just a handful of the bills were enacted (and most were roundly rejected in states where they were introduced), these attacks on the federal health law are the most prominent example of increasing right-wing legislative agitation declaring various federal laws and actions a violation of the constitution.

Right-Wing “States Rights” Bills: Alaska, Arizona, Idaho, Montana, South Dakota, Tennessee and Wyoming have declared that federal firearm regulations don’t apply to weapons manufactured in those states. Utah has rejected not only the federal health care reform bill, but declared federal lands subject to state eminent domain and asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.” Alabama, Alaska and Wyoming have joined Utah in passing resolutions generally denouncing the supposed violations of their state sovereignty. And right-wing legislators have introduced bills to institute a “constitutional tender” requiring a gold standard for money in their states, declaring federal cap-and-trade proposals unconstitutional, making it a state crime for federal agents to arrest anyone in a state without permission from a county sheriff, and more generally nullifying claims by the federal government to regulate most interstate commerce.

Challenging the Right-Wing Constitutional Narrative: The challenge for progressives from this “states rights” movement is not that any of these laws are likely to survive in court, but that conservatives too often get away with claiming to stand for constitutional values without significant challenge from progressives. The reality is that the right wing has no credibility in promoting their states’ rights arguments and should be challenged more directly. As this Dispatch will outline, their arguments fail on multiple grounds:

First, conservative constitutional history is dead wrong. The progressive vision of collaborative federalism between federal and state governments clearly reflects the “original intent” of the Constitution’s creators – including those who promoted the Constitutional Amendments enacted throughout our history.
Second, conservative leaders are constitutional hypocrites, talking about “states rights” even as they support federal laws that restrict state authority in order to protect corporate special interests.
Finally, unlike conservatives, progressives practice real respect for state authority by promoting and supporting state innovation and flexibility, a far more compelling practice of federalism than the rigid and false constitutional doctrine promoted by the right wing.

Progressive legislative leaders need to clearly engage the public and promote our story of a Constitution that was meant to promote a vigorous federal power in promoting equal rights and the general welfare, even as federal leaders should respect and strengthen the capacity of states to take action beyond minimum standards set by the federal government.

Resources
Tenth Amendment Center - Tenth Amendment Movement
The New York Times - States’ Rights Is Rallying Cry for Lawmakers

Table of Contents:

- Conservatives Have Constitutional History Wrong

- Conservatives are Hypocrites in Using Federal Power to Undermine State Authority

- Progressives Promote a Collaborative Federalism that Respects State Authority

- Highlighting the Progressive Model of Collaborative Federalism

Conservatives Have Constitutional History Wrong

Conservative activists try to sell a history of a federal government designed to be weak with limited power, where national leaders without sanction by the American people have taken on responsibilities and powers reserved to state governments. Such a story just flatly misrepresents constitutional history.

The 1787 Constitution Promoted Strong Federal Power: Even when the Constitution and the initial Amendments were drafted in the 18^th century, limited federal power was not what was envisioned by those who drafted. It was George Washington who deployed troops in Pennsylvania to collect excise taxes on distilleries in the suppression of the so-called Whiskey Rebellion of 1794, John Adams who enacted the 1798 Alien and Sedition Acts to regulate newspapers across the country, and Thomas Jefferson who negotiated the Louisiana Purchase and carved out new states. And, as the Supreme Court Justices appointed by those founding drafters of the Constitution said in 1819 in their McCullough v. Maryland decision, affirming the wide authority of the federal government:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

In fact, the progressive complaint of the period before the Civil War was that federal power was vigorously deployed but for the wrong ends. The federal government and courts intervened to overturn state debt relief laws meant to benefit small farmers and other debtors and generally attacked other state laws seen as infringing property rights.

And most obviously, federal government power was used to protect slave owner interests, including overturning state laws in the North seen as impeding the return of runaway slaves. State laws requiring a fair hearing to establish a former slave status before federal agents could return a free black to the South under the Fugitive Slave Act were struck down by federal courts. The Dred Scott case outraged Northern voters because it declared that Southern slaveholders could bring slaves into free territories and ignore the laws freeing slaves voluntarily brought into those jurisdictions.

The Civil War and the New Birth of Freedom Expanding Federal Authority: Where the present-day Tenth Amendment proponents fail history utterly is in systematically denying that the Civil War and the subsequent Amendments enacted ushered in a new Constitutional order in regard to federalism. (The following history is drawn partly from the Brennan Center for Justice’s A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments).

The immediate post-Civil War amendments – the 13^th, 14^th and 15^th - created a new constitutional mandate of not only freedom and voting rights for freed slaves, but more broadly gave Congress the “power to enforce, by appropriate legislation” (Section 5 of the 14^th Amendment) the protection of the “privileges or immunities” of Americans overall and to protect them from state abuses denying them “life, liberty or property.”

