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.”

The expanded child tax credit kept 4 million kids out of poverty. Can it come back?

Originally published in Vox on August 30, 2022.

As the ink dries on the Inflation Reduction Act — the landmark federal law that tackles climate change, drug pricing, health insurance, and tax enforcement — advocates for the expanded child tax credit have been quietly mourning their loss.

The expansion, passed as part of President Joe Biden’s pandemic relief program, delivered hundreds of dollars into parents’ bank accounts every month in 2021, ultimately helping 65 million children and keeping 3.7 million of them out of poverty. A year ago, the expanded CTC was heralded as one of the most significant policy achievements of the Biden era, so important to the broader Build Back Better negotiations that House Speaker Nancy Pelosi described its upcoming expiration as “really important leverage” for getting the rest of their agenda through.

It wasn’t enough. By January 2022, it was clear that any attempt to pass Biden’s agenda would likely exclude the child tax credit due to irreconcilable differences between West Virginia Sen. Joe Manchin and his Democratic colleagues over whether tax credit recipients should be required to work. When the Inflation Reduction Act passed last month, it didn’t include the CTC.

Now advocates for the CTC say they’re looking ahead to next steps. The first opportunity for new legislation could come at the end of the year, when Congress negotiates extensions on expiring business tax breaks. Advocates are also looking at new administrative solutions at the IRS, and thinking more seriously about state-level reform, amid state budget surpluses and new research detailing just how much families benefited from the now-expired expanded federal credit.

“It was very unfortunate that we didn’t get the expansion that we wanted in reconciliation, but it still is a very live issue,” said Brayan Rosa-Rodríguez, a senior policy analyst at UnidosUS, a national Latino advocacy group. “We’re going to focus on it over the next couple months to see if we can get it included in a tax extender bill.”

During the past year, as inflation wreaked havoc on bank accounts and eroded the value of existing family benefits, lawmakers have faced pressure to offer relief. In the wake of the Supreme Court overturning Roe v. Wade, conservatives have also been facing more pressure to support families, and a proposal introduced in June by Republican Sens. Mitt Romney (UT), Richard Burr (NC), and Steve Daines (MT) to distribute monthly cash payments to parents has garnered a lot of attention. Notably, this Republican proposal includes a requirement that families earn at least $10,000 to receive its full benefit, the kind of work requirement progressives rejected during reconciliation. Virtually every Republican has said that some “connection to work” is essential for any family policy they’d vote for.

To reach a bipartisan deal at the end of the year, advocates recognize they will have to entertain terms they rejected with Manchin.

“It’s obviously easier to get to 50 votes than it is to get to 60 votes, and that’s what it is,” said Zach Tilly, a policy associate with the Children’s Defense Fund, which co-led a coalition that pushed for the expanded CTC. “I think the way we’re looking at this opportunity at the end of the year is basically just as one where we may still have some leverage to get something done.”

Progressives are looking to an end-of-the-year compromise

Romney’s new child tax credit proposal — the Family Security Act 2.0 — is a modified version of a child allowance policy he introduced in 2021. One of the major differences between the two proposals is that the new one has a work requirement, something his Republican colleagues demand and which Manchin demanded last year during reconciliation.

The FSA 2.0 would increase the maximum annual child tax credit from $2,000 to $4,200 for each child under age 6 and $3,000 for each child ages 6 through 17, paid out in monthly installments. Expecting parents could also qualify for an additional $2,800 credit during the final four months of pregnancy. The “phase-in” of Romney’s plan — meaning the time at which families could start receiving their benefit — is much faster compared to the status quo. Right now the first $2,500 of earnings does not count toward CTC eligibility, while Romney’s plan would phase in the credit beginning with a family’s first earned dollar. This expansion would all be financed by consolidating other tax benefits, including a significant revamp of the earned income tax credit.

The left-leaning Center on Budget and Policy Priorities estimates that the number of children living in poverty would decline by 1.3 million under the Romney proposal, and that roughly 20 million children in families making less than $50,000 would be better off. But the CBPP also argues that roughly 10 million children would be worse off under the Romney plan, due in part to its proposed cuts to the EITC and its elimination of the “head of household” tax filing status, which millions of single parents use when they file their income tax returns.

