Category Archives: Laws/Legislation

“The Largest Civil Rights Organization Today”:Title VII and the Transformation of the Public Sector

Source: Thomas J. Sugrue, Labor Studies in Working-Class History of the Americas, Vol. 11 no 3, Fall 2014
(subscription required)

In a 1966 interview, Gloster Current, a longtime official at the National Association for the Advancement of Colored People (NAACP), told historian August Meier that he considered the “federal government the largest civil rights organization today.” Current captured the most important economic impact of the long black freedom struggle: government had become the single most important agent of African American economic advance in the last third of the twentieth century. “Public employment,” write historians Michael Katz and Mark Stern in their systematic survey of twentieth-century census data, “became African Americans’ distinctive occupational niche.” In 2000, a remarkable 43 percent of black women and 19 percent of black men worked in government and state-related jobs. Those jobs served as a buffer against deindustrialization and an alternative to rapidly proliferating, poorly paid service-sector and retail jobs. “In 2000,” Katz and Stern show, “the median income for blacks who worked full time in the public sector exceeded the income of black private sector employees by 15 percent for men and 19 percent for women.” They conclude: “Public and state-related employment have thus proved the most powerful vehicles for African American economic mobility and the most effective anti-poverty legacy of the Great Society.” That government employment would be the major vehicle for black advancement was by no means inevitable, even when Current made his optimistic statement in early 1966…..

The Civil Rights Act of 1964: The Difference a Law Can Make

Source: Nancy MacLean, Labor Studies in Working-Class History of the Americas, Vol. 11 no 3, Fall 2014
(subscription required)

… The Civil Rights Act of 1964 is one of the premier legislative victories of American social movements; it also illuminates how a historic reform can advance activism and alter movement strategy. The product of long struggle by African Americans and progressive white allies, particularly Jewish activists, the bill addressed many areas of public life. It sought to end segregation and discrimination in arenas including workplaces, courts, polls, government agencies, municipal facilities, schools, and public accommodations such as restaurants, motels, and transportation. The Supreme Court’s Brown v. Board of Education decisions had no bite, for example, until the civil rights act added teeth. Its Title VI, which enabled the withdrawal of federal funds from districts that continued to discriminate, sparked the first school desegregation efforts that went beyond tokenism. But the section of the act that prohibited discrimination on the job —Title VII— had the most far-reaching and enduring impact. …

Fair Hospital Prices are Not Charity: Decoupling Hospital Pricing and Collection Rules from Tax Status

Source: Erin Fuse Brown, Georgia State University College of Law, Legal Studies Research Paper No. 2014-24, June 16, 2014

From the abstract:
The Patient Protection and Affordable Care Act created a new set of rules for nonprofit hospitals to maintain their federal tax-exemption, codified at Section 501(r) of the Internal Revenue Code. The 501(r) rules attempt to address the problem of hospitals’ excessive prices and onerous debt collection actions against self-pay patients by imposing fair pricing and debt collection requirements for patients eligible for financial assistance. Nevertheless, the 501(r) rules leave many financially vulnerable patients unprotected: those who receive care at for-profit hospitals and those who find themselves ineligible under a hospital’s self-defined criteria for financial assistance. Protection by the 501(r) rules is not only uneven, it is also opaque, based on circumstances and information the patient cannot easily discover or control, creating a kind of fairness roulette. The ramifications of losing the fairness roulette for the patient can mean the difference between a manageable medical bill and financial ruin. There is no good reason to limit fair pricing and collection requirements to tax-exempt hospitals. Fairness is not charity because requiring a hospital to charge a fair price does not require it to give services away for free or at a loss. This article proposes to decouple the fair pricing and collection rules from a hospital’s tax status, and instead make compliance with these rules a condition of participation in Medicare. Under this proposal, all hospitals that participate in Medicare would have to limit charges and collection activities for uninsured and underinsured self-pay patients who fall within certain income limits or whose medical bills exceed a defined percentage of income. Because fair hospital pricing and collection requirements are not charity, we should be treated fairly by any hospital regardless of its tax status.

Civil Rights Enforcement in the Most Dangerous Branch

Source: Catherine Y. Kim, University of North Carolina (UNC) at Chapel Hill – School of Law, UNC Legal Studies Research Paper No. 2480134, August 13, 2014

From the abstract:
For decades, civil rights scholars have debated the relative institutional competencies of federal courts and administrative agencies in vindicating civil rights violations. Doctrinal developments diminishing the role of federal courts, however, render this comparison increasingly irrelevant. The scholarly focus must shift from the question of institutional choice, i.e., whether the judiciary is better suited than agencies to combat civil rights violations, to one of institutional design, i.e., how to design federal agencies to facilitate meaningful enforcement.

Skepticism toward administrative enforcement of civil rights reflects a fear that the President, as head of the executive branch, will manipulate – or subvert – agencies’ enforcement efforts for partisan ends, thereby raising broader separation-of-powers concerns. This article develops a framework for assessing how a given agency’s institutional design shapes the legal, political, and structural constraints to presidential policymaking discretion, and how these constraints vary depending on whether the policy is implemented through notice-and-comment rulemaking, the issuance of interpretive guidance, or the strategic exercise of prosecutorial discretion in enforcement proceedings. Given agencies’ freedom to choose between policymaking tools, this structure creates incentives for an administration to channel policy decisions – particularly controversial ones – through certain tools precisely to circumvent constraints on its discretion. This analysis carries important implications beyond the civil rights context, offering insights into enforcement debates across regulatory contexts, including the current debate over administrative relief for undocumented aliens.

