Anti-abortion groups don’t think they lost the midterms

Originally published in Vox on November 17, 2022.
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When he was campaigning for governor of Minnesota, Scott Jensen first said he’d ban abortions with no exceptions for rape and incest. Later, he said the governor couldn’t do anything about abortion anyway, given Minnesota’s constitutional protections. Last weekend, in a 22-minute Facebook Live video reflecting on his bruising loss, he made a new argument.

“This election was not about inflation, and crime and education…for so many Americans across the country this election was about an intrusion into a person’s autonomy,” he said, referring to abortion. “In the future I think the lesson is clear — at least it should be to Republicans. If you infringe on someone’s freedom, you may well lose. You’ll probably lose.”

The 67-year-old politician and physician announced his support for birth control over the counter, and morning-after pills in every medicine cabinet. “The pro-life movement should not be about trying to determine what the sexual mores or behaviors are of an American country,” he said.

A week out from the 2022 midterm elections, where abortion played a pivotal role in shaping both campaigns and voter turnout, candidates like Jensen, conservative strategists, and leaders of the movement to restrict abortion rights have been taking stock of the results for a cycle that was expected to be a much bigger blowout for Republicans.

Finger-pointing abounds — at other Republicans, at Democrats, at the media.

Some argue the midterm results are less bad than they first seem; despite losing every abortion rights ballot initiative, and some key statewide races that would have enabled the legislatures to pass new abortion restrictions, Democrats failed to unseat incumbent governors and didn’t win enough seats in Congress to pass any federal legislation restoring abortion rights. “If anything was less impressive on election night than the ‘red wave,’ it was the abortion wave,” quipped Catherine Glenn Foster, the president of Americans United for Life.

Others, like Jensen, say the abortion results were terrible for Republicans and the party requires strategic recalibration if they’re to win in the future. The reactions showcase the divisions and potential directions for the anti-abortion movement in the wake of the Dobbs v. Jackson decision, where the fate of reproductive rights in America now lies largely in the hands of governors, state legislatures, and voters.

Anti-abortion leaders argue the midterms showed politicians who restrict abortion access won’t pay a price

Some leaders and commentators who want to restrict abortion rights say they see no convincing reason to moderate their goals in the wake of the midterms.

Marjorie Dannenfelser, president of the Susan B. Anthony Pro-Life America, has been working to push back on what she calls a “facile narrative” that abortion rights were a winning issue for Democrats. In a Fox News op-ed she published on Monday, Dannenfelser argued that Republican candidates who went on the offense on abortion, and challenged their opponents’ “pro-abortion extremism” prevailed, citing Florida Sen. Marco Rubio, North Carolina Senator-elect Ted Budd, and Ohio Senator-elect J.D. Vance. She contrasted them with Mehmet Oz in Pennsylvania and Adam Laxalt in Nevada, who she said “buried their heads in the sand” on abortion. (Laxalt ran an ad this fall stressing that abortion rights are protected under Nevada law, and Oz mostly focused on how the federal government shouldn’t be involved.)

Dannenfelser argued her movement was just outspent, and dinged leaders like Mitch McConnell for not campaigning against the anti-abortion ballot measure in his home state.

Glenn Foster, president of Americans United for Life, has put out similar glass-half-full post-mortems, noting that public officials who backed or enforced abortion restrictions were re-elected in nearly 20 states. “Democrats didn’t crack state governor, state attorney general, or state house seats in red states that have enforced abortion limits since June,” she wrote. “Abortion activists couldn’t defeat public officials in those states or win the U.S. House or Senate to block those state laws.”

Anti-abortion media ran with similar arguments, emphasizing that Democrats and pro-choice activists failed to unseat politicians in certain races where they made abortion rights central. “Texas Pro-Life Republicans Win Every Race After Democrats Promised to Beat Them for Banning Abortions,” read one report in LifeNews. “Every Pro-Life Republican Governor Who Signed an Abortion Ban Won Re-Election” read another.

John Gizzi, the chief political correspondent for the right-wing NewsMax, published analysis concluding that arguments that abortion hurt Republican candidates are “just a lot of bunk” by “big media” and those who want abortion rights. “In race after race, abortion was not the deciding factor,” he argued, and pointed to New York, where anti-abortion gubernatorial candidate Lee Zeldin over-performed, and nine out of 10 anti-abortion Republicans won congressional seats. “In many significant races across the U.S., Democrats used the abortion card without success,” Gizzi added.

Other conservative writers joined in to say the results were not as bad as the left suggested. “Despite setbacks, despair is unwarranted,” concluded Jonathon Van Maren in First Things magazine. John McCormack, the Washington correspondent for National Review, described the results as “messy” but noted that there was no evidence Senate candidates paid a price for embracing a 15-week federal abortion ban. “For all the disappointment some Republicans felt on election night, a clean sweep for incumbent GOP governors was no small thing,” he added. “By protecting the Senate filibuster at the federal level, pro-lifers ensured the survival of state laws that have taken effect since Roe … and lived themselves to fight another day.”

And rather than losing because they embraced unpopular positions on abortion, as Jensen, the gubernatorial candidate from Minnesota, asserted, some conservative writers argued candidate quality was the far more persuasive explanatory variable. “I’ll put it plainly: Donald Trump continues to be a significant drag on the GOP,” wrote Alexandra DeSanctis in the National Review. “Nearly every single one of his handpicked candidates failed or underperformed relative to other Republicans, in an economic climate highly favorable to the GOP. That’s the story of last night’s midterms.”

Other conservatives say the midterms show the need to stake out more popular positions

Not all conservatives are viewing the midterm results with rose-tinted glasses.

William Saletan, a writer for The Bulwark, a center-right news outlet, published an analysis calling abortion “decisive” in the midterms and said Republican candidates paid the price. Using national exit polls and a separate study overseen by the Associated Press, Saletan concluded the Dobbs decision influenced which candidates people voted for, and whether they voted at all. “Politically, the result is clear,” he wrote. “Most voters are pro-choice. They don’t like what the Court did.”

Several pieces argued the results reflect the weaknesses of the anti-abortion movement. In an op-ed entitled “Pro-lifers were the midterms’ biggest losers,” writer Ben Kew said the results show “hardline abortion restrictions” will hurt Republicans, and one solution could be to rally behind the “safe, legal, and rare” position espoused by Clinton. “Yet in these febrile and divided political times, anyone expecting an amicable compromise is likely to be in for a very rude awakening,” he concluded pessimistically.

Aaron Renn, who runs a Substack focused on Christianity and politics, said the anti-abortion movement is “dead in the water” and emphasized the degree of actual support from Republican legislators has been vastly inflated in the past. “Conservative Christians need to understand that the majority of the public simply does not agree with their social positions,” he wrote. “This is going to be a painful adjustment for a lot of people who are used to thinking of themselves as a ‘moral majority.’”

To stay politically relevant going forward, some anti-abortion writers urged their allies to seek “compromise and credible commitment to supporting women and children” as Patrick Brown wrote in America magazine. This might require anti-abortion advocates to downgrade their absolutist goals. “Republicans will have to figure how to get half a loaf on this issue because trying to get a whole loaf will cause the oven to explode in their faces,” wrote Ross Kaminsky in the Spectator.

The Wall Street Journal was even more blunt with its midterm assessment. “Independent voters in swing states may be unhappy with the direction of the country, but they didn’t trust the GOP enough to give them power,” the paper’s influential editorial board wrote. “Abortion seems to have been one factor that cut against the GOP this year, and the pro-life party will have to adjust its policy and message for 2024.”

Some anti-abortion leaders say the problem was they were outspent by opponents, and were disadvantaged by a biased media landscape

There were wide spending gaps between anti- and pro-abortion rights activists, and conservatives focused on those in their post-mortems. “During this general election, Democrats spent an unprecedented $391 million on abortion-focused TV ads alone, compared with only $11 million on the GOP side — outspending them more than 35-to-1,” wrote Dannenfelser in Fox News. In Michigan, the pro-choice coalition organizing to pass a ballot measure raised more than $40 million, more than double the $16.9 million the anti-abortion coalition fundraised.

Lila Grace Rose, president of the anti-abortion group Live Action, reacted to the abortion rights ballot measures by saying the results showed “the need to redouble our efforts of education & persuasion on the value of human life” and to “match & exceed the reach & resources of the abortion industry.”

Then-President Donald Trump shakes hands with anti-abortion activist Lila Grace Rose during an event at White House in 2019.

The advantage in spending, anti-abortion leaders argued, was coupled with lies perpetuated by Democrats and the media.

“We need to recognize that voters are regularly lied to about abortion policy, and Republicans don’t do enough to counter those lies,” wrote DeSanctis in National Review, arguing voters in Michigan were presented with an inaccurate picture of the stakes of the abortion rights ballot measure. “For Democrats who spent millions casting their opponents as heartless villains who don’t care if women die, and were met with silence or a weak response, lying worked,” added Dannenfelser.

Van Maren said pro-choice activists had adopted the same misleading playbook as reproductive rights activists used in Ireland. “A relentless torrent of newspaper stories, commercials, and social media ads hammered this simple narrative: Vote for abortion, or women will die,” he wrote. “Pro-lifers pushed back on these claims, but their rebuttals did not receive the same coverage.”

The anti-abortion movement frames their post-Roe efforts as a decades-long project

Many anti-abortion leaders say publicly they are not too worried about the results of the election and predict Dobbs outrage will fade the further away from the decision the country gets. While direct-democracy ballot measures proved a tough vehicle for anti-abortion advocates, they for now take solace that voters seem open to electing anti-choice politicians.

“The midterms were disappointing, but not terrible for pro-lifers,” said Brad Mattes, president of the Life Issues Institute. “Overturning Roe was one generational struggle, persuading people about the evil of abortion is the next generational struggle.”

Ramesh Ponnuru, a National Review editor, predicted after the midterms that most Republicans will keep saying they are pro-life when pressed but won’t talk about the issue much, and others “may now put a higher premium on prudence” in their rhetoric and anti-abortion governance.

Van Maren urged his anti-abortion movement to lean into “victim photography” going forward to show the public gruesome images that could change their mind on abortion. Kristan Hawkins, president of Students for Life, said the midterm ballot measure losses convinced her that more focus needs to be on the federal level. “Like other injustices our nation faced in our past,” she tweeted, “some states will just refuse to acknowledge human rights and progress.”

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How abortion rights advocates won every ballot measure this year

Originally published in Vox on November 11, 2022.
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Americans voiced their preference for abortion rights on Tuesday, casting votes in support of reproductive freedom everywhere they appeared on the ballot: Kentucky, Michigan, Vermont, Montana, and California.

Counting a pivotal ballot measure Kansas voters weighed in on in August, reproductive rights have been on the ballot in six states since the Supreme Court overturned Roe v. Wade in June. Each time, abortion rights supporters have won.

While Democratic candidates running on abortion access also did extremely well in their contests this week, the vote tallies indicate that the ballot initiatives were often able to draw even more support than the Democratic candidates, garnering votes from individuals who otherwise cast ballots for Republicans, libertarians, or no candidate at all.

“Organizers communicated in a nonpartisan way and that was key,” said Ashley All, who served as communications director for the pro-choice coalition in Kansas. “Their messaging around personal liberty and reproductive freedom and protecting the constitutional rights of women to make the decisions for themselves resonated because it’s shared American values.”

The organizers also succeeded in winning over voters who may personally oppose abortion or have reservations about it. While a majority of Americans say they believe Roe v. Wade should be upheldroughly one-third of those backing legal abortion do not personally support it. And many who support abortion rights believe it should only be legal in cases of rape or a threat to a woman’s life.

Ethan Winter, the research and strategy director for Families United for Freedom, an abortion rights political action committee, emphasized that the ballot measure campaigns all leaned heavily on persuasion tactics.

“Montana is a heavily Republican state, Kentucky is a heavily Republican state,” he told Vox. “All of these victories depend on Republicans voting for you, on people who self-identify as ‘pro-life’ voting for you.” In Kansas, where Trump won handily in 2020 and registered Republicans outnumber Democrats almost two to one, the pro-choice side won by a nearly 20-point margin. Even California’s measure codifying abortion rights in the state constitution passed this week with roughly 6 percent more support than other Democrats currently have on the statewide ballot.

Abortion rights organizers say they hope their successes this year across diverse states inspires other leaders to follow suit. How to get issues on the ballot varies from state to state; in some cases citizens can collect signatures, while in others lawmakers have to approve turning issues over to voters. In Michigan, activists collected more than 750,000 signatures to get their abortion rights measure on the November ballot. In MontanaKentucky, and Kansas, by contrast, Republican lawmakers had voted to place their anti-abortion measures on the ballot.

“Our resounding victory now provides a model for the future of coalition-based reproductive ballot initiatives all across the country,” declared Nicole Wells Stallworth, the executive director for Planned Parenthood Advocates of Michigan, in a press conference on Wednesday.

“I’m hoping other states are looking at the outcomes of last night,” Jodi Hicks, the head of Planned Parenthood Affiliates of California, told Vox. “And looking at what they too can do and really start polling, message-testing, and laying the groundwork.”

Voters don’t like big status quo disruptions, and overturning Roe was just that

This past summer when Kansas voters went to cast their ballots, advocates for abortion rights were cautiously optimistic they’d have one advantage on their side: status quo bias.