The Niskanen Center, a centrist think tank that helped Romney craft his new proposal, pushed back on the CBPP’s analysis and defended the elimination of the “head of household” filing option, something conservatives have long argued disincentivizes marriage by imposing financial penalties on couples who tie the knot.

Niskanen agreed some families would be worse off, but said some of CBPP’s concerns could be addressed by increasing the phase-in and phase-out rate of the Romney proposal, to account for inflation. Niskanen also said the CBPP understates the benefit of making tax refunds administratively simpler for both recipients and the government.

As recently as this spring, progressive tax wonks and the Biden administration told Democrats in Congress that they should not consider any possible work requirement for expanding the child tax credit in reconciliation. But left-leaning groups are now acknowledging a compromise on this will likely be needed.

The Family Security Act doesn’t include any of the more politically popular exceptions to work requirements, such as exempting families with very young children, or families where the primary caregiver is disabled, elderly, or a student.

“If policymakers move toward a compromise on a Child Tax Credit expansion, the highest priority should be to make the credit fully refundable,” the CBPP said, meaning eligible to all regardless of whether they’re earning a certain amount of income. “But if that isn’t politically possible,” the CBPP concedes, “and an earnings requirement is included, important exemptions should be included as well.”

Writing earlier this month in The HillUniversity of California Berkeley public policy professor Bruce Fuller urged Biden to step up and find a compromise with Romney, such as a work requirement that starts when children enter school. “Romney’s bid has drawn deafening silence from the White House and leading Democrats,” Fuller wrote.

Josh McCabe, a family policy analyst at the Niskanen Center, thinks most advocacy groups were waiting for reconciliation negotiations to finally be over and are now starting new discussions. “I think people are more open to things that they weren’t before, and everyone’s feeling out what’s possible,” he told Vox. “So with the FSA 2.0 there’s a more generous phase-in, which is unattractive relative to the fully refundable CTC from 2021, but it’s very attractive relative to the status quo.”

Tilly, of the Children’s Defense Fund, acknowledged that it will take 60 votes to get anything done on the child tax credit at the end of the year. “So that limits what’s possible,” he said, though he emphasized that advocates have some leverage, as they recognize it will be politically difficult for Republicans to extend federal business tax cuts without offering any economic relief to families. An open letter published in March from 133 economists also made the case that an expanded CTC would be too small to meaningfully increase inflation, but large enough to help offset inflation’s toll, particularly for lower-income households.

“There’s a big gap between where we and most Democrats are and where the most CTC-sympathetic Republicans in the Senate are,” Tilly said. “So that’s obviously going to be the focus for us and a lot of the people that we work with in the fall, to try to bridge that gap and make improvements.”

New ideas for reform are cropping up at the state level

While Democrats and activists were not successful in expanding the federal CTC, the flurry of organizing, research, and media coverage on the policy’s success has had spillover effects, prompting more local policymakers to think about opportunities for state-level CTC reform.

In 2021, Colorado passed a new state child tax credit, which families will get to claim for the first time next year. Maryland recently passed a new child tax credit for families with children with disabilities, and New Mexico recently created a fully refundable tax credit worth up to $175 per child.

Last year, Massachusetts also converted two existing tax deductions for dependents into fully refundable child tax credits, and this year the state’s Republican Gov. Charlie Baker proposed doubling the value of those credits. In Vermont, Republican Gov. Phil Scott just signed a tax cut package that will send $1,000 for every child 5 and under to Vermont households making $125,000 or less, a program state lawmakers say was modeled on the expanded federal CTC.

McCabe, of the Niskanen Center, says the big difference between state CTCs and the expanded federal CTC right now is the states have tended to target their aid toward lower-income families, though exceptions exist, as in Massachusetts and Vermont. States are also tending to focus their CTCs on families with younger children, whereas the federal CTC supported families with older teens, too. One reason for this is means-testing state CTCs and limiting them to younger children helps keep the overall cost of the program down. Another reason is that there’s mounting evidence that the cost of raising younger children, compared to older teens, is more difficult for parents to afford.

