Category Archives: Laws/Legislation

Copy, Paste, Legislate

Source: Center for Public Integrity, 2019

How special interest groups achieve their goals by enlisting friendly lawmakers to quietly push ‘model legislation’ in statehouses nationwide.

Articles include:
They copied bills from corporations. These lawmakers say that’s OK.
Source: Matt Wynn, James Sergent, Aamer Madhani, Center for Public Integrity, July 18, 2019

Legislators agreed to carry copycat bills handed to them by companies, lobbyists and special interests seeking to write states’ laws in bulk.

The network behind state bills ‘countering’ Sharia law and terrorism
Source: Center for Public Integrity, July 18, 2019

For anti-abortion activists, success of ‘heartbeat’ bills was 10 years in the making
Source: Center for Public Integrity, June 20, 2019

Women’s rights fighters take a page from the anti-abortion playbook
Source: Center for Public Integrity, June 20, 2019

Adoption centers: the latest battleground for religious freedom
Source: Center for Public Integrity, June 10, 2019

Related:
Copy, Paste, Legislate: You elected them to write new laws. They’re letting corporations do it instead.
An investigation by USA TODAY, The Arizona Republic and the Center for Public Integrity
Soure: Rob O’Dell, and Nick Penzenstadler, USA TODAY, June 19, 2019

….USA TODAY and the Republic found at least 10,000 bills almost entirely copied from model legislation were introduced nationwide in the past eight years, and more than 2,100 of those bills were signed into law. The investigation examined nearly 1 million bills in all 50 states and Congress using a computer algorithm developed to detect similarities in language. That search – powered by the equivalent of 150 computers that ran nonstop for months – compared known model legislation with bills introduced by lawmakers. The phenomenon of copycat legislation is far larger. In a separate analysis, the Center for Public Integrity identified tens of thousands of bills with identical phrases, then traced the origins of that language in dozens of those bills across the country…..

• Models are drafted with deceptive titles and descriptions to disguise their true intent. The Asbestos Transparency Act didn’t help people exposed to asbestos. It was written by corporations who wanted to make it harder for victims to recoup money. The “HOPE Act,” introduced in nine states, was written by a conservative advocacy group to make it more difficult for people to get food stamps.

• Special interests sometimes work to create the illusion of expert endorsements, public consensus or grassroots support. One man testified as an expert in 13 states to support a bill that makes it more difficult to sue for asbestos exposure. In several states, lawmakers weren’t told that he was a member of the organization that wrote the model legislation on behalf of the asbestos industry, the American Legislative Exchange Council.

• Bills copied from model legislation have been used to override the will of local voters and their elected leaders. Cities and counties have raised their minimum wage, banned plastic bags and destroyed seized guns, only to have industry groups that oppose such measures make them illegal with model bills passed in state legislatures. Among them: Airbnb has supported the conservative Arizona-based Goldwater Institute, which pushed model bills to strike down local laws limiting short-term rentals in residential neighborhoods in four states.

• Industry groups have had extraordinary success pushing copycat bills that benefit themselves. More than 4,000 such measures were introduced during the period analyzed by USA TODAY/Arizona Republic. One that passed in Wisconsin limited pain-and-suffering compensation for injured nursing-home residents, restricting payouts to lost wages, which the elderly residents don’t have…..

Why the Right Hates Voting Rights: An Interview With Ari Berman

Source: Luke Savage, Jacobin, September 6, 2019

Conservatives in the United States know they can’t win on a level playing field — so they’ve started rigging the electoral rules in their favor, democracy be damned.

When the Republican Party recaptured the House in the 2010 midterm elections, it marked not only the end of a relatively brief period of Democratic control but also the beginning of a wider offensive against voting rights that has been underway ever since. By capturing key statehouses in 2010 and in the years that followed, Republicans have been increasingly able to tilt the electoral process in their favor — a strategy that has profoundly affected the results of recent elections and was one of the major backdrops to Donald Trump’s surprise Electoral College victory in 2016.