The “founding fathers” of this new post-Civil War constitutional order would back up these Amendments with federal laws of wide scope, including the Civil Rights Acts prohibiting both public and private discrimination and a federal Freedmen’s Bureau that would operate schools, provide health care, and directly operate other programs in states throughout the South.

Senator John Sherman of Ohio, the brother of General Sherman, summarized the expansive “original intent” of those who drafted the post-Civil War Amendments: “[it] secures to every man within the United States liberty is its broadest terms," with all the enforcement power for Congress needed to make that liberty a reality. While federal courts would back off from the expansive meaning in the wake of the Klan-related violence that ended Reconstruction, modern federal laws supporting health care and education provide exactly the same liberty for the American people that those who enacted the Freedmen’s Bureau’s education and health care programs saw as necessary for liberty in the wake of the Civil War.

Enhanced Federal Authority under the Sixteenth and Seventeen Amendments: Nearly fifty years after the Civil War Amendments, the Progressive era would see new demands for wealth redistribution and stronger federal regulation of corporate power. These populist demands would be embodied in the passage of the Sixteenth Amendment establishing the income tax and the Seventeenth Amendment allowing direct election of U.S. Senators, which would each further these goals and restructure federalism.

A federal income tax was recognized as more than a revenue source; by deciding who was taxed and who was not, it would be a tool of regulation by the federal government of the economy as well. As conservative Seventh Circuit Judge Frank Easterbrook said at a Federalist Society event in 2006, bemoaning this change:

The Sixteenth Amendment gave the federal government the power to control one hundred per cent of the entire economy. It can tax income. It can not tax income - achieving its goals via tax expenditures, that is - by encouraging those things that aren't taxed. It can tax and then subsidize using the dollars that it's just collected from you, or it can grant the dollars back on condition. So that combination of powers… gives the federal government control over almost anything it chooses to control.

If the Sixteenth Amendment changed the budgetary nature of federalism in favor of federal authority over economic activity, the Seventeenth Amendment, which required the direct election of U.S. Senators, changed the political nature of federalism. Structurally, “states rights” had their strongest embodiment in the original Constitutional clause that allowed state legislatures to control the election of Senators, meaning that those Senators would beholden to the institutional interests of state governments.

The direct election of U.S. Senators, joining the direct election of Congressional Representatives, meant that the federal government was now responsible directly to the individual voter and only to the individual voter. In The Seventeenth Amendment and the Death of Federalism, Professor Ralph A. Rossum notes, again unhappily from his conservative viewpoint, that "the original federal design has been amended out of existence and is no longer controlling—in the post-Seventeenth Amendment era, it is no more a part of the Constitution [than] the Constitution’s original fugitive slave clause."

While conservative courts would resist this progressive constitutional revolution for two more decades the New Deal courts would finally establish the broad principle that popular power expressed at the federal level would trump corporate interests.

Contradictions in “States Rights” Rhetoric: The fundamental contradiction in conservative constitutional arguments over federalism is that, even as some activists try to ignore every Amendment after the Tenth to sustain their attacks on federal authority, many other conservative activists, including many in the Tea Party movement, are agitating to repeal the Sixteen and Seventeen Amendments precisely because they admit those later Amendments have eliminated the original limits on federal authority. And this regret about the passage of the 17^th Amendment extends even to conservatives on the Supreme Court; in a speech reported in the Harvard Crimson in 2004, Supreme Court Justice Antonin Scalia said that the 17^th Amendment was “a bad idea.” Ultimately, conservatives can’t claim the enduring importance of the Tenth Amendment while denouncing the later constitutional amendments that superseded it.

Resources
Brennan Center for Justice - A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments
Professor Ralph A. Rossum - The Seventeenth Amendment and the Death of Federalism
Federalist Society - Are Constitutional Changes Necessary to Limit Government?

Conservatives are Hypocrites in Using Federal Power to Undermine State Authority

Beyond the false history and contradictions involved in conservative constitutional rhetoric, the reality is that conservatives in history and today have never respected state authority when it is marshaled on behalf of progressive policies. In fact, despite conservative constitutional history mythology, right-wing legal decisions preceding the New Deal were incredibly hostile to state authority, striking down a series of state laws from the minimum wage to railroad regulations in the name of federal supremacy, preempting any state law that came close to any area of presumed federal authority (whether Congress had created a law in that area or not), and more generally circumscribing state authority under a doctrine called "substantive due process."