The CBPP recently put out an analysis encouraging states to create their own CTCs, and noted that the cost of enacting or improving existing ones is “typically small enough that states may be able to absorb them without raising additional revenue.”

In a new report published by the People’s Policy Project, a crowdfunded leftist think tank, founder Matt Bruenig proposes reforming state-level tax credit programs (both CTCs and EITCs) to counteract the exclusion of low-income children from the federal tax credits. In other words, states could step up to push for what advocates were not able to get passed on the federal level during reconciliation negotiations.

“Minor and inexpensive tweaks to state tax credit programs could effectively extend the federal child benefit regime to poor families,” Bruenig writes. “This kind of state-level policymaking is where child benefit advocates should focus their attention over the next few years.”

Bruenig notes 29 states currently have these kinds of programs, and there will be 32 states that have them beginning in 2023. He identifies 14 states and Washington, DC, that have full Democratic control and could be more easily persuaded to make progressive tax policy reforms.

Bruenig told Vox there could also be a scenario where Romney’s proposed child tax credit was passed but gave states the option to effectively opt out of the work requirement, by allowing states to contribute money to the federal government so that the federal benefit would not phase in for their own residents.

“This would make the state supplement more administratively simple since you wouldn’t have to administer a separate state CTC,” Bruenig added, noting that the supplemental security income (SSI) program also works like this.

Rodriguez, from UnidosUS, said he thinks it’s a good time for state legislators to try to plug weaknesses in state versions of federal programs, particularly as states are experiencing historical budget surpluses from Covid-era investments. Rodriguez says he and his colleagues have also been encouraging states to allow immigrant workers with Individual Taxpayer Identification Numbers (an alternative to Social Security numbers) to collect state EITC benefits, something eight states currently allow. Eighteen percent of US citizen children in poverty — more than 1.63 million kids — are currently excluded from the EITC because they live in mixed-status families with undocumented members.

“This is a moment where we could have an inclusive and generous EITC at the state level, and the same goes for state-level CTCs,” Rodriguez said.

McCabe said one issue with Bruenig’s proposal is states may be hesitant to design their CTC programs around federal policy, as federal policy can change pretty quickly. States may also not want to wait around for federal enabling legislation if they were to opt for the idea that more closely resembles how SSI is administered. Moreover, if Republicans in Congress opposed the expanded CTC last year for being fully refundable, they very well may oppose making it easier for states to blunt the pain of their federal work incentives.

“I think states might be better off with creating entirely new infrastructure,” McCabe said. “I think Massachusetts is right to do it much broader, more limited by age, and then slowly grow their credit over time.”

The expiring Trump tax cuts present opportunities for CTC advocates through 2025

Advocates for the expanded child tax credit see opportunities to build on and improve the child tax credit as Trump-era tax cuts expire over the next few years. “We’re looking at the tax extenders at the end of the year, and as we’re doing that, we’re trying to think through what we need to do to really build momentum to pass something more permanent,” said Elisa Minoff, a senior policy analyst with the Center for the Study of Social Policy.

Advocates also see opportunities to push for administrative improvements at the IRS, to make the tax filing process easier and less costly for families. The IRS will have a new Biden-tapped commissioner next year, and the agency will have new money flowing in from the Inflation Reduction Act, some of which can be used to upgrade the agency’s technology.

Much of what CTC advocates say they will push for next in Congress depends on how the elections shake out this November. If Democrats win deeper majorities in the midterms, then they might be able to pass a more generous expanded federal CTC, like the House passed in its $1.85 trillion Build Back Better package last fall.

If Democrats lose seats in Congress, or even if they hold their number of seats steady, advocates may have to rethink their strategy around negotiating with Republicans or Manchin. Manchin’s demands for the CTC included limiting the number of affluent families who could claim the credit and having some form of work requirement. He also disliked the idea of only expanding the credit for one year, but worried about the cost of a big permanent expansion.