Jacobin’s Luke Savage sat down with Mother Jones senior reporter Ari Berman to discuss the history of gerrymandering and voter suppression — and the considerable impact both continue to have on the course of US politics.

Will Nondisclosure Agreements Become A Relic Of The Past?

Source: Maureen Minehan, Employment Alert, Volume 36, Issue 18, September 4, 2019
(subscription required)

An employee alleges her manager sexually harassed her for months. She quits and files a lawsuit alleging sex discrimination. After a series of negotiations, she agrees to settle the charges for $100,000 and a positive reference. In exchange, your company wants her to sign a nondisclosure and non-disparagement agreement to protect you from bad publicity. You know some states have outlawed this practice in the wake of the #MeToo movement. Is it still legal?

A Constitutional Standard to End Gerrymandering

Source: Alton Frye, PA Times, Vol. 5 no. 1, Spring 2019
(subscription required)

To cure the corruption of gerrymandering, take the profit out of it. The Constitution provides the standard for doing so by specifiying that representatives are to be chosen “by the People of the several States.” That provision followed debate in the convention of 1787 that, according to James Madison’s notes, explicitly rejected the option of empowering state legislatures to choose members of the federal house of representatives. In practice, by asserting authority to draw congressional district lines on a partisan basis, state legislatures have usurped the power vested by the Constitution in the people of the states.

Analysis demonstrates that allocating seats in the House according to the statewide vote of the people would produce a national legislature comparable in partisan balance to the current House, but with much greater equity among the parties at the state level. Applying that constitutional mechanism would rob parties of the advantage sought from gerrymandering and create incentives for the fair redistricting procedures that courts and citizens have long sought. This study illustrates the outcomes that would result, increasing competitiveness in 39 states…..

Employee Benefits—Proposed Regulations Provide Employers with More Flexibility in Offering HRAs to Employees

Source: Mark E. Bokert and Alan Hahn, Employee Relations Law Journal, Vol. 45, No. 1, Summer 2019
(subscription required)

From the abstract:
The Departments of Treasury, Labor, and Health and Human Services jointly issued proposed regulations (the “Proposed Regulations”) providing employers with greater flexibility in offering health reimbursement arrangements (“HRAs”) to employees. Importantly, if the Proposed Regulations are finalized in substantially its current form, employers would be able to offer employees an HRA that “integrates with” individual health insurance coverage. As a result, these Proposed Regulations, in essence, would enable employers to offer HRAs in lieu of a traditional group health plan to their employees. Additionally, the Proposed Regulations set forth conditions under which an HRA can be recognized as a limited excepted benefit HRA, which provides employers with another vehicle to provide employee benefits to their employees.

The Proposed Regulations are set to take effect for plan years beginning on and after January 1, 2020, although this is dependent on the regulations being finalized. The deadline for submitting comments on the Proposed Regulations was December 28, 2018.

The Courts Won’t End Gerrymandering. Eric Holder Has a Plan to Fix It Without Them.

Source: Ari Berman, Mother Jones, July/August 2019

While Democrats are fixated on 2020, Holder is fighting for fairer maps in 2021 and beyond. ….

….So Holder is pursuing a new strategy, trying to elect down-ballot candidates who can deliver fairer maps and voting laws. The NDRC invested $350,000 in the Wisconsin Supreme Court race, hoping that a liberal majority on the seven-­member court might strike down any egregious gerrymanders in the next round of redistricting in 2021. “I don’t think that 10 years or so ago, you would have a former attorney general campaigning for a state Supreme Court justice,” Holder told me. “This is a recognition on the part of the Democratic Party, on the part of progressives, that we need to focus on state and local elections to a much greater degree than we have in the past.”

But if Democrats are belatedly recognizing this need, few besides Holder are acting on it. He is playing a long game in a party driven by instant gratification and consumed by the mess in the White House. While the party’s presidential contenders are attracting big crowds, donors, and volunteers determined to defeat President Donald Trump in 2020, Holder is focused on 2021…..

Unlocking Access

Source: Bennett G. Boggs and Lesley Kennedy, State Legislatures, May/June 2019

Free tuition programs are opening doors for some students—but are they making the grade?