Americans tend not to like big, disruptive changes, which is why political science researchers believe they observe a “status quo bias” when people weigh in on ballot initiatives. Voters often reject measures they perceive as introducing major change.

Anti-abortion politicians in Kansas had proposed an amendment to the Kansas constitution that would have overruled a Kansas Supreme Court decision affirming Kansans’ right to end a pregnancy. Passing the amendment would have given state lawmakers the power to ignore this ruling and legislate a total abortion ban in the wake of the Dobbs decision.

Activists in Kansas, in other words, could frame the amendment as an effort to take away rights Kansans currently enjoyed under their state constitution, something they called extremist, radical, and disruptive. This general electoral instinct to avoid major shifts to the status quo, organizers believe, helped them defeat the amendment in August.

While the abortion ballot choices on Tuesday weren’t quite as straightforward as asking voters whether they want to remove an existing state constitutional protection, organizers did lean on “status quo bias” messaging in their respective campaigns. In Michigan, for example, though Proposition 3 was an affirmative amendment to codify reproductive freedom in Michigan’s constitution, activists framed their language around the idea of restoring the rights of Roe v. Wade, of bringing back the reality Americans had known for five decades.

In Kentucky activists similarly emphasized a theme of restoration. “We focused our messaging on restoring access and making sure things do not go any further in the extremist direction,” explained Rachel Sweet, who led the Kentucky coalition organizing to defeat the anti-abortion amendment.

Abortion rights organizers used state-specific messaging to win

Activists and researchers experimented with different messages and messengers to win their ballot initiative campaigns, deploying themes that were specific to the histories and values of each state.

In Montana, for example, organizers looked to capture the deep sense of pride voters have in their state’s right to privacy. “Montanans of every ideology here are deeply proud of our constitution which enshrines the right to privacy,” said Hillary-Anne Crosby, a spokesperson for the coalition organizing to defeat Montana’s anti-abortion ballot measure. “This amendment really came down to private medical decisions.”

Montana’s referendum — known as LR 131 — was spurred by a bill Republican lawmakers passed last year asking voters to affirm that an embryo or fetus is a legal person with the right to medical care if it survives an abortion or delivery. Under the law, health care providers could face up to 20 years in prison and a $50,000 fine if they failed to provide such care.

While Republican lawmakers framed the measure as a moral choice for anyone opposed to abortion, reproductive rights advocates argued that the proposal itself had little to do with abortion and everything to do with palliative care and compassion for bereft parents.

That’s because infanticide is already illegal in Montana, and the idea that infants were being killed after an abortion is intentionally misleading, part of a longstanding effort by anti-abortion leaders to depict “botched abortions” that they say can result in live births.

Under current Montana law, if an infant has a fatal prognosis parents can spend those final and few moments holding their dying child and saying goodbye. Under LR 131, a doctor would have been obligated to take the infant away to attempt medical treatment, even if they knew nothing would work.

In mobilizing support against the referendum, advocates chose to de-emphasize abortion, often not mentioning the word at all. They ran ads featuring neonatologistsobstetricians and pediatricians, and grieving parents who said elected officials wanted to politicize their tragedies. Leaning in on status quo bias, doctors gave media interviews explaining how the proposed amendment would threaten the existing rights of parents and criminalize “the current practice of medicine.”

“We’re not trying to pull the wool over anyone’s eyes, we’ve been clear that one of the values of Compassion for Montana Families is uplifting and empowering reproductive and sexual health care,” Crosby told Vox. “But we felt abortion language was a misleading, deceptive thing to be talking about, and we wanted to accurately reflect what the bill in question would mean.”

This doesn’t mean Montana advocates aren’t celebrating the outcome as a victory for reproductive rights. “Conservatives tried to make abortion a boogeyman and people didn’t buy it,” Crosby added.

Vermont organizers also emphasized, in their campaign messaging, doing things “the Vermont way” — referring to the state’s independent and nonpartisan ethos.

Vermont is sometimes seen as this very liberal place because of Bernie Sanders or whatever, but historically Vermont has held a Republican majority as well as the governor’s seat, and Vermonters regularly split their tickets,” said Lucy Leriche, a spokesperson for the abortion rights coalition in Vermont.

Vermont, unlike most other states, also enjoyed 50 years of unlimited and unrestricted reproductive freedom. While states were permitted under Roe v. Wade to restrict pregnancies after viability (typically around 24 weeks in a pregnancy) Vermont lawmakers never did.

“The [anti-abortion] side is very quick to talk about all the bad things that would happen if you don’t restrict abortion rights, but in Vermont we never had any restrictions, so those arguments really do fall flat,” Leriche told Vox. “They don’t stick because we know better.” The measure to codify reproductive rights in Vermont’s constitution passed on Tuesday with 77 percent of the vote.

Abortion rights activists haven’t historically focused on state ballot measures

Shoring up abortion rights on the state level was not something reproductive health advocates prioritized when Roe v. Wade provided a nationwide constitutional protection. Anti-abortion activists would occasionally push state ballot measures, often in deep red states, but fighting them at the polls seemed less critical than challenging them in court for violating Roe.

Ballot measures are a space where there hasn’t been a ton of money on the pro-choice side and I think Families United for Freedom is indicative of more money moving in, and what I hope to be a larger trend,” said Winter. Families United for Freedom raised about $2 million this cycle, contributing $600,000 in Kansas, $275,000 in Kentucky, $500,000 in Michigan and $275,000 in Montana. Rachael Bedard, the PAC’s executive director, told Vox that they partnered with and supported local grassroots organizations, providing them with polling and media support, and avoided “a super-imposed national strategy.”

Sweet, who managed the campaigns in both Kentucky and Kansas, told Vox that their success was driven by the expertise of these local grassroots leaders. “We also had a lot of volunteers who have never knocked doors for a candidate, and they don’t consider themselves super politically active,” Sweet said. “But they are concerned and motivated by this one issue.”

One key research point Families United for Freedom found is that even among voters who supported the overturn of Roe v. Wade, a majority of them want abortion to be legal to save the life of the mother and in the case of rape and incest. Even in a hypothetical scenario in which abortion was illegal, the group found, 16 percent of those who said they approve of the Dobbs decision wouldn’t want the woman who had an abortion to face penalties.

“In other words,” Bedard said, “they disapprove of abortion but less than they disapprove of criminalization.” Winning on these abortion ballot measures, Bedard said, means creating the space for someone to continue living their life as a “pro-life” person, while emphasizing that doesn’t extend to making their neighbor’s choice for them.

“We need to let voters have their own personal feelings about abortion, but invite them to join us in the fundamental belief that women should make the decisions for themselves,” added Ashley All, who joined Families United for Freedom after defeating the Kansas ballot measure. “That is pro-choice and that is a way to really bridge the gap.”

The 3 possible outcomes of the midterms in Congress, explained

Originally published in Vox with Dylan Scott and Li Zhou on November 2, 2022
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Once the dust settles from the midterm elections, what — if anything — is Congress likely to do over the next two years?

Right now, polls and forecasts suggest the Senate still is a toss-up, while Republicans are more likely than not to win a majority in the House of Representatives. That would mean some form of divided government, with Republicans in charge of one or both houses of Congress while President Joe Biden and his veto pen would be able to stop them from implementing much of their agenda. But it’s still possible, although it currently looks less likely, that Democrats could hold onto the Senate, giving them two more years of a Democratic trifecta.

Those three scenarios — Republicans winning just the House, Republicans winning the House and Senate, and Democrats holding on to control of Congress — differ in important ways. A Republican-dominated Congress could create something like gridlock, leading to potential battles over the debt ceiling and government funding and giving the Senate the power to hold up Biden’s nominees. A split legislature, with Republicans controlling only the House of Representatives, would put a focus on investigations and, potentially, lead to a vote to impeach Biden. And if Democrats retain control, they’ll face many of the same challenges they did over the last two years.

Here are the three possible outcomes of the midterms and what might happen once the new Congress begins in January 2023.

Scenario 1: Republicans control both houses of Congress

How likely is it? Not unlikely! Forecasts from Politico and FiveThirtyEight suggest Republicans are favored to win the House, while the Senate is a toss-up that comes down to a few key races.

What’s at stake? If Republicans win control of the House and Senate, they’ll have the scope to pursue a legislative agenda beyond what they’ve promised on the campaign trail — even if President Joe Biden’s veto could ultimately block most of their ability to make it a reality.

GOP House Minority Leader Kevin McCarthy, who would become House speaker if elected, released a “Commitment to America” agenda in September — mostly a vague, one-page outline of Republican talking points like “curb wasteful government spending” and “create good-paying jobs,” though it was sprinkled with a few specifics, like a pledge to hire 200,000 more police officers and end proxy voting in Congress, which allows members to cast votes remotely. McCarthy also promises to “confront Big Tech” and expand school choice and a “Parents’ Bill of Rights.”

The one-pager and the Republican campaign for controlling Congress mask what are sure to be larger fights within the Republican caucus around fiscal policy. Many House conservatives are interested in using forthcoming debt limit fights to force Democrats’ hands on cutting entitlement programs.

This hasn’t been a center of the midterm campaigns: The Commitment to America agenda says nothing about Medicare or Social Security. But earlier this year, the Republican Study Committee, the House’s conservative caucus that comprises nearly 75 percent of the House GOP, released a 122-page manifesto that pledged to cut Medicare and Social Security benefits by raising the eligibility age as well as pushing beneficiaries to enroll in private Medicare and retirement plans.

In the Senate, Sen. Rick Scott (R-FL) endorsed the idea of forcing Congress to vote on reauthorizing Social Security and Medicare every five years, and Sen. Ron Johnson (R-WI) backed voting on the entitlement programs annually. Some conservatives and even prominent liberals believe Republicans could use the threat of a government default to force Democrats’ hand in these areas, though, for now, Biden has promised to veto any cuts to the programs. Senate Minority Leader Mitch McConnell has also so far rejected these ideas, calling them nonstarters, but the debate is unlikely to die out.

The Republican agenda for abortion rights also hasn’t been something they’ve sought to campaign on in the midterms but could become a top issue if they take control of Congress. The Commitment to America platform states merely that the Republican Party would “defend the unborn, fight for life,” but the RSC manifesto lists nearly two dozen anti-abortion bills the caucus supports codifying, including a bill effectively prohibiting abortions after about six weeks, and one that would provide 14th Amendment protections to fetuses.

Sen. Lindsey Graham (R-SC) introduced a bill in September banning abortion after 15 weeks. When he introduced a bill banning abortion after 20 weeks in 2021, 45 Senate Republicans joined in support. While anti-abortion groups are pressing Republicans to go on the offensive, it seems for now congressional Republicans are waiting to see how the issue plays out in the midterms.

With two years ahead of the next presidential election, it’s likely GOP lawmakers will be keen to avoid giving Biden more big bipartisan wins, like they did in his first two years, compromising on issues like gun control, infrastructure, and competitiveness with China.

Were Republicans able to retake the Senate, they would be able to vote down Biden’s judicial nominees (including any that come up on the Supreme Court), block them wholesale from consideration, and pressure the White House to pick what they perceive as more moderate options. Republican lawmakers have already signaled that they may not consider Biden’s nominees.

In April, McConnell wouldn’t commit to giving a Supreme Court pick a hearing in 2023 if the Republicans retook their majority. It’s something he’s done before: During the Obama administration, McConnell notably blocked Supreme Court nominee Merrick Garland from ever getting a hearing by arguing that his nomination was in an election year.

What constraints would the party in power face? The House and Senate will ultimately be limited on what they can enact into law over the next two years, as Biden will remain in the White House with a veto pen he promises to use. The Senate will also lack a veto-proof conservative majority, even if Republicans win control of the chamber. But even if it’s unlikely that Republicans manage to pass very conservative bills into law, a Republican-controlled Congress will certainly be able to stymie Biden’s legislative agenda.

Scenario 2: A divided Congress

How likely is it? Congress could be divided two ways — with a Democratic Senate and Republican House, or the reverse, a Republican Senate and Democratic House. The latter is very unlikely; if Democrats perform well enough to hold on to the House, they’re unlikely to lose Senate control. The Senate is a toss-up while the House leans Republican, so the former certainly could happen.

What’s at stake? In the case of a split Congress, the likelihood of more ambitious legislation passing is exceedingly slim. Instead, the two chambers are poised to focus on their own respective priorities, while facing clashes over must-pass bills like government funding and an increase to the debt ceiling.

As House Minority Leader Kevin McCarthy has made clear, House Republicans are prepared to hold any increase to the debt ceiling hostage in exchange for cuts to other programs like clean energy investments and Social Security. In that case, the House and Senate could face an interminable standoff that could put the United States on the verge of defaulting on its debt, a scenario that could have devastating consequences for the economy.

On the House side, meanwhile, a Republican lower chamber would be able to proceed with its many investigations even if the GOP doesn’t control the Senate. As would be the case if Republicans captured the majority in both chambers, they’d have free rein to hold investigations in the House on everything from Hunter Biden’s financial dealings to the Biden administration’s approach to border security, and they intend to use it.

Investigations and impeachment votes can both proceed without the Senate’s approval or the White House’s signature. Some House members have already said they plan to push for the impeachment of President Biden, and have already introduced at least eight resolutions to do that.