A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

Source: Sophia Z. Lee, University of Pennsylvania Law School, Public Law Research Paper No. 14-21, June 1, 2014

From the abstract:
Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman’s account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms “reverse state action” (the targeting of private actors) and “government by numbers” (the use of statistics to identify and remedy violations of civil rights laws) defined the civil rights revolution. Together they “requir[ed] private actors, as well as state officials, to . . . realize the principles of constitutional equality” and allowed the federal government to “actually achieve egalitarian advances in the real world.” Within the frame of Ackerman’s study, these features of the civil rights revolution worked in tandem, perhaps even synergistically, helping to generate the period’s remarkable changes in voting, employment, and education. But as this essay shows, at least in the case of employment discrimination, reverse state action quickly became a threat to government by numbers. In the 1970s, no sooner did numerical measures take hold in preventing, settling, and remedying employment discrimination than courts faced claims that these measures violated the very laws pursuant to which they had been adopted. Exactly when and where state action adhered ultimately helped decide the viability of the numerical approach in the new employment discrimination regime. The eventual tensions between the “government by numbers” and “reverse state action” strands of Ackerman’s account raise questions about the content and viability of the civil rights revolution he documents. They also underscore the importance of refining his theory’s account of what he terms consolidation, synthesis, and judicial betrayal.

Growing Use of State Ballot Initiatives for Political Change

Source: Diane Rehm Show, August 27, 2014
(audio)

Ballot initiatives have been in use since the early 1900s: Oregon was the first state to allow citizens to put laws on the ballot. This November, more than 100 ballot initiatives will face voters in 41 states. Issues on the ballot include minimum wage, medical marijuana and gun control. These measures have attracted more than $1 billion in campaign spending this year alone. As both parties use ballot measures to increase voter turnout, corporations are writing initiatives in some of the most expensive races in the nation. Diane and guests discuss the rise in ballot initiatives, who’s funding them and what they mean for the American political process.
Guests:
∙ Reid Wilson – staff writer, The Washington Post
∙ Norman Ornstein – resident scholar, American Enterprise Institute
∙ Josh Levin – vice president of programs, Ballot Initiative Strategy Center
∙ Susan MacManus – distinguished professor of political science, University of South Florida

Related Links:
Ballot Initiative Strategy Center

Ballot Initiatives Become Pricey Playgrounds for Corporations and Political Parties
Source: Reid Wilson and Niraj Chokshi, Washington Post, Gov Beat blog, August 27, 2014

How Do Proof-of-Citizenship Laws Block Legitimate Voters?

Source: Stuart Naifeh, Dēmos, August 25, 2014

From the summary:
… These states insist that requiring such evidence is necessary to ensure that non-citizens do not fraudulently register to vote—something that occurs extremely rarely, if at all. In fact, these laws prevent numerous eligible voters from registering simply because they do not have an acceptable document showing their U.S. citizenship. At the same time, documentary proof-of-citizenship requirements do no more to prevent voter registration fraud by non-citizens than the threat of criminal prosecution and deportation has done ever since states began registering voters. Preventing legitimate voters from participating in our democracy is an unacceptable price to pay for stopping at most a tiny number of fraudulent voter registrations…. States that require documentary proof-of-citizenship vary in what kinds of documents they will accept. Unfortunately, although the laws on first read appear to permit a wide variety of documents to be accepted, the reality is that many of the acceptable documents either don’t exist or are not obtainable for many individuals. Both Kansas and Arizona, for example, claim to accept a driver’s license or identification card issued by another state if the document indicates on its face whether the applicant is a citizen. Since no state—including Kansas and Arizona themselves—issues licenses or identification cards containing such a citizenship indicator, these states effectively permit only their own licenses to be used. Similar problems limit voters’ ability to use the other acceptable documents. …

The Interest Group Top Tier: More Groups, Concentrated Clout

Source: Lee Drutman, Matt Grossmann, Tim LaPira, APSA 2014 Annual Meeting Paper, 2014

From the abstract:
Recent research on influence has produced seemingly contradictory findings. On the one hand, some scholars have shown that on any given issue, economic resources show little relationship to the likelihood of policy success (Baumgartner et al. 2009). Yet, other scholars have found that policy outcomes match the preferences of the top interest groups and the well-off much better than the average citizen (Gilens 2012). This paper offers an empirical resolution to this puzzle by closely examining the advocacy activities of the top tier of interest groups in Washington. As the total population of interest organizations has increased beyond the capacity of the government to pay attention to all of them, the select few at the top — mostly business interests — have concentrated their resources toward maintaining their privileged status as major players. Using a new data set of 37,706 unique interest groups who reported lobbying between 1998 and 2012, we show that the organizations at the top in lobbying expenditures, number of lobbyists, and number of firms and staff, increasingly retain their privileged positions — but need to pay more to do so. We document lobbying activity trends for those organizations at the top of the extremely unequally distributed lobbying population. We find that organizations at the top in one year pay more to stay at the topeach successive year, even if that means shifting their issue agenda to whatever is on the minds of Congress.
Related:
How the Lobbying Top Tier explains an influence paradox
Source: Lee Drutman, Matt Grossmann, Tim LaPira, Sunlight Foundation blog, August 26, 2014

The Cost of the Closet and the Rewards of Inclusion: Why the Workplace Environment for LGBT People Matters to Employers

Source: Deena Fidas, Human Rights Campaign Foundation, May 2014

From the summary:
In this follow-up to the groundbreaking 2009 study, Degrees of Equality, the Human Rights Campaign Foundation has studied the national picture of lesbian, gay, bisexual, and transgender workers’ experiences of inclusion on the job as contrasting with the perceptions of their non-LGBT coworkers on issues. The study reveals that despite a changing social and legal landscape for LGBT people, still over half (53 percent) of LGBT workers nationwide hide who they are at work.