Category Archives: Laws/Legislation

What the Supreme Court’s Prop. 8 Ruling Means for Voter-Approved Laws

Source: Dylan Scott, Governing, June 26, 2013

The U.S. Supreme Court’s decision to dismiss the case over California’s gay marriage ban on standing grounds could have serious implications for other states that allow voters to pass laws through the initiative process…. During oral arguments, as Governing reported, some of the justices questioned if the Court would set a dangerous precedent if it dismissed the case on standing. Their reasoning was that it would allow state officials to effectively neuter the voter referendum process by refusing to defend in court voter-passed laws that they don’t like. Justice Anthony Kennedy raised those concerns again Wednesday in his dissent, noting that 26 states allow voters to pass laws through ballot initiatives and argued that the Roberts decision could therefore impact them….

…There could be a legislative remedy to the somewhat unsettling idea that state officials could effectively veto voter initiatives, says Ernest Young, a law professor at Duke University. States could alter their initiative laws to designate an initiative’s sponsors or even an independent ombudsman as the party who would defend an initiative’s constitutionality in court….

Creating a Federal Right to Vote

Source: Joshua Field, Center for American Progress, June 25, 2013

From the summary:
…In a 5–4 decision, the High Court gutted a law that was renewed by Congress just seven years ago, and has protected voters from—among other acts of discrimination—purposeful vote dilution, overly restrictive voting procedures, and voter intimidation. The Court held that the formula that identifies the states and localities that are required to “preclear” their voting procedures and laws is unconstitutional and can no longer be used as a basis to subject those states and localities to oversight. Although the Court admits that “voting discrimination still exists,” its decision currently leaves voters with fewer protections against potentially discriminatory voting laws.

The Court’s decision is clearly a blow for voting rights, but it also serves as a wake-up call for Americans to become educated about the lack of protections in place to combat voting discrimination. Even with the Voting Rights Act, lawmakers have played politics with state voting laws and imposed political ideology at the expense of disenfranchised Americans. We should consider what legal protections remain for voters, as well as what can be done to ensure that all eligible voters can freely and easily participate in our democracy. …

Legislators and special interests are making sure we get the state court judges they want

Source: L. Jay Jackson, ABA Journal, July 2013

Not content that Iowa Supreme Court justices have been sufficiently chastised for legalizing gay marriage, a group of conservative state legislators tried to cut the salaries of the four remaining justices who were part of the 2009 decision. In April the lawmakers filed an amendment to slash their annual pay from $163,200 to $25,000. Voters had already removed the other three justices who voted for same-sex marriage in a 2010 retention election after activists campaigned against them….Although Iowa legislators dropped the pay cut amendment in May, experts nevertheless expect more such efforts. They say these measures reflect a broad trend of attacks on impartial arbiters who vote in ways that anger certain groups. It is part of a national war on state courts fought mostly by legislators and special interests who are targeting judges with negative campaign ads, and by legislators attempting to pack or unpack higher courts with like-minded jurists. Judges are battling from the bench, often with their hands tied by ethics rules that require them to take the high road, despite low blows. Legal observers say the judiciary is under attack as never before, jeopardizing the American tradition of impartial jurisprudence….

State Judicial Threat Assessment
Some state courts are feeling the pressure more than others. Here is a look at what’s going on around the country, where threats against the judiciary are high, low or somewhere in between.

Last year, California passed disqualification rules that go into effect if a judge received contributions of $5,000 or more in support of a campaign during the last six years (or in support of an upcoming campaign) from a lawyer or party involved in a case. The rules require judges to disclose campaign contributions of $100 or more from a party, lawyer or law office involved in a case and to complete a campaign ethics course before the election.

Supreme court justices are appointed for 12-year terms through a rigorous merit selection process where a nominating commission sends three names to the governor.

Three supreme court justices were voted out during the 2010 retention elections for ruling in favor of gay marriage. And this year, legislators sought to reduce the salaries of certain remaining justices by more than three-quarters. The measure was later withdrawn by sponsors after widespread condemnation.

This year, state legislators scrapped merit selection and gave the governor authority to name Kansas Court of Appeals judges, subject to Senate confirmation.

In 2008, outside groups lobbied to reduce the size of the supreme court by two justices, reportedly to remove two Republicans on the court. The next year, the supreme court enacted strong recusal rules allowing the full court to determine whether a challenged judge should be removed from a case.

Big business and the insurance industry give generously to stack the bench with pro-corporate candidates, resulting in the high court issuing a disproportionate amount of rulings abridging injured plaintiffs’ rights.

Earlier this year, legislators proposed recusal of judges who have accepted more than $2,500 from a party or law firm arguing before them. And a former Texas Supreme Court chief justice recently said the state has “one of the worst systems” for judicial elections.