Right-Wing Legislative Assault on State Authority: In the present, nothing illustrates the hypocrisy of the conservative movement on federalism more than the current debate on cracking down on abuses by the financial industry. Early in this past decade, state predatory lending laws which sought to limit abuses by subprime lenders were shut down by the Bush Administration using the club of federal power, yet conservative groups largely supported that wildly destructive attack on state authority. And when progressive federal leaders sought to restore greater authority to state legislatures and attorneys general to target abuses in their states by national banks, conservative elected leaders and organizations lined up to support amendments to undermine that increased state authority over local financial abuses.

As we have described in the past, this is just part of a multi-decade fight by the conservative movement to undermine state authority to act on behalf of workers, consumers, civil rights and environmental protection. In fact, the conservative majority in Congress voted over 57 times between 2001 and 2006 to preempt state laws, including action to preempt state limits on air pollution, to preempt state regulation of contaminated food, and to block tougher state regulation of Internet "spam."

The Conservative Legal Assault on State Authority: With pro-corporate appointments to the courts by conservative Presidents, courts not only upheld the preemption of local predatory lending laws, but supported the overturning of pro-union state laws, radically reduced punitive damages against Exxon-Mobil approved under state law, and exempted medical device manufacturers from liability under state laws if the FDA approved the device.

And this hypocrisy on federalism extends to groups supposedly speaking on behalf of state interests, including the American Legislative Exchange Council (ALEC). In multiple legal briefs, ALEC has called for using federal law and the federal Constitution to overturn state laws - from striking down Chicago gun regulations to forcing Michigan to allow mail-order wine sellers to sell to their residents from out-of-state to overturning a Massachusetts state law that prohibited state agencies from doing business in Burma.

Conservative Health Care Proposals Highlight Hypocrisy: Nothing highlights this conservative hypocrisy on state authority more than the health care debate. Even as the right-wing denounces the recent federal health reform law as violating state authority, the main planks in conservative health proposals proposed by Congressional leaders have been far clearer attacks on state authority.

When conservative leaders controlled the U.S. House of Representatives, they repeatedly approved bills allowing insurance companies to sell across state lines and ignore local state consumer protections. “These plans will undermine state insurance reform efforts designed to spread costs broadly,” noted Ami Gadhia from Consumers Union, publisher of Consumer Reports, at the time.

Similarly, the other most touted reform proposed by conservative leaders has been to override state medical malpractice laws through "tort reform" where patients would lose legal rights they previously had under individual state law. When President Bush was touting “medical malpractice reform,” the National Conference of State Legislatures emphasized its opposition to “any federal preemption of state authority within the civil justice and tort law areas” and the “voiding of state authority and the hard work of so many state legislatures.”

Resources
Progressive States Network - The Predatory Lending Bubble and How the Feds Made it Worse
Progressive States Network - The Assault on the New Deal Preemption Standard
Progressive States Network - Hypocrisy of "State Rights" Conservatives on Health Care
U.S. House Oversight and Government Reform Committee - Congressional Preemption of State Laws and Regulations
Open Salon- What the Right Won't Admit About Tort Reform

Progressives Promote a Collaborative Federalism that Respects State Authority

Progressives should proudly contrast their far more consistent respect for state authority. While progressives support strong minimum federal standards of protection for individuals and communities, they also far more consistently protect state authority and strengthen state capacity to take action to meet local needs and goals beyond those minimal standards.

The New Deal and The Great Society Strengthened Regulatory and Budgetary Capacity of States: The New Deal may have strengthened federal action, but it also specifically empowered states to act in areas like the minimum wage and child labor, which previously had been blocked by federal courts, and the New Deal Supreme Court was far more willing to allow states to regulate in areas where the federal government was also taking action.

As we have detailed, progressives have always made strengthening the budgetary capacity of states to act on local problems more effectively a priority. Under the Great Society, for example, grant-in-aid programs from DC to the states increased 68% in real dollars between 1964 and 1968. Notably, the federal recovery act promoted by President Obama last year directed most of its dollars not through direct federal programs but through the states where local leaders would have the flexibility to use those dollars to address state budget and job development needs.

Obama Administration Strengthened State Authority: On the regulatory front, the Obama administration last year emphasized its new commitment to respecting state regulatory rules by issuing a broad Memorandum on Preemption to all heads of executive departments and agencies, ordering them to avoid the preemption language routinely included in Bush-era regulatory preamble statements or in codified regulations unless there is "full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption." This commitment to respecting state authority was embodied in the administration’s recognizing the authority of California and thirteen other states and the District of Columbia to take action on “clean car” regulations – state action blocked by the previous administration – and incorporating those state standards into its own plan for tighter auto emission and gas mileage standards.