Last week, the Atlantic’s Barton Gellman — who was prescient in predicting that Donald Trump would not admit defeat if he lost his reelection bid — published a piece detailing why he thinks a new House Republican majority would vote to impeach Biden within its first year, largely driven by mounting caucus pressure from election deniers who cast Biden as illegitimately elected.

House Republicans could also push for the impeachment of other high-ranking Biden administration officials, including US Attorney General Merrick Garland, Homeland Security Secretary Alejandro Mayorkas, and Vice President Kamala Harris, and hold a series of House investigations next year if they take power, specifically on areas like Democrats’ handling of the southern border, the DOJ, inflation, and the energy crisis. Rep. James Comer (R-KY) is set to lead the House Oversight and Reform Committee and told Politico he also wants to spearhead investigations into the business dealings of Hunter Biden and the origins of Covid-19.

“Part of our constitutional duty is oversight,” said Rep. Jim Jordan (R-OH), a founder of the Freedom Caucus, who’s expected to wield significant influence in a Republican majority, during the Conservative Political Action Conference earlier this year. “We need to know why the Biden administration has taken the intentional position of not having a border.”

What constraints would the party in power face? With Senate control, Democrats could continue to advance more judges and executive branch nominees. The Senate, after all, retains the critical ability to approve judges for district courts, circuit courts, and the Supreme Court with a simple majority. Filling these vacancies will be a crucial priority for Democrats if they’re able to hang onto the Senate, especially after Republicans spent much of the Trump administration attempting to stack the courts in their favor.

“The main difference between a split Congress and one controlled by Republicans completely would be Biden’s ability to fill judicial and other vacancies,” says Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia.

Already, the Senate has confirmed judges at a rapid clip, approving Biden’s faster than any president at this point in their term since President John F. Kennedy. Biden’s nominees have also included a significant number of women, racial and ethnic minorities, and public defenders, all groups that Democrats could continue to prioritize for these roles if they hold the upper chamber. As of early October, there were still 44 judicial nominees pending in the Senate and additional vacancies that did not have nominees yet.

Scenario 3: Democrats keep control of Congress

How likely is it? This is the unlikeliest scenario of the three, according to the polling and election forecasters. The president’s party historically loses ground in the midterm elections, and Democrats hold narrow majorities as it is. But with an unusual political climate — inflation is up, but unemployment is low, while the Supreme Court’s June abortion ruling has animated the Democratic base — they have at least an outside chance to defy one of the most consistent trends in US politics.

What’s at stake: Democrats would have two more years of complete control in Washington (outside of the Supreme Court). The legislative agenda is theirs to set. What do they want to do?

Based on interviews with current and former congressional staff, as well as lobbyists and progressive advocates, two items would almost surely be the subject of legislative debate and possible action: abortion rights and election integrity.

The consequences of the Supreme Court’s Dobbs decision and anti-democratic radicalism within the Republican Party have been the two of the most consistent themes in Democratic campaigns this cycle.

Both would likely require modifying the filibuster in the Senate, presuming (as we safely can) Democrats are still short of a 60-vote supermajority. That is where the difference between a 50-seat Democratic majority and a 52-seat one matters; Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are resolutely opposed to weakening the filibuster, but incoming Democratic senators will have signaled an openness to it on the campaign trail.

Some bills — the Women’s Health Protection Act on reproductive rights, the Electoral Count Reform Act (if it doesn’t pass this Congress), and the John Lewis Voting Rights Act for election integrity — could serve as a starting point for those efforts, if the filibuster were no longer an obstacle. But they are only starting points and far from finished products, as earlier Senate Democratic disagreements about the WHPA and voting rights laid bare.

Democrats would also have a chance to pass budget reconciliation legislation without having to worry about the filibuster (though they would be limited in what they could do).

“The good news is it’s highly unlikely the government is going to shut down and you can still pass a lot of stuff using the reconciliation process,” said Jim Manley, a longtime strategist for former Senate Democratic leader Harry Reid. “Nothing comes easy on Capitol Hill these days, but it helps your odds of getting something done besides continuing to fund the government.”

The contours of any reconciliation bill would depend on the macroeconomic situation. Is inflation still at historic highs? Has the economy entered a recession and sent unemployment soaring? That would dictate, at least in part, how much Democrats might be willing to approve new spending or hike taxes to pay for their spending plans.

The leftover pieces of Biden’s Build Back Better plan would likely be the starting point for any reconciliation bill that the next Congress might decide to pursue in 2023. Democrats passed climate provisions as well as fixes to the Affordable Care Act as part of the Inflation Reduction Act. But entire swaths of the BBB agenda focused on child care, pre-K, and long-term care for seniors and people with disabilities were cut out during the 18-month negotiations that were largely driven by Manchin and Sinema’s desires.

What constraints would the party in power face? The 2024 election looms, with either Joe Biden preparing to run for reelection (more likely if Democrats win a historic victory in the midterms) or a swarm of possible successors jockeying for a position from Capitol Hill. The Senate map in 2024 is much less favorable to Democrats than it was in 2022, which may make Senate leaders reluctant to put their most vulnerable members (in states like Montana, Arizona, and Wisconsin) through a messy legislative debate or force them to take difficult votes.

“If you’re just thinking of it from that perspective, with all those Democrats up for reelection, I question how much of an appetite there’s going to be for a progressive agenda,” Manley said.

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It would also make a difference whether Democrats continue to cling to 50 seats in the Senate, leaving Manchin and Sinema (who are up for reelection themselves in 2024) with an effective veto pen over the legislative agenda. If they can expand their majority to, say, 52, that would give party leadership some wiggle room in deciding which policies to pursue.

Those would likely be difficult debates, on both the particulars of the policy and the prospect of changing the Senate’s rules for good. But progressives argue Democrats would have a mandate to act.

A Democratic victory would reflect “overreach by the GOP in terms of extremism, plus Democrats competently governing in some difficult terrain,” said Mary Small, national advocacy director for Indivisible. “Codifying abortion rights has also been a galvanizing issue for voters.”

Still, progressives hope Democrats feel emboldened if they wake up one morning in November (or December, depending) and learn they are still in control of Congress. They will have passed two major bills (the American Rescue Plan and IRA), weathered soaring inflation, and still earned the trust of voters.

They will also try to learn from the mistakes of the past two years, where they feel a lengthy legislative debate reduced the urgency to get something done as the immediate concerns of voters and lawmakers transitioned from the economic recovery of early 2021 to the inflation crisis of 2022. They are hoping they can tell a more consistent story about how the policies that Democrats are proposing will materially improve voters’ lives.

“Doing nothing is not going to help us make the argument in 2024,” Small said. An unlikely victory in 2022, she said, would call for “repeating their work to call out the extremism of the GOP and to competently deliver on ways that improve people’s lives materially.”

Is the cure for inflation worse than the disease?

Originally published in Vox on October 26, 2022.
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The last year of inflation has disproportionately hurt low-income and nonwhite families — those with the least flexibility in their monthly budgets to absorb higher prices.

Now those same groups could be hurt by economic policymakers’ plan to tackle inflation through interest rate hikes, and in potentially longer-lasting ways.

Last month, leaders at the Federal Reserve predicted that, given their plans to continue raising rates, unemployment would rise from 3.7 percent (or 6 million people) to 4.4 percent by the end of 2023. In plain terms, this means an additional 1.2 million people would lose their jobs over the 15-month period. “I wish there was a painless way to do that,” Federal Reserve Chair Jay Powell had said. “There isn’t.”

Other financial analysts projected even higher unemployment to result. Bank of America predicted unemployment would reach 5.6 percent by the end of 2023, translating to 3.2 million more people out of their jobs. Researchers at the International Monetary Fund (IMF) said in September that unemployment may need to reach as high as 7.5 percent to curb inflation, which would mean roughly 6 million people losing work.

The Federal Reserve raises interest rates to slow down consumption across the economy: As the cost of borrowing rises, the hope is that people buy fewer things, and prices stop spiraling higher. The latest data shows inflation still up roughly 8 percent compared to a year ago, and recent reporting in the New York Times suggests Fed leaders may even raise rates more aggressively into 2023 than they had previously envisioned. The question is whether the Federal Reserve will be able to hit the brakes when they decide they’ve done enough — or whether it will be too late, and the economy will be hurtling downhill toward a recession that the Fed created but can’t control.

“One thing that’s a very open debate and a very important subtext to all the fights is the question of whether the Fed can actually increase unemployment just a little,” said Mike Konczal, the director of Macroeconomic Analysis at the Roosevelt Institute, a left-leaning think tank. “And with every million who lose their jobs, it’s that much harder to reintegrate them [into the labor force] later on.”

Stabilizing the economy, Konczal said, is like mending a garment. “You can pull at the threads, but if it tears you can’t just push it all back,” he said. “That’s certainly what keeps me very nervous, that the Fed is so worried it underreacted last year [to inflation] that now it might overreact.”

Some economic experts and journalists are asking if the current pain of inflation outweighs the suffering of a potential recession, and if there are less blunt tools the federal government could be leveraging instead.

“To have a smaller paycheck due to inflation, is that really worse than having no paycheck at all?” Today, Explained host Noel King asked Minneapolis Fed President Neel Kashkari last week. “There’s not an easy answer,” Kashkari acknowledged, ultimately arguing that unemployment affects fewer people than inflation, and it’s easier for the government to target assistance to those who might be hurt.

But higher unemployment and recessions don’t just affect those who lose their jobs, and the assumption that the government would be willing or even able to provide targeted assistance to those pushed out of the labor market beyond the maximum six months of traditional (and relatively meager) unemployment benefits seems highly uncertain, given how Democrats’ more generous pandemic stimulus policies have been blamed for contributing to inflation in the first place. Experts say the country still lacks the infrastructure to deliver more targeted aid, and with Democrats barely even mounting a defense of their pandemic assistance, whether there’s political oxygen — let alone technological capacity — to help those in a recession remains unclear.

On top of all this, if rate hikes do push millions more people out of work, those who would likely bear the biggest brunt of that job loss and take the longest to recover are the same groups suffering most now from inflation: low-income workers, workers with less education, and people of color.

Missing a “soft landing” means millions more people could lose their jobs

The workers who are most vulnerable to near-term layoffs work in construction and mortgage lending, and sell products like TVs and cars. These are so-called “interest-sensitive” industries, particularly responsive to changes in interest rates and borrowing costs. The next hit would be those working in firms that are particularly exposed to financial speculation — like traders and tech companies built around equity valuation.

The Federal Reserve’s goal is to achieve a so-called “soft landing” — meaning they want to lower inflation without throwing the economy into a recession.

Earlier this year Powell, the Fed chair, explained their goal was to make it harder for people to switch jobs, since job-switching and the fierce competition to hire workers were driving up wages. In this scenario, maybe a business eyeing higher interest rates would post fewer new jobs or decide not to fill vacant roles. Maybe an employee would see the hiring landscape as less friendly and decide to stay put. “The idea is there’s a whole lot of activity happening that we don’t see by just looking at the unemployment rate,” said Konczal, of the Roosevelt Institute. “So in this scenario, where it becomes harder to switch to new jobs, the economy still cools without unemployment going up.”

Konczal says there’s some evidence that Powell’s “soft landing” argument has been bearing out over the past two months — the number of new job openings has slowed, as have the number of workers voluntarily switching to take another job. Wage data expected at the end of October should provide a clearer picture of where things stand.

But many experts are pessimistic that inflation can really come down without driving up unemployment, and say that if the Federal Reserve wants to see a genuine drop in prices it will have to force layoffs in less “interest-sensitive” industries, even if that increases the risk of a recession. Fewer people simply work in interest-sensitive fields like manufacturing than they did decades ago.

“That’s where face-to-face services like hospitality start to take the hit,” said Josh Bivens, the research director at the left-leaning Economic Policy Institute. “Recessions can have big multiplier effects. Layoffs typically start in construction and then radiate onward, and things can get pretty bad if you have a big spiral.”

It’s harder for less educated, low-income, and nonwhite people to find work after layoffs

While some policymakers are trying to figure out if they could reduce inflation while keeping unemployment around 4 or 5 percent, other economists are sounding the alarm on what even this optimistic aggregate figure obscures — the unemployment rate for Black people is generally double that of white people, and for Hispanic people it’s typically 1.5 times the rate.

In one recent study, researchers found that lowering interest rates disproportionately helped the employment prospects for Black workers, women, and those without a high school diploma. It makes sense — if employers are facing increased competition for labor, they may be less likely to discriminate in the hiring process. Relatedly, over the past year, workers with criminal records and workers with disabilities were more in demand than they have been, as employers struggled to fill vacancies.

“It’s just a truism that when bad things happen in an economy, it’s the marginalized people, the people with less power, who are hurt fastest and most,” said Wendy Edelberg, the director of the Hamilton Project, an economics division within the Brookings Institution. “That should be fiscal policymakers’ laser focus, at all times but particularly in a downturn.”

The government is less likely to offer aid to workers who lose their jobs

When the pandemic hit, and millions lost their jobs or had their working hours reduced, the federal government responded with an array of financial policies to ease the pain such as expanded unemployment benefits, three rounds of stimulus checksrental assistance, monthly cash deposits for parents with kids, hundreds of billions for state and local governments, and subsidies for businesses — big and small.

The investments kept millions out of poverty and evictions below historic averages, and are credited generally with helping the economy rebound much faster than following past downturns, and more quickly than other nations that had less robust stimulus policies.