Impact of “Marketplace Fairness” on Select Jurisdictions – UPDATE

Source: IHS Global Insight, May 2013

From the press release:
The inability of cities and local jurisdictions to collect existing sales taxes on internet sales translates into billions in lost revenue, a report done by IHS Global Insight for The U.S. Conference of Mayors found. The report specifically examines the federal Marketplace Fairness Act, which would allow state and local governments to enforce existing state and local sales and use tax laws on remote retailers so long as they simplify tax administration by adopting the Streamlined Sales and Use Tax Agreement…

…The report provides estimates of the sales tax revenue losses for E-commerce in 2011, 2012, and 2013 across select US cities and counties in the absence of the Act. The report’s estimates do not cover non-E-commerce remote sales from such sources as catalogues, etc.

Key findings of the report follow:
* Over 225 billion in E-commerce transactions were recorded in the US in 2011. Collectively, state and local governments experienced a direct loss of revenues due to uncollected taxes on E-commerce of nearly $12 billion in 2011, rising to almost $14 billion by 2013.
* The counties and cities tabulated in this report suffered a loss of nearly $1.3 billion in 2011, $1.5 billion in 2012, and a projected $1.7 billion in 2013. The three year total of losses for these counties and cities is estimated at $4.5 billion.
* Among cities, New York City experienced the greatest loss in 2012 of over $205 million. Phoenix and Chicago followed with losses of $18 million and $17 million respectively. These are forecast to rise to $235 million for New York, over $20 million for Phoenix, and over $19 million for Chicago in 2013.
* Eleven cities are projected to lose over $10 million each in 2013.
* Over the three-year period, these eleven cities will lose a cumulative total of $974 million.
* Among counties, Los Angeles, and Cook County experienced the greatest losses at over $70 million and $42 million in 2011. King County, WA, followed with a loss of $30 million; Westchester County, NY, lost nearly $26 million.
* In 2013 Los Angeles County is forecast to lose over $95 million; Cook County, over $55 million; King County, over $41 million; and Westchester County, over $35 million. Collectively, these four counties alone are projected to lose over $227 million in 2013.
* In ten counties, the cumulative three-year 2011-13 revenue loss is $881,670 …
See also:
Key Findings

United States of ALEC

Source: Bill Moyers, June 21, 2013
(video & transcript)

From the summary:
A national consortium of state politicians and powerful corporations, ALEC — the American Legislative Exchange Council — presents itself as a “nonpartisan public-private partnership”. But behind that mantra lies a vast network of corporate lobbying and political action aimed to increase corporate profits at public expense without public knowledge.

In state houses around the country, hundreds of pieces of boilerplate ALEC legislation are proposed or enacted that would, among other things, dilute collective bargaining rights, make it harder for some Americans to vote, and limit corporate liability for harm caused to consumers — each accomplished without the public ever knowing who’s behind it. Using interviews, documents, and field reporting, the episode explores ALEC’s self-serving machine at work, acting in a way one Wisconsin politician describes as “a corporate dating service for lonely legislators and corporate special interests.”…

….Following up on a 2012 report, this update includes new examples of corporate influence on state legislation and lawmakers, the growing public protest against ALEC’s big business-serving agenda, and internal tactics ALEC is instituting to further shroud its actions and intentions….

Bosses for Buses: U.S. Employers Supporting Public Transit

Source: Greg LeRoy, Thomas Cafcas, Leigh McIlvaine, Kasia Tarczynska and Philip Mattera, Good Jobs First, May 2013

From the summary:
American employers are organizing and winning better public transportation in many metro areas. Major employers such as universities and hospitals and coalitions of businesses help explain why state and local ballot initiatives for transit consistently win more than 70 percent of the time.

Yet at the national level, there is not a unified corporate voice for transit; this has been especially evident during three recent federal debates that affected this vital public service. Instead, there are disparate voices speaking only to selected aspects of transit.
See also:
Press Release

The Unfinished March: An Overview

Source: Algernon Austin, Economic Policy Institute, June 18, 2013

From the press release:
Fifty years after the March on Washington for Jobs and Freedom, most of its goals have not been accomplished, a new EPI report finds. In The Unfinished March: An Overview, Algernon Austin, director of EPI’s Program on Race, Ethnicity, and the Economy, explains that while the March on Washington for Jobs and Freedom led to legislative victories—including mandating equal access to public accommodations, barring racial discrimination in employment, and protecting blacks’ voting rights—the hard economic tasks of the march remain a distant dream. The remaining goals of the march include the demand for decent housing, adequate and integrated education, full employment, and a national minimum wage that can realistically lift a family out of poverty—all of which are crucial to transforming the life opportunities of African Americans and people of all races and ethnicities. View the report’s infographic, “The Unfinished Business of the 1963 March on Washington.”…

….This paper launches a new Economic Policy Institute project, The Unfinished March, that will review America’s civil rights successes as well as the significant amount of civil rights work that remains to be done and will be followed by a series of nine reports written by some of the nation’s leading experts. Each report will address a specific civil rights goal, the progress that has or has not been made, and, if necessary, the policy measures needed to fully realize the goal. In addition, on Monday, July 22, EPI will host a symposium on the history of the march and the current economic and political challenges facing communities of color….