Climate advocates were able to win big priorities in the reconciliation deal this year only by ceding to all the main legislative priorities of the West Virginia Democratic senator.

“I think if we wound up in a position where now the entire future of the CTC turns on Joe Manchin’s approval, then I think the lesson of this reconciliation bill is that you have to tailor the process to him,” said Tilly. “Because he obviously has no qualms about letting it die.”

There’s a bipartisan bill to codify Roe — and abortion rights groups can’t stand it

Originally published in Vox on August 22, 2022.
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Amid threats over the last year that the Supreme Court might abolish the right to an abortion, Democrats and advocacy groups have used an imperfect but popular phrase as a synonym for protecting reproductive freedom: “codify Roe.”

“When we go back to Washington, we will be putting Roe v. Wade codification on the floor of the House to make sure that women everywhere have access to the reproductive health that they need,” House Speaker Nancy Pelosi pledged last September. When a draft of the Dobbs v. Jackson decision leaked in May, President Joe Biden stressed the need for “legislation that codifies Roe, which I will work to pass and sign into law.”

bill introduced earlier this month aims to do exactly that, writing into law the holdings of Supreme Court decisions that guaranteed the right to contraception and to abortion before fetal viability, usually in the 22nd to 24th week of pregnancy.

But translating abortion-related court decisions into legislative language that everyone can agree on has turned out to be more difficult and controversial than lawmakers have publicly acknowledged.

The bill, known as the Reproductive Freedom for All Act, is a bipartisan effort, sponsored by Republican Sens. Susan Collins and Lisa Murkowski and Democratic Sens. Tim Kaine and Kyrsten Sinema. It has sparked outrage among the leaders of abortion rights groups: They argue it would not actually codify key Supreme Court decisions and could even be a step backward from what Americans had before Dobbs. The measure does much less to protect abortion rights than the Women’s Health Protection Act, abortion rights groups’ favored bill, which passed the House but has failed twice in the Senate.

Their reaction underscores a key debate over Democrats’ legislative strategy in post-Roe America. Even as Democrats say they want to codify Roe, national reproductive rights groups and their allies in Congress see a political window to move beyond Roe’s weak framework and more meaningfully protect abortion access.

These groups, including Planned Parenthood, NARAL Pro-Choice America, the Center for Reproductive Rights, and a dozen others, think it’s unlikely that the Kaine-Collins bill could attract much Republican support beyond its two co-sponsors. Energized by recent pro-abortion rights victories, they express confidence about sticking to their original plan: elect two more senators, maintain control of the House, and then overturn the filibuster to pass the Women’s Health Protection Act, which would not only restore the pre-Dobbs status quo but dismantle a slew of state restrictions on abortion.

“We have this really clear political opportunity to realize some big, big wins,” NARAL president Mini Timmaraju said. “And we owe these folks who are at risk of losing their lives because of things like ectopic pregnancies, we owe them the biggest, boldest solution possible.”

The Kaine-Collins bill, by contrast, is intentionally less ambitious. “It’s like a time machine bill,” Kaine said. “We wanted to put something on the table that would give back Americans exactly what they had, and lock in a statutory protection that women had relied on for 50 years. Not expanding, not subtracting.”

Vox spoke with top Democratic lawmakers, legislative aides and strategists, leaders of reproductive rights groups, and legal scholars to understand the choices and challenges ahead for federal abortion policy. The interviews illuminated a simmering debate over whether it’s worth trying to return to the legal frameworks of June 23, 2022 — the day before Dobbs was decided — and deeper divisions over what baseline abortion rights the federal government should, or realistically can, guarantee.

The Reproductive Freedom for All Act, explained

In addition to enshrining the right to contraception, the bill prohibits state rules that impose an “undue burden” on abortion before fetal viability, the same standard established by the Supreme Court in its 1992 Planned Parenthood v. Casey decision.

Outright bans are illegal under this undue burden framework, but restrictions that significantly curtail access to abortion have often been upheld. The Reproductive Freedom for All Act also affirms health care workers’ right to refuse to provide abortion for religious reasons — something currently allowed in over 40 states, and a key demand from its Republican co-sponsors.