But now Republicans have latched onto that federal aid as one of the top reasons inflation is at its highest point in four decades. They blame the Biden administration for putting too much money in people’s pockets, allowing them to spend too much and drive up prices. Some argue the American Rescue Plan was simply too big, or not targeted enough to those who really needed help. Economists disagree over how much the pandemic policies are to blame but Democrats, notably, are not touting their investments on the campaign trail, as voters cite inflation as a top election concern.

Republicans are expected to win control of the House, and Republican Leader Kevin McCarthy has for months attacked Democrats’ Covid policies for driving inflation. This raises the question: If the economy does spiral and workers lose their jobs or their workable hours, what kind of assistance might they expect to receive in that scenario?

“It’s one of the reasons I’m so worried about the Fed potentially overshooting, that we just won’t do that much to help people since we’re told that helping people too generously is what got us into this mess,” said Bivens of the Economic Policy Institute. “I think that’s wrong, but I’m still totally worried about this dynamic.” Bivens also warned that if Republicans control Congress, it might be in their interest to prolong economic hardship ahead of the next presidential election.

“If the Fed slips the economy into recession, what kinds of tools and political capital will be available? That’s a real concern that we aren’t talking about and aren’t being honest with ourselves,” said Mark Paul, an economist at Rutgers who has argued raising rates is the wrong response to the inflation crisis. “In the pandemic, policymakers reacted in a far better way than they have in our lifetime, where, rather than the economy taking 10 years to get to pre-Covid levels, it essentially took 1.5 years. The narrative now is that the government overshot, but the question is what were the other options and what would those have led to?”

Edelberg of the Hamilton Project said if there is a downturn, she hopes we can get “targeted relief” to those most in crisis, so that it only has modest effects on inflation. “We should do that with eyes wide open — knowing it will boost aggregate demand a little bit and that will be okay because a policy should have more than one objective,” she said.

Edelberg acknowledged the country isn’t exactly positioned to distribute targeted relief — the nation’s unemployment insurance system remains in need of serious upgrades. “We should be improving the system so we can find the people who need to get the money, so we don’t need to do things like send checks to everyone,” she said. “We do not have that infrastructure now because we haven’t really valued it.”

Slow wage growth affects even those who keep their jobs

It took 10 years after the Great Recession for wages to finally start rising, long after unemployment had gone back down. Part of this was fueled by state and local minimum wage increases, but part of it, experts believe, was due to a finally tightening economy.

Workers have enjoyed increased power over the past two years amid the even tighter post-pandemic labor market. Wages have gone up, especially for workers at the lower end of the income spectrum, and especially among those who switched their jobs. In 2021, wages grew by 4.5 percent on average, the fastest rate in almost four decades.

Now that we’re finally seeing broad-based gains in the economy, progressive economists warn that aggressive Fed policy could make those raises disappear. One major risk of a recession is slowed wage growth, which can impact everyone, not just those who lose their jobs. Even modest economic downturns can significantly reduce the chance of employers handing out raises. The Federal Reserve has been explicit that its goal is to reach 2 percent inflation — meaning prices would continue to rise in that scenario, just hopefully more slowly and predictably. But if wages are not also rising, then families will still feel worse off and struggle to afford basic necessities.

“This wage growth angle is, by far, the most important reason why just looking at the rise of unemployment in a recession is a radical understatement of how many workers are adversely affected by recessions,” Bivens wrote in July.

One big fear for inflation watchers is the risk of a so-called “wage spiral” — a scenario where wage increases cause price increases, which in turn cause more wage increases. The concern isn’t baseless; wage spirals have happened before, most notably in the US in the 1970s, but it’s certainly not an inevitability. The labor movement was also much stronger four decades ago — over a third were unionized compared to 6 percent of private sector workers today — giving workers the kind of bargaining power they simply lack now.

Fears of a wage spiral have been dissipating somewhat. Wage growth is still higher than pre-Covid levels but has been slowing down this year. Earlier this month, researchers with the IMF concluded that wage spiral risks “appear contained” for now.

What else could be done?

Some economists and writers have warned that raising interest rates further is unlikely to curb some of the root causes of inflation — such as the war in Ukraine and factory shutdowns — and that inflation would come down next year regardless as supply chains get back on track.

Others say more attention should be on things like investigating corporations for raising their prices far beyond the cost increases for raw materials. The House Subcommittee on Economic and Consumer Policy held a hearing on these concerns in late September, and three Democratic lawmakers introduced a bill in May that would seek to ban price gouging during market disruptions. Dean Baker, an economist at the Center for Economic and Policy Research, pointed to what he called “an extraordinary increase in profit shares in a relatively short period” — rising from 23.9 percent in 2019 to 26 percent in the second quarter of this year.

Some centrist and conservative analysts have framed higher unemployment and a possible recession as simply a necessary if regrettable stage in the life cycle of an economy, almost like a biological reset. “The Fed’s rate hikes will hurt,” said the right-leaning Washington Post editorial board. “That’s unavoidable.”

But “the idea that severe recessions are necessary is absolutely not true,” said Konczal. “That’s the whole point of having a Federal Reserve and macroeconomics. And the idea that recessions are somehow regenerative and healing to the economy is also wrong.”

Whether one needs higher-than-expected unemployment or lower-than-existing GDP to bring down inflation is not really clear. “People are not sure if that’s true,” said Konczal. “It’s a small sample size, and we have only so many economies that you can test.”

Others have argued that fiscal policy — as opposed to the Federal Reserve’s monetary policy — demands more attention to combat inflation. (Fiscal policy refers to a government’s decision to tax and spend, whereas monetary policy is about a central bank’s control over the flow of money and credit.) Fiscal policy can be more targeted, but it can also be difficult to pass through the legislative process, and take far longer to have an economic effect.

For example, Rep. Ro Khanna (D-CA) has called for a “production agenda” that would involve new investments in child care, housing, and community college to bring down prices and train Americans to work. These strategies, if successful, would take years however to trickle out. Sen. Elizabeth Warren (D-MA) similarly argued this past summer that Congress investing in child care would help bring more parents into the workforce, which could counteract inflation, though pouring more money into child care amid a worker shortage, conversely, could also worsen it. In August, Rep. Jamaal Bowman (D-NY) introduced a bill that would place price controls on utilities, food, and housing, bolster the scope of the White House supply chain disruption task force, and authorize better data collection on corporate profiteering. (Price controls are controversial, and led to soaring prices after they were lifted in the 1970s.)

Paul, the Rutgers economist, helped advise Bowman on his bill and told Vox that he believes the Federal Reserve is not taking seriously its dual congressional mandate for both price stability and maximum employment. “Right now the Fed seems to be focused on price stability at all costs,” Paul said. “Full employment be damned.”

Biden is trying to remake the gig worker economy

Originally published in Vox on October 12, 2022.
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The Biden administration has released a long-awaited proposal that could make it easier for millions of truckers, Uber drivers, freelance writers, home care workers, and janitors to be classified as employees rather than independent contractors — a shift that would grant them access to a host of federal labor protections.

The Biden administration’s 184-page proposed rule would change how the federal agency determines who constitutes an employee or an independent contractor under the Fair Labor Standards Act, the 1938 law that determines eligibility for protections like minimum wage, overtime, Social Security, and unemployment insurance.

It’s the latest development in a legal back-and-forth between presidential administrations that stretches back more than a decade. If the rule is finalized, it will almost certainly be challenged in court.

The rule could have ramifications for the so-called gig economy. Companies like Uber, Lyft, and Instacart have argued that classifying their drivers as employees rather than contractors would devastate their business models. Other self-employed workers defend their independent contractor status, and say they prefer the flexibility and autonomy they’re afforded as they seek to balance other priorities in their lives.

If the Biden administration’s proposed rule goes into effect — a big if — it could have significant consequences for workers and businesses alike.

In the waning days of the Trump administration, the Labor Department finalized a new rule that gave extra weight to two specific questions when determining if someone is an independent contractor: how much control does a worker have over their work — can they set their own schedule, work for multiple employers, and reject certain projects? And how great is a worker’s opportunity for profit or loss based on their own initiative or investment? One tenet of independent contracting is that there should be “entrepreneurial opportunity” built into the arrangement.

Organized labor has long held that this sort of employee classification test is too narrow, and that a broader “multi-factorial” test should be used to ensure higher working standards for as many people as possible. Union activists say a better test would give roughly equal weight to at least seven factors, including how important the worker is for the employer’s business, and how long the worker is employed.

The Biden administration agrees. It wrote in its new proposal that it sees reverting back to this broader test as “more consistent with existing judicial precedent and the Department’s longstanding guidance prior” to the 2021 Trump rule.

Rondu Gantt, an Uber, Lyft, and DoorDash driver based in San Francisco who organizes with the campaign Gig Workers Rising, said in a statement, “This rule can help establish bedrock protections for app-based workers like me and give us an important tool to fight for respect and safety on the job. Gig workers deserve all of the rights that other employees have, including the right to organize. This rule can also help protect workers all around the country as gig corporations try to bring their abusive model to the rest of the economy.”

Federal courts have rejected past attempts to make the independent contracting rule more worker-friendly

The lines between contracting and employment have been blurring in the age of remote work, but in general, it’s about how much control an employer exerts over an individual performing work for them, and what legal entitlements a worker can expect as a result. One major legal entitlement employees enjoy is the right to join a union. Another is the right to be paid at least the minimum wage, and for businesses to pay a portion of their Social Security tax. Contractors have no such guarantees, but some prefer the flexibility, and say they’d trade the workplace protections for freedom from a boss.

The federal government has not made adjudicating this debate simple. In 1947, Congress explicitly carved out independent contractors from the National Labor Relations Act’s definition of “employee.”

In 1968, the Supreme Court ruled in its United Insurance decision that the “obvious purpose” of Congress excluding independent contractors from the law was to have the NLRB and courts “apply the common-law agency test” when distinguishing an employee from an independent contractor. Since then, the board and courts have used a 10-factor test to settle the question. Much of the legal debate over the last 15 years has been over whether any of those 10 factors — particularly entrepreneurial opportunity — should weigh more heavily than others.

In 2006, FedEx Home Delivery drivers in Massachusetts sought to unionize with the Teamsters, but after they won their union election, FedEx refused to bargain with the drivers, saying they were independent contractors. The National Labor Relations Board sided with the drivers in 2007, but two years later, the US Court of Appeals for the DC Circuit overturned the NLRB’s decision, pointing to the drivers’ “entrepreneurial potential” — meaning their ability to shape both their work conditions for FedEx and additional clients — as a decisive factor. The appellate judges wrote in their decision that the NLRB “has no authority whatsoever over independent contractors.”

The NLRB chose not to appeal this to the Supreme Court, the only US court whose rulings the NLRB considers as bindingSo when a similar case came back up a half-decade later, the NLRB sided with FedEx drivers again. (This case involved Hartford, Connecticut, drivers who unionized.)

Three years later, in 2017, the DC Circuit rejected the NLRB’s ruling once again, and pointed back to its 2009 decision when it said, “The question before this court was already asked and answered.”

As all this was going on, businesses like Uber that rely heavily on independent contracting continued to expand, and began to look at currying favor with sympathetic politicians who could help codify their legally vulnerable business models. Corporate executives kept a wary eye on the legal battles unfolding in Washington, DC, but few felt real pressure to change their practices amid the uncertainty.

By January 2019, the NLRB, which at this point had a Republican-appointee majority on its five-member panel, formally overturned its 2014 FedEx decision, in a case where a regional NLRB office had found that shuttle drivers who owned and operated franchises of SuperShuttle DFW were independent contractors. This 2019 SuperShuttle decision effectively reverted society back to the old gig economy-friendly independent contractor standard.

Biden’s team has hinted it would be revisiting the misclassification issue

The Biden administration has been building toward action on this issue for years.

Biden’s presidential campaign emphasized supporting and standing with labor unions, and the week of his inauguration he forced out two Trump-appointed NLRB counsels, the first time in more than 70 years a president exercised that power. He then appointed Democrat Lauren McFerran, the lone dissenter in the 2019 SuperShuttle decision, to serve as NLRB board chair, and his administration blocked the Trump independent contractor rule from taking effect.

Biden also nominated Jennifer Abruzzo, a lawyer with the Communications Workers of America, to serve as the NLRB’s general counsel. By August 2021 Abruzzo had issued a 10-page memo laying out her priorities and instructed the agency’s regional offices to prioritize cases that pertain to specific past decisions, including the 2019 SuperShuttle case.

In late December, the National Labor Relations Board announced it would be accepting briefs relating to whether the federal agency should reconsider its standard — again — for determining independent contractor status.

The fierce debate over contracting and the global economy

When the NLRB issued its request for briefs in late December, it asked two main questions: Should the board stick to the independent contractor standard it established in its 2019 SuperShuttle decision? And if not, then what standard should replace it: should the NLRB return to its 2014 standard set by the more union-friendly FedEx Home Delivery decision?

Public interest, government, and industry groups submitted more than 30 amicus briefs and were far from unanimous. While many of the same arguments were recycled from the FedEx and SuperShuttle cases, briefs also featured some new themes, like that misclassification of workers poses an antitrust threat. One brief, filed by the Department of Justice’s antitrust division, argued that “a vague or under-inclusive” employee standard could harm workers, employers, and competition directly.