Click here for full image

50 years of recessionary-level unemployment in black America
Source: Algernon Austin, Economic Policy Institute, Economic snapshot, Race and Ethnicity, June 19, 2013

The Past and Future of Deinstitutionalization Litigation

Source: Samuel R. Bagenstos, Cardozo Law Review, Vol. 34, No. 1, 2012

From the abstract:
Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified institutionalization can violate the Americans with Disabilities Act, was followed by a wave of new lawsuits challenging institutionalization of people with psychiatric, developmental, and/or physical disabilities. And the Obama Administration’s Community Living Initiative has led the United States Department of Justice to move aggressively into this field as well. The question naturally arises whether this new round of deinstitutionalization litigation will end in the same place as the litigation of the 1970s and 1980s.

This article contends that things will be different this time — though not necessarily better. The outcomes of the first wave of deinstitutionalization litigation resulted from the interaction between the political dynamics into which advocates inserted themselves and the legal claims they employed. But, as this article shows, both the political dynamics and the legal claims have changed significantly. Precisely because the first wave of deinstitutionalization litigation was so successful in moving residents out of large state institutions for people with psychiatric and developmental disabilities, the efforts of deinstitutionalization advocates have turned to ensuring the availability of adequate services in the community. This has shifted the fiscal politics of the field in ways that destabilize old political alliances but create the potential for new ones. At the same time, deinstitutionalization advocates have moved from the due process theories on which they relied in the 1970s and 1980s to an antidiscrimination theory relying on the ADA and Olmstead. That theory focuses directly on state resource-allocation decisions and affords states a powerful incentive to create and fund adequate community services. All of which leaves the future of deinstitutionalization uncertain. Deinstitutionalization advocates are focused to a greater extent than ever on the goal of building up a robust community-based treatment system. And they are employing the most powerful legal tool they have ever possessed to achieve that goal. But the political partners who helped them achieve their great success in the first wave of deinstitutionalization will likely be the biggest obstacle to success in the next wave.

When Local Governments’ Pensions Are Beyond Their Control

Source: Susan K. Urahn, Governing, June 12, 2013

Many cities and counties are tied to state pension systems. That can be a liability, but it also can be an asset….One aspect of this important issue is often overlooked: the connection between state pension policy and local government. Many cities and counties are tethered to the rules, administration and financing of their states’ pension systems. When states get in trouble, local governments can end up having to cover the costs of decisions beyond their control. The reverse is also true: A state can help its local governments by enacting sound pension policies. Examples from Illinois and Kentucky illustrate both aspects of this situation….

Homelessness: Targeted Federal Programs and Recent Legislation

Source: Libby Perl, Erin Bagalman, Adrienne L. Fernandes-Alcantara, Elayne J. Heisler, Gail McCallion, Francis X. McCarthy, Lisa N. Sacco, Congressional Research Service, CRS Report for Congress, RL30442, June 7, 2013

The causes of homelessness and determining how best to assist those who find themselves homeless became particularly prominent, visible issues in the 1980s. The concept of homelessness may seem like a straightforward one, with individuals and families who have no place to live falling within the definition. However, the extent of homelessness in this country and how best to address it depend upon how one defines the condition of being homeless. …

…A number of federal programs in seven different agencies, many originally authorized by the McKinney-Vento Act, serve homeless persons. These include the Education for Homeless Children and Youth program administered by the Department of Education (ED) and the Emergency Food and Shelter program, a Federal Emergency Management Agency (FEMA) program run by the Department of Homeland Security. The Department of Health and Human Services (HHS) administers multiple programs that serve homeless individuals, including Health Care for the Homeless, Projects for Assistance in Transition from Homelessness, and the Runaway and Homeless Youth program. …

…This report describes existing federal programs that provide targeted assistance to homeless individuals and families (other federal programs may provide assistance to homeless individuals but are not specifically designed to assist homeless persons). These include those programs listed above, as well as others that Congress has created since the enactment of McKinney-Vento. In addition, this report discusses federal efforts to end homelessness. Finally, Table 1 at the end of this report shows funding levels for each of the ED, DHS, HHS, HUD, DOL, and Department of Justice (DOJ) programs that assist homeless individuals. Table 2 shows funding levels for VA programs….