The bill sponsors readily admit there are not 60 votes in the Senate to pass the legislation, and Collins, Murkowski, and Sinema do not support overturning the filibuster. But the sponsors say they wanted to signal that a bipartisan majority of their chamber supports codifying Roe. (Kaine and Sinema also support the Women’s Health Protection Act, but Collins, Murkowski, and Democratic Sen. Joe Manchin opposed that legislation, depicting it as too expansive.)

Kaine compared his bill to lawmakers who fought for gun control when they also lacked 60 votes. “We spent a decade pushing for that, and then tragedies made the Senate move,” he said. “I think life post-Dobbs is a series of tragedies, and we have a sense that real life is going to push votes our way.”

The response to Kaine-Collins from reproductive rights groups and some Democratic lawmakers has ranged from chilly to hostile, with objections falling into four general buckets, of varying legitimacy.

Would the bill actually codify Roe?

The first objection — voiced by virtually every national advocacy group for reproductive rights — is that the Reproductive Freedom for All Act does not include explicit enough language to bar pre-viability abortion bans, like the 15-week ban in Mississippi that sparked the Dobbs case to begin with. For this reason, they say, the bill doesn’t actually codify Roe v. Wade.

This is the most controversial objection. The bill clearly states a government cannot impose an undue burden on a woman’s right to an abortion before fetal viability, and that fetal viability is determined by a woman’s attending doctor, not the state. While it’s likely that medically unnecessary restrictions such as mandatory waiting periods could withstand the murky undue burden standard, an outright ban is a different question.

Kaine says the bill was specifically written to prevent pre-viability bans. “I practiced civil rights law for 18 years and virtually any intellectually honest judge would look at this and say Congress says you can’t impose an undue burden, which a ban clearly is,” he said. “While you may have rogue judges here or there, returning to the undue burden standard would give the judiciary not just the tools but also the mandate to throw out those kinds of laws.”

So what’s going on? Pressed for answers, reproductive health groups and senators pointed to a concurring opinion in Dobbs from Chief Justice John Roberts. Writing alone, Roberts argued that the right to an abortion does not necessarily need to be paired with fetal viability. Roberts suggested Mississippi’s 15-week ban could potentially be legal, as long as a woman had a “reasonable opportunity” to get an abortion before then.

“Senator Kaine’s legislation is missing the core protection of Roe, which prohibited any ban on abortion before viability, and replaces it with a dangerous legal standard that could permit extremist state laws like Mississippi’s 15-week ban,” Sen. Elizabeth Warren told Vox in a statement. “This bill is closer to codifying Chief Justice Roberts’s concurrence in the Dobbs decision than it is to codifying Roe, and I do not support it.”

But the idea that John Roberts’s interpretation of the undue burden standard — which was rejected by the Court’s five-member conservative majority — would triumph now is unpersuasive, said several legal experts.

Ben Eidelson, a Harvard constitutional law professor, said the Reproductive Freedom for All Act “very clearly precludes pre-viability bans” and noted the Roberts concurrence “really has no legal relevance here.”

The majority opinion in Dobbs — not the concurring one — would define the legal backdrop for interpreting what Congress does next, Eidelson said. “It would be extraordinary for the Court to turn around, after Congress relies on that, and say that actually Roe and Casey meant something completely different than they themselves had said or anyone ever thought,” he added.

Sherif Girgis, a Notre Dame law professor who argued the Supreme Court should overturn Roe, said the Kaine-Collins bill prohibits abortion bans “even a little bit” before viability and “there is no serious argument to the contrary.”

Girgis noted that “every judge at every level of the judiciary” who has considered the abortion question in the last 30 years — including very conservative judges like James Chiun-Yue Ho on the Fifth Circuit and Amul Thapar on the Sixth — has held that Casey’s undue burden standard precludes any pre-viability ban, and that even Roberts didn’t disagree in Dobbs.