The Labor Department rule is technically separate from the NLRB request for documents, though it centers on very similar legal questions. Before Tuesday, the Labor Department says, its wage and hour division considered feedback shared by stakeholders in forums held during the summer of 2022.

“Standards and definitions under both statutes are a little different, but it’s definitely the same fruit salad and the two pieces of fruit are right next to each other,” said Michael Lotito, a management-side labor attorney at the law firm Littler Mendelson.

AFL-CIO President Liz Shuler hailed the draft rule on Tuesday for “restoring commonsense rules to determine who is an employee, and making it harder for employers to intentionally misclassify their employees as independent contractors.” In the organization’s filed briefs to the NLRB, it warned against trying to revert back to a standard that couldn’t survive the courts.

An NLRB brief filed by Democratic attorneys general representing 15 states and Washington, DC, argued that the “entrepreneurial opportunity” standard privileged by SuperShuttle is “particularly vulnerable to evasion” by employers.

They urged instead weighting the three factors that form the basis for the so-called “ABC” tests used by many states to determine employee status, a test that makes it harder to classify someone as a contractor. A worker is only considered a contractor under this test if they have relative independence from the business paying their wages, if their work is separate from the type of work the business is typically engaged in, and if they typically do the type of work that the business hired them to do. In particular, “entrepreneurial opportunity” is insufficient to merit contractor status under the ABC test.

Some groups had urged the NLRB to find a new middle-ground position.

Buckle, a digital financial services company that provides insurance and credit options to drivers for ride-share and other gig companies, said the NLRB “should not be afraid to set a precedent allowing both employees and independent contractors.” For example, they said, their data indicates that 80 to 90 percent of drivers on gig platforms work less than 20 hours a week. But for the 10 to 20 percent who drive 20 hours or more per week, and who “are heavily relied upon” by the companies to maintain consistent service levels, there should be clearer pathways to distinguish between them and the more casual workers.

Other groups pushed the Biden administration to adhere to the status quo. One brief representing 12 Republican senators and another brief representing 30 Republican representatives pointed out that the Democratic-backed Protecting Right to Organize Act, which would make it harder to classify workers as independent contractors, failed to pass in the Senate. “Congressional opposition to the change is, in part, because many Members believe that the current approach is best adapted to a twenty-first century economy,” the GOP officials wrote.

The US Chamber of Commerce, the largest business lobby, also warned of government overreach. There is no reason for the NLRB to depart from its SuperShuttle standard, the Chamber wrote in its brief, and to do so “is a plain instance of its policy reach far exceeding its legitimate regulatory grasp.”

Some groups representing freelancers and small businesses also urged the NLRB against revising its contracting standard, worried they would lose their prized independent status. They pointed to government surveys, like a 2015 GAO report that found more than 85 percent of independent contractors and those self-employed appeared content with their status. In 2018, the Bureau of Labor Statistics reported 79 percent of independent contractors preferred their contracting arrangement over a traditional job.

The Small Business and Entrepreneurship Council issued a statement on Tuesday calling the Labor Department’s rule “out-of-touch with the modern economy and how people want to work.”

Given this opposition, a court challenge to the rule seems inevitable. Lotito, the labor lawyer, told Vox he thinks the Biden administration’s new rule will fail in court, and pointed to his firm’s successful challenge against the Biden administration’s withdrawal of Trump’s worker classification rule. “My overall sense is that they really did not pay any attention to the [Texas] District Court’s decision; there’s no explanation that I’ve read so far that explains how the Trump rule has interfered with their ability to enforce their mission,” he said. “From an Administrative Procedure Act perspective, I also think this is a straight flop.”

However, no legal challenge can be mounted against the rule until it is finalized. The Department of Labor is currently soliciting public comments on its proposal, and the final rule will likely not be issued for another few months.

The new abortion rights spokesmen: Dudes, dads, and plumbers

Originally published in Vox on October 11, 2022.
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At 11:30 am on June 24, less than an hour after the US Supreme Court issued its landmark ruling overturning Roe v. Wade, Dave Portnoy, the controversial founder of Barstool Sports — a site dubbed the “Bible of Bro Culture” — posted a video to his 2 million followers on Twitter.

“We are literally going backwards in time,” he said in a self-described emergency press conference. “It makes no sense how anybody thinks it’s their right to tell a woman what to do with her body.”

“The woke left, the liberals, they’re crazy. They’re insane people,” Portnoy added. “Yet, I end up having to vote for a moron like Biden because the right is gonna put Supreme Court people in who are just ruining this country, taking basic rights away.”

The video went viral. It was a harbinger of how abortion rights would upend American culture and politics, and become a central component for Democratic advertising in the midterm campaign cycle.

“I’m no fan of Barstool, but the Dave Portnoy video that came out after the Dobbs ruling was surprising to me, and pointed to this new segment of the electorate that I hadn’t been thinking about,” said Josh Yazman, a political data scientist at Civis Analytics, a Democrat-aligned research shop.

Yazman is not alone. Over the last three months, as the threats to reproductive rights grew clearer, researchers, activists, and political strategists have started to think more intentionally about how best to target male voters with abortion rights messages. When Roe was the law of the land, advocates could focus their energies on challenging unconstitutional abortion restrictions in court. Now, reproductive rights battles will be shifting to the ballot box — meaning what male voters think about abortion suddenly matters a whole lot more.

Even for men who self-identify as pro-choice, their support for a woman’s right to choose has historically been fairly muted, as guys tend to treat reproductive rights as a “women’s issue” that’s best left for women to lead on. Researchers have found that among those men who have considered speaking out, many decide against it, fearful of saying the wrong thing or claiming connection to an issue that’s not sufficiently theirs. Even in the US Senate, male Democrats who support abortion rights tend to wait for their female colleagues to chart their federal action plans, wary of bad optics and criticism.

Eight in 10 Americans support legal abortion, “but until this summer it’s felt very controversial to people still … and I think the people that we show [in ads] talking about supporting abortion care impacts that,” said Dina Montemarano, the research director for NARAL Pro-Choice America. “I think people on our side are finally realizing that, and wanting to show that variety … [that] the majority does include people who look and feel and act and think quite differently, and that’s good.”

As a result, campaigners have been experimenting with a host of characters not traditionally used in abortion messaging: young “dudes” talking about reproductive freedom as they fix a broken pipe, or male members of law enforcement talking about the importance of abortion access for public safety. There are ads featuring brothers, boyfriends, male doctors, and male faith leaders. In Minnesota, a recently formed grassroots group called Dads on the Doors is mobilizing fathers to stand up for their daughters’ abortion rights.

“No exceptions for rape? No exceptions for incest? $100,000 fines and jail time for doctors?” asked a white man identified as a “lifelong Republican” in a Beto O’Rourke ad that ran in mid-September. “I mean, this is a free country. We need a governor who gets that.”

Sometimes, like in the Beto ad, the particular message the male character is expressing is not so different from one featuring a female lead or targeted to female audiences. But in other cases, researchers are testing messages they say seem to resonate especially with male audiences — for example, narratives about men stepping up to protect women — even if, in some cases, those themes give women viewers pause.

Will Bunnett, a political strategist with the progressive digital brand agency Clarify, has been designing ads this election cycle for clients who support abortion rights.

“The hypothesis is that men are not super good at empathy or understanding and are more likely to listen if we sort of make it about them,” he told Vox. “So we’re looking to tap into male identity. And some of the ways that are proving most effective make me a little uncomfortable personally, but I’m already sold on this issue, and we’re trying to target the people who need to see something and get on board.”

For men and abortion rights, the messenger matters

In early August, Kansas voters cast their ballots decisively against a measure that would have allowed state lawmakers to further restrict access to abortion. It was the first time abortion rights were tested at the polls following the Supreme Court’s Dobbs decision, in a state where Republicans outnumber Democrats roughly two to one.

Ads sponsored by Kansans for Constitutional Freedom, the coalition that successfully defeated the amendment, featured characters including a male pastor, a male physician, and a male narrator warning of government overreach.

Ashley All, who served as communications director for the coalition, told Vox that they purposefully featured different messengers in their ads, even as the messages delivered —protecting the constitutional rights of women to make their own decision free of government interference — remained largely the same.

“Not only do you do a lot of research to figure out the best message to resonate with the broadest set of voters,” she said, “you look at who influences those voters that you need to move.”

In the weeks following Dobbs and the Dave Portnoy video, Yazman started experimenting with different characters in Civis’s pro-choice message testing and noticed that ads featuring “bros” — generally men born after 1981 — were resonating with different kinds of voters. “Traditionally pro-choice ads include older white women that care most about the issue, or young moms sitting in their kid’s playrooms,” he explained.

One ad test compared a 40-year-old white woman named Shannon who had an abortion after she had her first kid with a younger “bro” named Conrad sitting in his bedroom talking about the women he was afraid for in his life. “The bro’s overall appeal was similar, but a lot stronger with men, Republicans, and younger voters, while the mom did better with more traditional pro-choice audiences,” said Yazman.

Typically, Bunnett said, it doesn’t matter too much if the demographic of an ad messenger matches the demographic of the intended audience. With abortion, however, his team has noticed the opposite dynamic: Matching demographics appears to be a much more significant factor in driving an ad’s effectiveness.

Oren Jacobson, founder of Men4Choice, said they see men talking to other men as really key for mobilizing men as “stakeholders” on abortion rights, not just occasional “beneficiaries.”

“It’s harder for someone who is not a man to convince another man that abortion is their issue,” he said. “I think we have to reckon with the reality that a lot of men have heard women talk about abortion for decades and have largely ignored those voices.”

Certain abortion rights messages resonate more strongly with men

Given that many men feel hesitant to engage with abortion rights, advocates say providing them with specific ways to connect can increase their confidence.

“Men might be afraid to speak out because they think they’ll do it wrong, but when they see a man talking about it and doing so in a way that is very supportive, very clear about where they stand, very clear about why they’re fighting, that’s really powerful,” said Montemarano, the research director for NARAL, who led a deep dive into abortion messengers in 2020.

One particularly resonant ad category NARAL found is a “journey story” — an ad featuring a man explaining their path from not thinking abortion was important to realizing that their constituents or loved ones were being affected and they had to get involved. “That is incredibly powerful for men to hear because many of them are in some phase of that journey right now,” Montemarano said.

Another effective strategy: messages that “define the opposition” in a negative, repellent light. Bunnett said they’ve seen that some of their better-performing abortion rights ads with men have taken the approach of emphasizing that men who want to ban abortion are uncivilized, backward, mean, and rude. “Rather than trying to convince you that you’re such a manly man for thinking carefully about abortion, we’re saying, like, you just need to know you’re not the caveman over there.”

Jacobson pointed to the “Call Bullshit” campaign Men4Choice launched, which encourages men “to call bullshit on the assholes who are using their power to control someone else’s body,” he said. “We have to normalize that it is not okay for these guys to do that, and part of the reason it’s seen as okay is because guys like us just let it go.”

A third message that’s proven effective with men in particular is freedom from government control, which allows more conservative men to identify with the abortion rights coalition, even if they personally hold reservations about terminating pregnancies.

The value of freedom and the ability to make decisions without government interference “is something that men resonate quite emotionally with,” said Montemarano. It’s not that women don’t care about freedom, she added, but that’s always been an “easier and quicker” way for men to connect with the issue, whereas women tend to connect initially via other routes.

In Kansas, All told Vox their “government mandate” ad in particular resonated most highly among male viewers.

Harnessing men’s motivation to help women in need

Researchers studying which abortion messages seem to motivate men most effectively have noticed a fourth category, too: Men resonate with messages about caring for their loved ones and generally helping women in need.

Bunnett says some of their most effective ads have tapped into a “hyper-traditional sense of masculinity,” like themes about saving damsels in distress. “An ad might feature a guy saying, ‘Hey, you might not be able to get pregnant, but this is really, really important to the women in your life and they need you to step up,’” he said.

Bryan Bennett, a pollster with Navigator Research, a group that works to provide messaging guidance to progressives, said he typically sees men as notably less receptive to any given abortion message, by about 10 points, with the exception of messages about forcing women to carry to term under terrible circumstances.

Montemarano’s team also found this same pattern — that men are “powerfully motivated” by messages of supporting women. The fact that men often only seem to care about women’s rights as it pertains to their wives and daughters has long been a source of frustration in pro-abortion rights and feminist circles, and NARAL directly addressed the concern that such messages might reinforce patriarchy in a report published in 2021.

“We recognize that, as advocates, men’s desire to support women can sometimes feel paternalistic, disempowering, or condescending. It is certainly true that its manifestation in our society has often been all of those things,” their report read. “Yet we would not want to live in a world in which people did not want to support and care for one another. In our communications moving forward, we need to explore ways to effectively harness men’s desire to support women within a broader message framework that supports a woman’s agency, rather than in opposition to it.” NARAL added that they believe this is “eminently doable.”

Jacobson of Men4Choice said they’ve also seen pro-abortion rights language that can feel paternalistic. “The way a lot of politicians talk about it, it’s through the lens of their wives and daughters, and in our culture change work, we try to take that good intention and instinct and shift it, so it shouldn’t be that you have to know someone who might need an abortion to care about this,” he said.

But he distinguishes between “culture change” work, or challenging and changing societal norms and expectations, and immediate electoral messaging ahead of the November elections.