New Federal Health Care Law Embodies Collaborative Federalism: As an example of progressive federalism, even as the new federal law provides for stronger minimum standards for health care, it was designed to give great flexibility to states on how implementation would work in each state and was designed to strengthen the capacity of states to address specific local needs.

As the National Academy for State Health Policy describes, “States will have a significant role in the implementation of federal health reform.” This includes flexibility in how to design the health exchanges where consumers will purchase insurance, full preservation of state authority to establish stronger consumer protections than any federal standards, and even the ability to opt-out of the whole federal system where states can demonstrate a plan to achieve the goals of broader coverage more effectively. This latter option, described in the bill's Sec. 1332, makes it possible for states to combine all available subsidies that would normally flow to individuals and businesses into an alternative state system.

Resources
Progressive States Network - Restoring State Authority: An Agenda to Restrict Preemption of State Laws
Progressive States Network - Obama Affirms Importance of State Policy Innovation by Making California Emissions Rules a National Standard
David Walker - The Rebirth of Federalism
The White House - Memorandum on Preemption
National Academy for State Health Policy - Supporting State Policymakers' Implementation of Federal Health Reform

Highlighting the Progressive Model of Collaborative Federalism

What this history emphasizes is that progressives need to more aggressively challenge conservative posturing that they are the defenders of federalism. Progressives can highlight not only that conservatives promote a false history to justify their attacks on health care and other legislation, but they also practice a deep hypocrisy in failing to respect the state authority when they themselves control the levers of federal power.

Progressives should more clearly highlight the principles of collaborative federalism that have been embodied in progressive practice since the New Deal:

respect state regulatory authority to take action beyond minimum federal standards;
provide federal funding to strengthen state capacity, and;
design federal programs to allow flexibility in state implementation to meet local needs.

Ultimately, the American debate over federalism was never supposed to be about “states rights” – as if the rights of one specific government body over another was some sacred principle – but rather about how best to embody the will of American voters to address national goals while preserving the flexibility and liberty to meet specific local needs within that national framework.

The rigid legalistic federalism promoted by the right is wrong not only on historical grounds, but also because it fails to provide a practical framework for addressing the creative tension between national goals and local needs. Instead, the progressive model of collaborative federalism continues to be the only framework to address that tension and which reflects the rich tradition of constitutional reform that has brought this nation from its founding through the Civil War to the New Deal and into the present day.

Maine Voters Reject Tax Reform Initiative, but Approve Infrastructure Investment

Altaf Rahamatulla — Thu, 10 Jun 2010 16:58:23 -0400

This past Tuesday, Maine votersconsidered legislation which would have reformed the state's tax structure and bond measures that will bolster infrastructure investment.By a large margin, Mainers rejected a law passed last June, LD1495, to lower the top income tax rate from 8.5 percent to 6.5 percent for state residents earning less than $250,000 annually by broadening the sales tax to include different services and shifting tax burden to nonresidents by increasing the meals and lodging tax from 7 to 8.5 percent.

Supporters of the reform initiative, most notably, Maine AFL-CIO, some regional Chambers of Commerce, the Maine Council of Churches, and the MaineCenter for Economic Policy Institute (MECEP), contended that itrepresented the most substantial reform of the state's tax code in almost four decades. Overall, MECEP found that the "modestly...progressive" package would have provided "direct help for families struggling to survive in this troubling economic climate, and it is money that will stay in the local and state economies and buoy Maine small businesses." Opponents, including conservative groups, the state's Realty Association, and businesses tied to the tourism industry,who argued against shifting some of the state's tax burden to tourists and expanding the sales tax base to include different categories of services, gatheredthe necessary signatures to place the issue up for referendum as Question 1.

While the legislation would have reduced the income tax burden for 95 percent of Maine families and made it easier to apply and receive property tax relief through the state's circuit breaker program, advocates believe the campaign to support reform faltered due to the complexity of the message. While many voters readily saw expanding the sales tax base to services as a tax increase, they were skeptical that the state would deliver on lowering the income tax burden. Sen. Joe Perry, one of the authors of the legislation, reflected on the results, "I never thought I'd seethe public vote to raise their own taxes."

The ballot defeat additionallyindicates that while the current sales tax in most states is outdated and designed for an industrial economy in which most consumer spending went to buying goods, expanding the sales tax to services is still a challenging message to articulate to voters.

Although Mainers rejected changes to the state's tax structure, voters made clear that they support spending for long-term investments to spur economic development by approving bond measures for "$26.5 million for an offshore wind energy demonstration site, related manufacturing and campus energy conservation; $47.8 million for highways, railroads and marine facilities; and $10.25 million for clean water projects."