Rachel Rebouché, the dean of Temple Law School and co-author of an influential paper on coming legal battles in a post-Roe America, also said she doesn’t see how Roberts’s concurrence would be significant here. “Even if the bill is not explicit as you might want it to be, it is pretty explicit,” she said. “And even if John Roberts argues that Casey never necessarily intended the viability line to be the line Roe prohibits, there is no other vote on the Court for that view.”

There are a few dissenting scholars. Leah Litman, a constitutional law professor at the University of Michigan, argues the operative section of the Kaine-Collins bill needs to be more specific, given Roberts’s opinion in Dobbs and because states like Texas and Mississippi, and conservative groups, have been arguing that undue burden doesn’t necessarily prohibit pre-viability bans.

“That gives the Court wiggle room to say it’s not so clear,” she said. “It’s a sloppy bill that is foolish and naive and fails to take the federal courts as they are.”

Could the bill pass and withstand a court challenge?

The second objection is practical: The Kaine-Collins bill doesn’t have the votes. Timmaraju, president of NARAL, describes the Reproductive Freedom for All Act as a “political stunt that should not be taken seriously” given that its sponsors have not backed overturning the filibuster.

Advocates say their best path to protect abortion rights is to elect two more Democratic senators to overcome its last failed vote of 49-51. Democrats are favored to at least retain control of the Senate next year, but to lose the House. Performing well enough in November, though, doesn’t mean the filibuster’s death is a foregone conclusion; just as many lawmakers pledged support for Medicare-for-all only when the possibility seemed remote, more objections to ending the filibuster might emerge if it were a real possibility.

There’s a third objection: that the Reproductive Freedom for All Act is inadequate because it would invariably return questions back to the same anti-abortion federal judiciary that just overthrew Roe. This objection is a little tricky, since the Women’s Health Protection Act would also get embroiled in legal challenges, and be reviewed by those same hostile judges.

But advocates say at least the Women’s Health Protection Act is much more specific on what types of restrictions would violate the law, an improvement over the “undue burden” standard that leaves so much to court discretion.

Mary Ziegler, a professor at the UC Davis School of Law who has authored several books on reproductive rights history, said federal courts would likely strike down both bills because Congress has limited authority to legislate in this area.

“It’s either going to be relying on Section 5 of the 14th Amendment, or the commerce clause, and quite likely you’ll get a conservative Supreme Court that says Congress doesn’t have the authority to do either of those things,” she said. “Which is a reason why there will have to be some kind of conversation about court reform, because there would be real jeopardy for any federal legislation protecting abortion rights.”

Sarah Standiford, the national campaign director for Planned Parenthood Action Fund, agreed there are real hurdles right now for federal bills. “I think there is a hunger for Congress to solve this problem, but the solution is not simple, and the solution is going to be using every avenue we have, and the fact is many of those avenues are at the state level,” she told Vox. “We have to be honest with ourselves about the limitations that structurally exist in Congress.”

Advocates want to focus beyond Roe and Casey

The final category of objection is the biggest one: that restoring the Roe and Casey standards would not do enough to address the abortion care crisis in the United States. Before Dobbs, it was perfectly legal to enact medically unnecessary restrictions that crippled abortion clinics and which made terminating pregnancies practically too difficult to do. The overturn of Roe has wiped the slate clean, and activists see an opportunity to fight for stronger protections.

In explaining her objection to the Kaine-Collins bill, Sen. Tammy Duckworth (D-IL) told Politico it doesn’t “fully [guarantee] a woman’s right to reproductive choice.” Warren said returning to the status quo before Dobbs “is not good enough.” A joint statement from 15 reproductive rights, health, and justice groups stressed they’re looking for “legislative solutions that make abortion truly accessible.”

Timmaraju, NARAL’s president, emphasized that activists have developed a much clearer understanding of how restrictions permitted under the undue burden standard can decimate access to care. “To those who say we want to go back in a time machine to the day before Dobbs, that was still a bad day,” she said.

Democratic senators and activists also stress the Kaine-Collins bill does not explicitly prohibit SB 8, the novel citizen-enforced abortion ban that Texas passed last September and which several states are looking to copy.

The Women’s Health Protection Act doesn’t explicitly bar these bans either, but does include language its drafters hope could grant advocates grounds to challenge the “bounty hunters” in court.