“I think advertising for a mail piece or a digital ad right now designed to get someone to vote in November necessarily should be different than what someone focused on long-term culture change is saying,” he said, and cited as an example the difference between saying a “woman could be criminally punished” for an abortion versus “a person could be criminally punished.” The former, at least in 2022, is more effective at motivating concern among voters.

In the coming weeks, Men4Choice and Planned Parenthood plan to jointly run ads targeted at young Black men in Atlanta. Planned Parenthood approached Men4Choice out of recognition that their own brand might be less resonant with those voters.

Yazman said that field research Civis conducted in September on millennial and Gen Z men found these groups were “pro-choice but persuadable” — meaning young men were open to abortion restrictions, and could be moved to support them if exposed to certain messages. This highlights the need for abortion rights advocates to reach young men before anti-abortion messengers do.

“I think the Dads on the Doors in Minnesota is great, but I think we also have to talk to 18-, 19-year-old men, so that when they get to that fatherhood stage of life they’ve already been thinking about abortion rights,” Jacobson said. “The older you get, the harder it is to shift your views.”

Philadelphia elected a progressive prosecutor twice. The state government wants to fire him anyway.

Originally published in Vox on October 5, 2022.
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Weeks before the midterms, a political drama is unfolding in Pennsylvania: A state committee to investigate crime in Philadelphia could ultimately impeach the city’s twice-elected district attorney Larry Krasner, who ran on a platform of reducing mass incarceration and the criminalization of poverty.

Republicans say their investigation is about seeking solutions for rising crime, but for the past five years, they’ve been eager to connect their anti-Krasner rhetoric to the broader Democratic Party — a narrative that has fueled backlash against progressive prosecutors in other cities and painted Democrats as anti-police. Pennsylvania’s investigation started just weeks after San Francisco voters recalled their progressive prosecutor Chesa Boudin.

Krasner’s allies see the probe as a cynical stunt by a Republican-controlled legislature that both underfunds Philadelphia and blocks its leaders from passing tougher gun laws. They also view it as a dangerously anti-democratic effort to overturn the will of Philadelphia voters — akin to the effort to overturn the city’s votes for Biden in the 2020 election.

The committee, dubbed the Select Committee on Restoring Law and Order, was voted into existence by nearly all House Republican lawmakers in June. It’s already embroiled in one legal battle with Krasner, who has objected in court to their sweeping request for documents. To impeach Krasner, the committee might have to demonstrate evidence of misbehavior or corruption — not just ideological disagreement — and that could end up being the subject of yet another court fight.

The backdrop to all of this is the midterm elections. In Pennsylvania, there’s a tightly contested US Senate race where the Republican candidate, Mehmet Oz, has made crime the focus of multiple attack ads. The governor’s race also has implications for 2024 and beyond: The current Republican nominee, Doug Mastriano, led the effort to overturn Pennsylvania’s votes for Biden two years ago.

Mastriano, who is now trying to defend himself against accusations of being anti-democratic, has become one of the few high-profile GOP officials to defend Krasner against impeachment, calling the inquiry “political grandstanding.” And dozens of Democrats, including Democratic lieutenant governor candidate Austin Davis, voted with Republicans in September to hold Krasner in contempt for refusing to comply with a subpoena. (Krasner argued in state court that the committee’s subpoena was illegitimate and illegal.)

Some other Pennsylvania Democrats are seeking to distance themselves from the controversy. Democratic Senate candidate John Fetterman, who has been running ads about “funding the police,” has not weighed in, and gubernatorial candidate Josh Shapiro’s campaign also declined to comment.

The committee pledged to produce a report with its findings and recommendations by “the fall” — coinciding with the 2022 midterms.

A pioneering progressive prosecutor confronts rising crime in Philadelphia

Krasner, who was first elected in 2017, was one of the first people to run as a self-described “progressive prosecutor” — part of a growing national movement of candidates who emphasize that the discretionary decisions made by a city’s chief attorney can have a profound effect on mass incarceration.

Since taking office, Krasner has stopped seeking cash bail for some low-level offenses, a move to reduce jail time that some defendants have to serve simply because they’re low-income. His team also stopped prosecuting marijuana cases and most prostitution cases against sex workers, and heavily deprioritized retail theft — something that’s been on the rise in the city over the past two years. His office touts statistics on his website that Krasner has imposed over 29,000 fewer years of incarceration compared to the previous district attorney.

Amid rising crime rates and increasing concern about crime, a growing backlash, led primarily though not exclusively by Republicans, has depicted reformers like Krasner and Boudin as threats to public safety. Researchers have not found a link between progressive prosecutors and local crime rates, and in fact found that declining to prosecute a misdemeanor can significantly reduce the likelihood of future crime.

If more DAs like Boudin and Krasner are booted out of office, reformers fear other prosecutors may lose interest in bucking old “tough on crime” playbooks.

While some of Philadelphia’s crime uptick began prior to Krasner taking office, the situation has gotten worse since the pandemic. Philadelphia’s murder rate went up 58 percent between 2019 and 2021. There were a record 499 homicide victims in 2020, followed by another record-breaking 562 homicides in 2021. The number of murders this year — 409 as of October 3 — is slightly less than this time last year, but still the second-highest the city has seen by this date in 15 years.

Gun violence has also been increasing statewide and nationally since the pandemic started, including in suburban and rural areas. One analysis from the Council on Criminal Justice, a research and policy group, found a 30 percent increase in homicides across 34 US cities in 2020 compared to 2019, and another independent crime analysis found murder up 37 percent across 57 localities.

Jane Roh, a spokesperson for Krasner, noted that of the five largest cities in Pennsylvania, Philadelphia’s increase was similar to Pittsburgh (where homicides were up 53 percent) and smaller than Reading (117 percent) and Allentown (71 percent). Compared to the other 12 Pennsylvania counties of at least 300,000 residents, Philadelphia’s increase ranked sixth.

Still, the level of violence is hard to hand-wave away with comparative statistics, and because Philadelphia is so large, percentage increases can obscure what are many, many more deaths. Just last week, five high schoolers in Philadelphia were shot, one fatally, after an afternoon football scrimmage, and other crime, like carjackings, has spiked.

Critics of the district attorney allege that his policies have contributed to the rise in crime by sending a message that laws in the city won’t be enforced. They point to declines in conviction rates for illegal gun possession: Between 2015 and 2020, the share of illegal gun possession cases resulting in conviction fell from 65 percent to 42 percent, a decline driven primarily by cases being dismissed by judges and withdrawn by the district attorney. The district attorney said that some offenders went through diversion programs instead of facing jail time and that police brought forward weak cases that were too difficult to win in court.

Krasner’s supporters stress that the lagging performance of police should get more attention. From January 1, 2017, through September 18, 2022, Philadelphia police made arrests in less than 40 percent of homicide incidents in the city and just 18 percent of nonfatal shootings. The district attorney cannot charge those who have not been arrested.

Krasner has argued more energy should be focused on improving the low clearance rate for shooting cases rather than on trying to remove illegal guns from the streets. (In February, the Philadelphia Police Department launched a new division focused on investigating nonfatal shootings.) Roh, Krasner’s spokesperson, also noted that the DA supports a host of enhanced gun safety regulations, measures opposed by Republicans on the state level.

Even amid the rise in crime, Krasner easily won his reelection in 2021, earning more than twice as many votes as his Republican challenger, Chuck Peruto — who campaigned on getting tougher on crime. While Krasner faced a heated primary, beating a prosecutor backed by the city’s police union, he barely campaigned in the general election against Peruto and declined to debate him. Democrats outnumber Republicans in Philadelphia seven to one, and the city hasn’t had a Republican DA in over three decades.

Krasner has been a target of attacks for Pennsylvania Republicans for the last half-decade, but the impeachment inquiry is a new escalation. The investigation began in June after three House lawmakers who live in districts far from Philadelphia circulated a memo seeking their colleagues’ support for impeaching Krasner for “dereliction of duty.”

About two weeks later, 110 Republicans and four Democrats in the Pennsylvania House voted against 86 Democrats to establish the committee, which has subpoena power. In July, Pennsylvania’s Republican House speaker appointed five members to the committee, including two Philadelphia Democrats who had voted against the inquiry; one, Danilo Burgos, told the Philadelphia Inquirer he only agreed because he was told they’d be investigating crime statewide. But Republican lawmakers voted against an amendment supported by Democrats that would have expanded the committee’s scope to study statewide violence.

Michael Straub, a spokesperson for Pennsylvania’s House speaker, defended the narrow focus. “I mean, Philadelphia is such a crucial place in the state,” he told Vox. “So much of what makes Philadelphia relevant to the rest of the country and rest of the world is its population and culture, so making sure Philadelphia is safe and vibrant and attracting people is important to everyone regardless of political party.”

Republicans are now trying to claim this is not necessarily about impeachment

Despite the unambiguous origins of the committee, Republicans are now claiming that their work should not be assumed to be about impeachment. The committee “has a wide-ranging scope and is much broader than a mere impeachment inquiry,” said Jason Gottesman, House Republican caucus spokesperson, when Vox asked about the anti-democratic implications of the probe.

Unlike other states, Pennsylvania voters cannot recall elected officials, and there have been only two successful impeachments in state history — a state supreme court justice in 1994 and a district judge in 1881. The state constitution says “the Governor and all other civil officers shall be liable to impeachment for any misbehavior in office,” although Krasner’s office argues this language applies only to elected state officials, not local politicians.

Some reports have suggested the “any misbehavior in office” language is vague enough to include general discontent with how an official approaches their job. Bruce Ledewitz, a Duquesne University law professor who teaches a course on the Pennsylvania Constitution, told Vox that the select committee would need to find actual evidence of corruption or misbehavior to impeach Krasner. Simply disagreeing with his policies would not be enough.

“The idea that the constitutional language is so broad that it could mean anything, I don’t think that’s the case,” Ledewitz said, pointing to the statutory removal provisions, and contrasted them with the looser standards of impeachment at the federal level. If the Pennsylvania legislature does move to impeach Krasner, Ledewitz said they’ll need to prepare for it to be challenged in court, like it was in Pennsylvania in 1994.

In August, the select committee issued its first subpoena of Krasner, requesting documents related to his policies including on bail and plea bargains. They also asked for documents on prosecuting police officers, and the “complete case file” of Ryan Pownall, a former Philadelphia police officer who faces third-degree murder charges for killing a Black man in 2017. Pownall is set to go on trial in November.

Krasner allies say the select committee’s interest in these case files reveals they are more interested in shielding police from accountability than protecting victims of crime. Vox asked the Republican chair of the select committee, Rep. John Lawrence, why these documents were being prioritized in the investigation. Gottesman, answering on Lawrence’s behalf, pointed to three press releases from Lawrence that did not directly address the question.

In a letter sent to the committee in August, Krasner’s lawyers asked the committee to withdraw their requests and end the investigation, and later petitioned a state court for relief. They argued in legal filings that the probe is illegitimate because it serves no proper legislative purpose and Krasner has committed no impeachable offense. They also said that impeaching Krasner would violate the constitutional rights of the Philadelphia voters who elected him, that documents for the pending Pownall trial are privileged, and that it would be illegal to disclose grand jury materials.

The select committee — which asked for the “complete case file” of a pending murder trial, including documents “related or referring to the investigative grand jury proceedings” — denies it sought any privileged materials. The committee’s interim report issued September 13 noted that the district attorney’s office could withhold privileged materials if it provided a list of them.

Krasner’s lawyer, Michael Satin, told Vox that they would not produce such a log when the request was “patently improper” and an abuse of power by the legislature. “Courts, not legislative bodies, are best equipped to resolve disputes involving a subpoena, especially one that involves an inquiry into a pending criminal case,” said Satin. The select committee has asked Krasner at least twice in writing to withdraw their court petition.

But state lawmakers — including Democrats opposed generally to the impeachment inquiry — were not happy that Krasner resisted the legislature’s subpoena and voted 162-32 to hold him in contempt. Republicans like Rep. Lawrence claimed Krasner “willfully neglected” the subpoena, though Krasner’s team pushed back, saying they followed the law by registering their objection with the judiciary, in addition to writing their objections to the committee.

Rep. Jared Solomon, a Democratic state rep from Northeast Philadelphia, told the Philadelphia Inquirer he saw Krasner’s resistance as “exactly the same” as Steve Bannon, who was convicted of contempt for failing to comply with congressional subpoenas into the January 6 investigation.

About a week after the contempt vote, Krasner’s team began providing some records to the select committee — primarily those that were already available online on their website. If Krasner’s team had provided those documents to the committee initially and only objected to the files related to the pending murder trial, it’s unlikely as many Democrats would have held the district attorney in contempt, but Krasner’s team didn’t want to grant legitimacy to what they saw as a sham investigation.

“This impeachment investigation is absolutely just a witch hunt. I’m on the judiciary committee and I have voted at every instance to not proceed with this, but I’m a lawyer and so is District Attorney Krasner, and legal subpoenas are legal subpoenas,” said Rep. Emily Kinkead (D-Pittsburgh), who voted to hold Krasner in contempt. “While I understand everything the legislature does is inherently political, we have the right to issue subpoenas and if he believed there were privileged items that were requested, he should have created a privileged log, to say, ‘These documents exist but you’re not entitled to see them,’ but he didn’t even do that.”

Impeachment looks less likely in the Senate than in the House

In order to impeach, a majority of members in the Republican-controlled House would need to vote in favor, and then two-thirds of the state Senate would need to, too. That means 34 senators would need to vote in favor of impeachment, and there are 28 Republicans currently in the chamber.