….“Free college” has caught the attention of many. Seventeen states and more than 350 localities in 44 states have enacted free college policies, and 23 states considered or are still debating legislation this year…..

The Politics of Rulemaking in the United States

Source: Susan Webb Yackee, Annual Review of Political Science, Vol. 22, 2019
(subscription required)

From the abstract:
Rulemaking is a critical part of American government and governance. This article reviews the political underpinnings of modern rulemaking. Specifically, it highlights the process and impact of agency regulations, as well as the key tools used by the legislature, elected executive, and courts to oversee the rulemaking process. The article also reviews who participates in the rulemaking process, as well as who influences regulatory content. Finally, new directions in regulatory policymaking are explored, including data collection advancements, as well as the potential role for guidance documents as replacements for more traditionally issued notice and comment regulations.

Unlocking Access to Health Care: A Federalist Approach to Reforming Occupational Licensing

Source: Gabriel Scheffler, Health Matrix: Journal of Law-Medicine, Vol. 29, No. 1, 2019

From the abstract:
Several features of the existing occupational licensing system impede access to health care without providing appreciable protections for patients. Licensing restrictions prevent health care providers from offering services to the full extent of their competency, obstruct the adoption of telehealth, and deter foreign-trained providers from practicing in the United States. Scholars and policymakers have proposed a number of reforms to this system over the years, but these proposals have had a limited impact for political and institutional reasons.

Still, there are grounds for optimism. In recent years, the federal government has taken a range of initial steps to reform licensing requirements for health care providers, and these steps have the potential to improve access to health care. Together, they illustrate a federalist approach to licensing reform, in which the federal government encourages the states to reform their licensing regimes, while largely preserving states’ control over the system. These steps include: (1) easing federal licensing restrictions for health care providers in certain areas where the federal government possesses regulatory authority; (2) creating incentives for states and professional bodies to experiment with reforms; (3) intensifying the Federal Trade Commission’s focus on licensing boards’ anti-competitive conduct; and (4) generating additional pressure for state-level reforms through expanding health insurance and promoting delivery system reforms under the Affordable Care Act.

This article argues that a federalist approach represents the most promising path toward reforming occupational licensing in health care. Federal intervention in licensing is necessary, due to states’ lack of incentives to experiment with licensing reforms, the externalities of their licensing regimes, and their inability to resolve their own collective action problems. Nevertheless, large-scale federal preemption of state licensing laws is unlikely, due to a combination of interest group politics, Congress’s tendency toward incrementalism, and its reliance on the states to administer federal policies. A federalist approach also has functional advantages over outright federal preemption: it allows for more experimentation in constructing new licensing regimes, and it enables the federal government to take advantage of states’ institutional expertise in regulating occupations. Finally, this approach presents a model for how the federal government can play a constructive role in occupational licensing in other fields besides health care, and in other areas of state regulatory policy.

Historical Mismatch Between Home-Based Care Policies And Laws Governing Home Care Workers

Source: Lisa I. Iezzoni, Naomi Gallopyn, and Kezia Scales, Health Affairs, Vol. 38, No. 6, June 2019

From the abstract:
Americans generally want to remain in their homes even if they develop chronic health problems or disabilities that qualify them for nursing home care. While family members or friends provide the preponderance of home-based support, millions of Americans use paid personal assistance services (PAS). Inexorable demographic trends are increasing the numbers of people who need paid home-based PAS, with this need rapidly outstripping the capacity of the paid PAS workforce. While many factors contribute to this widening discrepancy, its roots reach back more than eighty years to asynchrony among various policies affecting home-based supports for people with functional impairments and policies affecting home-based PAS workers. Finding solutions to the growing gap between demand for the services and the PAS workforce requires policies that cut across societal sectors and align incentives for consumers, workers, and other key stakeholders.

Related:
Home Health Care Providers Struggle With State Laws And Medicare Rules As Demand Rises
Source: Susan Jaffe, Health Affairs, Vol. 38, No. 6, June 2019