Kaine, for his part, thinks his bill would protect against laws like SB 8. “A bounty hunting law is an undue burden, and a six-week ban is before viability,” he said. “Our bill would wipe out all those state schemes.”

Eidelson, the constitutional law professor, thinks that if Congress passed the Reproductive Health for All Act and if the Supreme Court upheld it (both big ifs), that would, in fact, substantially undercut SB 8 and similar laws. Much of the chilling effect in Texas over the last year stemmed from the interaction of SB 8’s threat of liability and pending uncertainty over Roe v. Wade.

The Kaine-Collins bill’s opponents aren’t just disinclined to accept the pre-Roe status quo — they’re less certain they need to compromise. An increasing share of Democrats and independents say the Dobbs decision has motivated them to vote in November. Advocates are energized by the recent ballot victory in Kansas, two special elections where Democrats outperformed their 2020 vote share, and midterm polls that show voters are concerned about abortion rights. Democratic Senate staffers say privately that there’s no reason to tamp down on bold rhetoric now, and there will be time to moderate later if the political landscape shifts.

“I think the thing that is most useful for abortion rights advocates to be doing now is to be as aggressively chest-thumping as possible,” one senior aide told me, speaking anonymously to candidly describe Senate discussions. “It helps to position ourselves so that when the next meltdown comes, what emerges out of it will be as strong as possible.”

The strategically optimal path to federal abortion rights is for now unsettled, but the stakes are high. Ziegler, of UC Davis, said she’s not surprised the national groups aren’t defending bills to codify Roe and Casey now that those decisions have been overturned.

“I do think Casey from the standpoint of most national groups was never good enough,” she said. “I also think from the standpoint of a person of color living in Arizona with a fetal personhood law, Casey probably looks awfully good right now.”

California could transform how fast food workers are treated

Originally published in Vox on August 15, 2022.
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Ten years after the launch of the Fight for $15, fast-food workers nationwide are still grappling with low and stolen wages, unsafe workplaces, and rampant sexual harassment. California lawmakers now are considering a bill to address those problems, aimed at improving conditions for the more than 550,000 fast-food workers in the state.

The bill, known as AB 257 or the FAST Recovery Act, passed the California Assembly in January, and is coming up for a full vote in the state Senate this month. “There may be no more consequential measure for labor rights in Sacramento this session,” said LA Times columnist Michael Hiltzik. Its impact though, might not be limited to California.

The legislation would establish a new state council with the power to set minimum working standards for fast food restaurants across California. It would also create a means to hold companies like McDonald’s and Pizza Hut legally responsible for any labor violations at individual stores, even if those individual stores are owned by franchisees. Right now, big corporations are generally not liable for their franchisees breaking labor laws.

In many European countries, unions negotiate working standards that apply to workers across an entire industry, not just one company. This approach, known as “sectoral bargaining,” is particularly useful for protecting workers toiling in industries that rely heavily on part-time staff, contractors, and subcontractors. Sectoral bargaining is prohibited by federal labor law in the US, but the bill in California is a similar idea, and a step that a labor-friendly state can take on its own.

Food industry and franchise trade groups certainly recognize the threat the FAST Recovery Act presents to their business model, and the national implications if it becomes law.

“If passed, also expect to see similar legislation in states like New York, Oregon, Washington, Illinois, and more,” warns lobbying materials from the National Restaurant Association. “The greatest chance for defeating this legislation is in the California Senate, making it imperative for the industry to focus its efforts there.”

Unions and labor allies, in turn, have been advocating hard for the bill — organizing worker strikes, petitions, and lobby trips to Sacramento and Washington, DC.

In June, presidents from America’s largest national unions sent a letter to Democratic Gov. Gavin Newsom urging him to “support and champion” the FAST Recovery Act. “This bill is an opportunity to connect policy with your progressive values and demonstrate that California knows how to lead the nation with innovative solutions that tackle rising inequality,” they wrote.