Despite dozens of Democrats voting to hold Krasner in contempt, it still might be hard to get six on board for impeachment, especially when the specter of Republicans trying to throw out Philly votes two years ago still looms so large.

“Bad things happen in Philadelphia,” Trump proclaimed in the fall of 2020, in an attempt to gin up distrust about election integrity in Pennsylvania’s biggest city. Following the 2020 election, Trump put on blast a Republican election commissioner from Philadelphia who found no evidence of voter fraud, insisting “he refuses to look at a mountain of corruption & dishonesty.”

Krasner performed especially well in his reelection campaign in areas with high levels of gun violence, giving the district attorney confidence to say his progressive policies were backed by a mandate from the people most affected.

Progressive allies of Krasner have been organizing over the past few weeks to send a message to Democratic state officials that voting to impeach Krasner would be aligning themselves with Republican election deniers.

“We’re not just going to roll over and pretend that there’s not an attack on Philadelphia, on Black and brown people,” said Tonya Bah, a Philadelphia activist who leads Free the Ballot. “For Democrats to side with Republican leadership to harm someone that we elected, it is very disheartening, and quite frankly, we have to draw a line in the sand.”

On September 23, the Working Families Party, a union-backed group that helps elect progressive candidates locally and nationally, announced it would be rescinding five midterm endorsements of Democratic state reps who had voted to hold Krasner in contempt.

Vox contacted the five Democrats who lost their WFP endorsements. Two elected officials from Pittsburgh — Reps. Jessica Benham and Emily Kinkead — said they didn’t even know they had received the WFP endorsement but were not planning to vote for impeachment.

“I voted to hold the DA in contempt because legislative bodies have jurisdiction to issue and enforce their own subpoenas,” Benham said. “That the DA responded in part to the subpoena after the contempt vote, which carried no actual penalty, demonstrates that he could have responded in part prior to that vote, but chose not to for reasons unclear. Nevertheless, I will be voting against impeachment if that charge comes before the House, as I respect the will of the voters.”

Rep. Danielle Friel Otten of Chester County also said she views her subpoena vote as very different from any vote to remove someone from office. “For me, the vote to find DA Krasner in contempt of the House was about equal application of the law,” she told Vox. “This was a procedural vote about responding to a lawfully issued subpoena. Larry Krasner was duly elected by the voters of Philadelphia, and impeachment requires a high bar. To this point, I’ve seen no evidence of any impeachable offense.”

Vanessa Clifford, the mid-Atlantic political director for the Working Families Party, told Vox both Benham and Kinkead had submitted candidate questionnaires applying for WFP’s endorsement, and were both personally notified that their state committee had endorsed their reelection campaigns.

Rep. Rick Krajewski, a Democratic state House lawmaker representing West Philadelphia who voted against holding Krasner in contempt and was disappointed by the nine Philadelphia state reps who did, said Krasner is an easier “punching bag target” than, say, local judges, because there’s only one of him. Pinning the city’s problems on the district attorney is also easier for state Republicans to do than investing in Philadelphia communities, schools, workers, and parks and recreation.

There’s no doubt that Philadelphia has real issues with people feeling safe, Krajewski added. “But as a result, we’re seeing a return to ‘tough on crime’ rhetoric, to overpolicing, and in my opinion, that is the wrong response to this moment,” he said. “We’ve seen that during the Reagan era, the Nixon era, an investment in crackdown does not work. I think for myself and other Democrats who support Larry, we’re having real conversations with our community about what this could mean for our democracy and how we can stand united.”

What Republicans would do if they win back Congress

Originally published in Vox on September 14, 2022.
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With the midterm elections less than two months away, Republicans are strongly favored to win a majority of seats in the House. Democrats, for now, are expected to keep control of the Senate, though some of the contests — particularly Wisconsin, Georgia, and Nevada — could be particularly close.

With President Joe Biden’s veto power, the implications of Republicans reclaiming one or both chambers in Congress will have more to do with blunting a Democratic policy agenda than swiftly enacting conservative priorities.

But if they do win power, what do Republicans want to do with it? If you’ve had some trouble figuring that out, you’re not alone. It’s been confusing. Different factions within the party are competing for the agenda-setting mantle, and it’s been a long time since Republicans wrote a unified policy and governing platform. When they tried at their 2020 national convention, they ended up scrapping their plans. Instead, they kept their 2016 platform, and avoided an anticipated fight with Donald Trump over a new one.

Even the right-leaning magazine National Review observed recently that “Republicans are doing little to explain what they would have the government do differently if they took power.” There has been a mix of proposals introduced with varying degrees of specificity, and previews of the intraparty fights we might see over the next few years.

It’s always easier for a party to appear united when they’re in the minority, but if Republicans reclaim power, they will have the much harder task of needing to unite around a real agenda. That’s when they’ll have to make real decisions on issues like abortion bans, civil rights, rollbacks of environmental protections, and welfare subsidies.

Here are the many competing proposals for the GOP’s policy vision — and what they tell us about what might come next.

Rep. Kevin McCarthy’s forthcoming “Commitment to America”

House Minority Leader Kevin McCarthy has been preparing for a world where he becomes majority leader, and has been taking cues from Newt Gingrich, who in 1994 helped write the “Contract with America” that House Republicans used to successfully return to power. When the GOP retook the House in 1994, they worked swiftly to bring votes on their agenda.

Gingrich has been advising Republicans over the past year, suggesting they focus on “kitchen table” issues, on being “happy warriors” who are enthusiastic about the future of the country, and on doubling down on government oversight and accountability, like election security and Biden investigations.

McCarthy is even calling his forthcoming platform the “Commitment to America” — a name intentionally resonant of Gingrich’s 1994 plan. The Commitment to America, which has been in the works since last June, is expected to be formally announced September 19 in Pittsburgh, according to Axios.

Much of the platform will sound familiar to anyone who has read news headlines over the last few years, with bullet-point themes around economic conditions, crime, race, and gender. Details are sparse, but ideas it’s expected to contain include fighting inflation by ending “Build Back Better” federal spending, reimposing work requirements to incentivize labor force participation, and lowering gas prices by increasing American energy production.

School-related issues include a “Parents’ Bill of Rights” and expanding school choice.

Republicans also plan to target Big Tech and illegal immigration, and to increase funding for police and the military. Holding the Biden administration accountable for “mismanagement” and supporting gun owners and anti-abortion groups are additional listed priorities.

While the platform takes aim at rising health care premiums and a “Democrat socialist drug takeover” that the GOP says could lead to fewer treatments, the McCarthy agenda notably excludes any language about repealing Obamacare — a priority for the first eight years of the law’s existence.

Mitch McConnell has resisted any specific agenda

While McCarthy is looking to 1994, Senate Minority Leader Mitch McConnell is urging his party to instead heed the playbook from 2014, when Republicans seized midterm control of the Senate chamber after campaigning primarily just against President Barack Obama.

He thinks the Commitment for America-style bullet points are too politically risky and create too many opportunities for Democrats to attack the Republican Party. Last fall, McConnell rejected pleas from colleagues and donors to release a legislative agenda, preferring instead to keep the midterms as a referendum on the White House incumbent.

McConnell suggested that whoever is the 2024 Republican nominee for president can lead the process of crafting the party’s next agenda, in part out of recognition that Biden holds veto power until then. Still, not everyone in his chamber agrees; Sen. Lindsey Graham came out this week with a bill banning abortion after 15 weeks, sending a clear, if expected, signal about what he’d push for if his party takes power.

Some Republicans are getting specific

The House’s conservative caucus, the Republican Study Committee, and two presidential hopefuls have also entered the fray in releasing policy priorities.

In June, the RSC released a 122-page manifesto dubbed the Blueprint to Save America, with a long list of conservative ideas. While not a formula campaign document per se — it’s billed as an alternative budget to the one put forth by Democrats — it gives much clearer indications as to where House Republicans might go if they take power, as nearly 75 percent of House GOP members are in the RSC.

For example, while the Commitment to America platform states merely that the party would “defend the unborn, fight for life,” the Blueprint to Save America lists nearly two dozen anti-abortion bills the caucus supports codifying, including a bill effectively prohibiting abortions after about six weeks, and one that would provide 14th Amendment protections to fetuses.

Likewise, while the Commitment to America platform includes preventing transgender girls from playing school sports with other girls, the RSC platform lists seven specific anti-trans bills the caucus supports codifying, including one that would create a new criminal offense for providing gender-affirming health care to minors.

While Republicans may realize that campaigning explicitly on the items in the Blueprint to Save America creates more political vulnerabilities than the vague ideas in the Commitment to America, the RSC document offers more concrete clues as to what exactly conservative lawmakers are looking to do if they gain power.

Florida Sen. Rick Scott, a first-term senator and chair of the National Republican Senatorial Committee, in March released his own 12-point “Plan to Rescue America” — billed as an agenda for the House and Senate if Republicans take power in November. Like the other aforementioned proposals, it’s a mix of cutting taxes, fighting Big Tech and crime, and pushing cultural fights in schools, though some of its components seem more geared toward standing out in a future Republican presidential primary. For example, Scott recommends completing the border wall and naming it after Donald Trump, putting “America First,” and fighting socialism. (“Socialism will be treated as a foreign combatant which aims to destroy our prosperity and freedom,” Scott’s platform proclaims.)

Former Vice President Mike Pence also released his own 28-page policy proposal in March, dubbed a “Freedom Agenda.” It’s gained little traction among midterm candidates, but that probably wasn’t really the point, as analysts suspect he might use it for himself if he decides to run for president in 2024.

Centrists are pleading for a different path

Some political analysts and policy wonks are pushing for moderation and compromise if Republicans take control — likely a tough sell for many conservatives who are loath to give Biden any more bipartisan wins ahead of the 2024 election.

Last month, leaders with American Compass, a conservative think tank that bills itself as pro-worker and pro-family, penned a New York Times op-ed urging the GOP, if it takes power next year, to consider bipartisan dealmaking on industrial policy with China, apprenticeships and non-college educational pathways, and something like Sen. Mitt Romney’s proposed expanded child tax credit. “The common force pushing forward these various policy opportunities is the evolution in conservative thinking toward greater focus on the interests of the working class and a greater role for government in addressing the free market’s shortcomings,” they wrote.

In July, Douglas Schoen, a centrist Democratic campaign consultant who advised Mike Bloomberg’s 2020 presidential run, wrote an op-ed in The Hill urging the Republican Party “to coalesce around a moderate agenda that offers real solutions” and avoids “relitigating past grievances.” Schoen suggested some ideas that have been part of aforementioned Republican platforms, like prioritizing deficit reduction, loosening regulations on America’s energy sector, providing parents with school choice options, and increasing funding for law enforcement.

He also suggests that, “perhaps most importantly,” conservatives should moderate on abortion and guns, something no GOP coalition is calling for.

“By assuming a more open stance on abortion legality, Republicans can better sell their party as one that protects individual liberties,” Schoen writes. “Similarly, by moving to the middle on guns, the GOP can position and promote themselves as the law and order party.”

These latter proposals will likely fall on deaf ears for now.

The Trump wild card

One hard-to-predict variable that could greatly affect what Republicans do if they reclaim power in Congress is Trump, and how much pressure he seeks to put on their governing agenda. Trump made dozens of endorsements in congressional and gubernatorial elections, and even though his candidates’ win rate has been declining over past cycles, his influence over Republican voters, and thus candidates looking to win Republican primaries, is still very strong. If he mounts a bid for president, that could also affect the trajectory of a Republican-led House. He’s already promised that, if elected in 2024, he’d pardon January 6 rioters, sentence drug dealers to death, and abolish the federal Education Department.

Expect investigations and maybe an impeachment push

While the Commitment to America platform is sticking to less controversial euphemisms like “hold the Biden administration accountable,” some rank-and-file Republicans have been more explicit about the revenge and retribution they’d push for if their party takes over.

In late August, The Hill reported that some members plan to push for impeachment of the president, some of whom have already introduced at least eight resolutions to do that. While the existing impeachment resolutions will expire at the end of the year, some lawmakers have vowed to reintroduce theirs in January, including Rep. Marjorie Taylor Greene of Georgia. Another possibility is to push for impeachment of other high-ranking Biden administration officials, but not Biden himself. McConnell has urged his party to avoid campaigning in the midterms on impeachment, and a highly politicized impeachment process is unlikely to be a unifying strategy for the 2024 election, but sometimes pressure for impeachment takes on its own hard-to-control momentum.

Aside from impeachment, Republicans have confirmed they’re looking at holding a series of House investigations next year if they take power, specifically on areas like Democrats’ handling of the southern border, the DOJ, inflation, and energy. Rep. James Comer (R-KY) is set to lead the House Oversight and Reform Committee and told Politico he also wants to spearhead investigations into the business dealings of Hunter Biden and the origins of Covid-19.

Rape victims can face huge hospital bills if they seek help

Originally published in Vox on September 14, 2022.
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When victims of rape or sexual violence seek emergency medical assistance following an attack, they may be saddled with hundreds or even thousands of dollars in medical bills, a new study published this week in the New England Journal of Medicine found.

These bills can further traumatize victims, the study authors warn, and deter others from seeking professional help. Only one-fifth of sexual violence victims are estimated to seek medical care following an attack.

Researchers affiliated with Harvard analyzed a nationwide data set of more than 35 million emergency room visits in 2019, the most recent year such information was available. They looked specifically at visits where doctors billed with codes related to care after sexual assault, and found more than 112,000 such patients. Nearly 90 percent of those patients were female, and 38 percent were children under 18.

When victims of sexual violence go to the ER, there are two kinds of care they’d typically receive. The first is a sexual assault forensic exam, or more colloquially, a “rape kit.” That’s where a medical professional collects evidence from a victim, such as conducting a pelvic, rectal, or throat exam, taking samples for a DNA test, and looking for semen or any other evidence of violent injury.

Under the Violence Against Women Act (VAWA) of 1994, the costs associated with a forensic exam are paid for with public funds, and while survivors are sometimes erroneously billed, the federal law prohibits charging victims for the cost of their evidence collection.

But VAWA does not cover the second category of care — and that’s therapeutic care, or whatever is medically necessary for a person’s health following an attack.

“So for instance, doctors frequently give victims preventative medication for STDs, like antibiotics to prevent syphilis, gonorrhea, or HIV medication if that’s a possibility,” said Stephanie Woolhandler, one of the lead authors of the study. ER physicians may also provide emergency contraception to victims if pregnancy is a concern, and in other cases victims may have vaginal or rectal lacerations that need to be sewn up, other injuries, or broken bones.

The researchers’ findings on the costs of such care are sobering. Uninsured victims, who numbered over 17,000 in 2019, faced out-of-pocket charges averaging $3,673.

For all the roughly 112,800 patients seen for sexual assault who visited the ER that year, charges averaged $3,551, with even higher averages for pregnant patients ($4,553). Insured patients had lower out-of-pocket bills, but how much lower depends on the structure of their insurance plan. Prior research suggests that even those with private insurance paid about 14 percent of their bill on average, roughly $500. “That can be an enormous sum of money given that a disproportionate share of sexual assault victims are low-income women and girls,” Woolhandler told Vox.

The findings, published less than three months following the Supreme Court’s overturn of Roe v. Wade, come as states move to restrict not only access to abortion but other basic sexual health care treatments, like emergency contraception and drugs used to manage miscarriages.

Samuel Dickman, an abortion provider and lead study author, told Vox that when he used to provide care in Texas (he relocated to Montana in May), he personally encountered patients who came in following sexual attacks who were then vulnerable to catastrophic medical bills. “Texas has the highest uninsured rate in the country, and this research is a start towards quantifying that vulnerability,” he said.

The vulnerability isn’t limited to the uninsured, though. Dickman recalls one of his former patients who had been raped and became pregnant, and was seeking an abortion. “She was on Medicaid, and under the Hyde Amendment, rape victims should have had that procedure covered but Texas has made it so hard that we were looking at charging this victim more than $1,000 out of pocket,” he said. “Those charges were just shocking to her, and on top of having just been raped, frankly, it was haunting.”

What reform could look like

The study authors are urging policies that ensure affordable access to all essential medical services — including abortion and emergency contraception — “for survivors of rape, and for everyone else who needs that care,” said Dickman.

One option they suggest in their paper to help survivors of sexual violence would be to expand VAWA to cover therapeutic services, not just evidence collection. Woolhandler told Vox that that would be “a step in the right direction” but that ultimately more comprehensive reform, including universal health care coverage, is needed to eliminate barriers.

“Sexual health care is health care and we, like other developed nations, ought to be making all health care free at the time of use,” Woolhandler added. “In a post-Roe world, an unwanted pregnancy can mean an unwanted childbirth, and so the government has the power to force you as someone with a vagina to bear all the consequences of your attack, not just a $500 or $3,000 medical charge, but you have to also bear this child. It’s frankly outrageous.”

Paying greater attention to privacy concerns of survivors, the study authors urge, is also paramount to ensuring victims feel they can seek the care they need. “Emergency department charges may discourage the reporting of rape and seeking of medical care for both short-term and long-term sequelae of sexual assault,” the NEJM study states. “Incurring such charges may further harm survivors — even those with full insurance coverage — by serving to disclose a potentially stigmatizing event to parents, partners, or employers.”

Dickman said there’s no reason we couldn’t have a system where every individual has their own insurance card that entitles them to private care. “I’ve seen insured patients say they’ll pay for their care out of pocket even if that means they’ll have to skip rent or groceries, because they can’t have that kind of disclosure to their family or employer about abortion or sexual assault,” he said. “If you’re a minor seeking emergency room care, there’s a good chance the primary insurance policy holder will be getting a list of what services you received, and very plausibly, that person could be the person who committed the assault.”

Woolhandler said some of the privacy concerns stem from private insurance, because insurers are entitled to know what procedures were done and diagnoses made. “Part of the thing with single-payer is hospitals don’t send bills,” she said. “In Canada, hospitals get a lump sum that they use to pay all their operations; presumably, there’s a record at the hospital about who you are and your [medical] record, but it doesn’t have to leave the hospital.”

“We need to not tie people to their jobs or their family members in terms of medical care,” added Dickman. “It’s just a crazy way to structure a system.”

Hundreds of thousands of Californians may soon get their criminal records cleared

Originally published in Vox on September 9, 2022.
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Encounters with the criminal justice system, no matter how long ago or for what reason, can ruin a person’s life. California is on the verge of an ambitious attempt to change that.

An estimated 70 million to 100 million Americans have a criminal record, a history with law enforcement that turns up on background checks and sometimes Google searches. Applicants with criminal records can be half as likely as those without them to get a callback or job offer. Nearly 9 in 10 employers use criminal background checks; so do 4 in 5 landlords, and 3 in 5 colleges and universities. These practical realities make it harder to successfully reintegrate into society, in what researchers call “collateral consequences” of mass incarceration.

Most states have laws allowing for some form of criminal record clearing. Eligible individuals — generally those with no convictions, or who were convicted of a low-level offense — are typically required to petition a judge or state agency for clearance. Most don’t, whether because of the cost, complexity, or simply from lack of information. One University of Michigan study published in 2019 found over 90 percent of those eligible didn’t apply.

As a result, the “Clean Slate” movement was born — a recent push by criminal justice reformers to automatically clear, or seal from public view, records for eligible offenses.

Pennsylvania was the first state to enact automatic record clearing in 2018, followed by Utah, California, Michigan, Virginia, Delaware, and Colorado. Michigan’s law — passed in 2020 — was the first state to automatically clear some prior felony offenses.

A new bill, SB 731, recently passed by the California legislature and now sitting on Gov. Gavin Newsom’s desk, would go further.

If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.

“Clean slate automates the current process, but what we said is, the current process sucks,” said Jay Jordan, CEO at Alliance for Safety and Justice, the criminal justice group that has led the charge for SB 731. Jordan said they’ve been focused on making the petition process easier for individuals with records, so that everyone could have their fair day in court.

Two decades ago Jordan was sentenced to prison for a gun robbery charge. “I did eight years in prison and when I got out at 26 and tried to navigate the world, I realized I couldn’t,” he told Vox. He was rejected from various jobs and he and his wife are still facing barriers to adopting a child. “I’ve dedicated my life to trying to change this,” he said. “If I can get free, then everyone else can get free.”

How SB 731 would work

The bill’s author, state Sen. Maria Elena Durazo, wanted to help ex-offenders have an easier time transitioning out of prison. “About 75 percent of formerly incarcerated individuals are still unemployed after a year of their release,” Durazo told the Los Angeles Times. “So something’s wrong there. We expect them to get back on their feet, but we’re not allowing them the resources to get jobs and [have] careers.”

Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.

“This is not an über-progressive bill,” acknowledged Jordan. “We worked heavily with folks who don’t necessarily share our vision, the licensing agencies, the DOJ, it went through the rings of fire. But because of that, we’ve got the ‘mod squad’ on board,” he said, referring to the more centrist lawmakers in the state legislature.

If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.

Californians for Safety and Justice estimates at least 250,000 people would be eligible for automatic record sealing under SB 731, and possibly as many as 400,000. Will Matthews, a spokesperson for the group, told Vox they believe at least 1 million more individuals would gain the right to petition courts for record clearance.

What we know — and don’t know — about record clearing’s effects

Criminal justice researchers caution that even if automated record clearing expands to millions more people nationwide, it might not inevitably make it easier for people with criminal records to find jobs or places to live. While some research is in the works, not much is yet known about how these record-clearing policies work in practice.

Beginning in 2004, some criminal justice reformers pushed to pass “ban the box” policies, a bipartisan reform that effectively barred employers from asking about a job applicant’s criminal history until at least after an interview. The majority of states ultimately did it for public-sector employment and at least 12 did so for private employers as well.

But the success came with some unintended consequences. Research published in 2016 found employers were actually more likely to discriminate based on race following the passage of “ban the box” policies, thus increasing racial disparities in job interviews. More recent research suggests the reforms have done little to increase employment for ex-offenders in the private sector.

Last month, three California academics published a new analysis showing that the eligibility criteria for automatic record clearing can also exacerbate racial disparities. California’s record clearing laws — passed in 201620182019, and 2021 — have disproportionately benefited white Californians over Black Californians, the scholars found. “It is easy to see how racial disparities in criminal record relief might emerge, as a range of discretionary decisions by criminal justice actors from the time of arrest through to sentence completion can affect subsequent eligibility,” they wrote.

“Policies don’t start from nowhere,” Amy Lerman, one of the study’s co-authors, told Vox. “We know that Black Americans have historically been much more likely to live in heavily policed neighborhoods, to be stopped and questioned by police, and to be sentenced to prison or jail. That means when you pass a law that limits criminal record clearance to only people who have committed some types of crimes, or who have some types of criminal records, it is going to have a different impact across racial groups.”

SB 731 would be an improvement over the status quo, the California scholars told Vox, but racial disparities would likely persist until offenses classified as serious or violent, such as robbery, are included for automatic eligibility. They pointed to empirical research published in 2009 that found among people arrested at age 18, the risk that they would be arrested again eventually declined to match people of the same age who had not been arrested. It took 7.7 years after a robbery arrest, 3.8 years after a burglary arrest, and 4.3 years after an aggravated assault arrest.

The impact of SB 731 would also likely come down to implementation. New notification systems may be needed so that eligible candidates become aware of their new rights; also needed are clear agency guidelines regarding missing data and timely communication between state agencies and commercial background companies.

Data collection and quality have been an issue for criminal justice reformers in the past, and the challenges are exacerbated by the rise of digitized records online. Every year, digital records of over 10 million arrests, 4.5 million mug shots, and 14.7 million court proceedings are digitally released nationwide. Often, outdated or false paper trails create additional barriers for those looking to seal their records.

Tiffany Lewis, a San Francisco-based consultant who advises tech employees on their job applications, predicted that SB 731 would do little to remove the kind of criminal information an employer routinely finds online. Private companies also aggregate, scrape, and share criminal record data. To prevent this, Sarah Esther Lageson, a professor of criminal justice at Rutgers University-Newark, said states need to issue stronger regulatory standards and limit employer and landlord uses of unregulated background checks.

Lageson told Vox that the best thing states could do is centralize their criminal record disclosure policies. “For instance,” she said, “police departments might disclose pre-conviction mug shots, while courts release a different set of criminal case information online, while the office in charge of releasing rap sheets might only disclose convictions from seven years ago.”

Such disclosure patchworks can cause harm and undermine automatic record-sealing efforts. “States might also consider ending the bulk release of pre-conviction records altogether, reserving the release of some mug shots and arrest or charging information on a case-by-case basis or through more traditional transparency law requests,” she said.

There’s new federal momentum for record relief

While there’s always a risk with criminal justice reform that advocates will pass incremental measures that leave too many behind, early experience with clean slate policies suggest activists are not looking at passing record-clearing legislation as a one-and-done activity.

California is not the only state pushing to expand eligibility from its initial reforms. Following the passage of Pennsylvania’s clean slate bill in 2018, a provision requiring payment of fines and fees for clearance emerged as a major barrier to relief. One analysis found that half of otherwise eligible misdemeanor convictions statewide and 75 percent of otherwise eligible misdemeanor convictions in Philadelphia would be disqualified due to relatively small amounts of outstanding debt. Two years later activists succeeded in removing the fines and fees requirement in Pennsylvania.

On the federal level, two bipartisan bills to aid automatic record clearing have also picked up momentum and are scheduled for their first Senate Judiciary Committee markups later this month. One bill, the Clean Slate Act, would automatically seal federal arrest records for individuals who weren’t convicted, and records for individuals convicted of low-level, nonviolent drug offenses after successfully completing their sentence.

A second bill, the Fresh Start Act, would create a federal grant program to help states build the infrastructure necessary to implement automatic record clearing. President Joe Biden had floated this latter idea while on the campaign trail in 2020.

“Historic levels of bipartisan momentum have continued to trickle up from the states to Congress,” said Rebecca Vallas, a senior fellow at the Century Foundation who helped develop the clean slate model.

For now, Jordan and other advocates in California remain optimistic that Newsom will sign SB 731 into law, even though the governor vetoed a bill last month to establish new supervised drug-injection sites. With rumors of presidential ambitions, some critics believe Newsom ducked signing the bill out of fear it would be used against him on a national campaign trail. A spokesperson for the governor, Omar Rodriguez, declined to comment on SB 731, but said “the bill will be evaluated on its merits.”