Newsom, who is rumored to have 2024 presidential ambitions, vetoed a big labor bill last year that would have made it easier for California farmworkers to unionize. Omar Rodriguez, a spokesperson for Newsom, told Vox they don’t typically comment on pending legislation: “The governor will evaluate the bill on its own merits if it reaches his desk,” he said.

Kate Andrias, a labor law professor at Columbia University who has written about sectoral bargaining, told Vox that she sees the FAST Recovery Act as “a significant step forward.” “There are ways in which workers can influence wages and regulations already, but what this bill does is create a focal point for workers to be a more empowered part of the administrative system,” she said.

How the FAST Recovery Act would work

The law would establish a 13-member council that includes political appointees from state health and labor agencies, as well as food industry officials, fast food workers, and union representatives. The council would “promulgate minimum standards” for things like wages and working conditions for restaurants where workers aren’t unionized. The bill would also clarify joint liability for the franchisor and franchisee, and establish protections for workers who exercise their rights.

The standards would apply to any chain in California that has at least 30 stores nationwide that share a common brand.

Only six votes from the council are required to issue a rule, which means even if all four direct representatives from the business community reject it, the measure could still pass. The California legislature would have an opportunity to reject or change the council’s proposed standards, as would the state’s Occupational Health and Safety Administration.

Advocates say the bill will help prevent wage theft, sexual harassment, and general lack of compliance with existing labor standards

Angelica Hernandez, an activist with the Fight for $15 campaign in California, has worked at McDonald’s for the last 18 years. In that time, she told Vox, she had her wages stolen in the form of unpaid hours for time worked and experienced sexual harassment on the job. When she tried to tell her manager about her harassment, she said she was laughed at and dismissed.

A McDonald’s spokesperson said the company “has been clear that sexual harassment will not be tolerated” and pointed to McDonald’s Global Brand Standards for safe, respectful, and inclusive working environments, which took effect for all restaurants beginning in January 2022.

In response to Hernandez’s allegations specifically, McDonald’s says it investigated her harassment concerns, and “matters [were] closed in alliance with our company policies.” With regard to the wage theft, the spokesperson noted that over the last few years the restaurant Hernandez works at “has implemented safeguards that further ensure employees are properly paid for their work.” The spokesperson said they also “conduct routine wage and hour audits” at this particular restaurant.

“With AB 257, we would have a more dignified job,” Hernandez said. “We would finally have a voice and have a place where we can make sure that we are setting better standards. It’s sad because we work in a free country but we’re not free in our job to speak out.”

Fast food workers rally and demand the passage of AB 257, landmark legislation they said would protect and empower the state’s fast food workforce, in Irvine, California, on July 27.

The vast majority of fast food workers in California are women and people of color, and many report similar experiences as Hernandez. In one survey of California fast food workers, released in May by the Fight for $15, 85 percent said they experienced wage theft on the job. Another recent survey, commissioned by the Los Angeles County Department of Public Health and conducted by the UCLA Labor Center, found 43 percent of workers experienced workplace injury or illness, nearly half experienced verbal abuse, and a quarter said they were retaliated against by their managers for reporting workplace issues.

This month, in a joint study between University of California San Francisco and Harvard’s Shift Project, researchers found California fast food workers are paid nearly $3 per hour less — almost $6,000 less annually — than workers in comparable service-sector jobs across the state, and are more likely to have unpredictable schedules and work part-time involuntarily.

While California already has some of the most robust labor laws on the books, advocates say those rules are often flouted in part because franchisees have little legal authority to make changes to their businesses aside from cutting corners on worker pay. (The bill was introduced by Assembly member Chris Holden, a former Subway franchise owner in Pasadena.)

“Franchises can’t control pricing, hours of operation, or their suppliers,” said Brian Callaci, the chief economist at the Open Markets Institute, an anti-monopoly think tank. “All they can do is drive down labor costs, so the franchising model is really designed to put the interest of local employers and their workers at odds.”

Matthew Haller, president of the International Franchise Association, told Vox that franchise brands ensure their franchisees comply with the law “by virtue of their franchise agreements, and have an incentive to ensure compliance to protect the brand.”

The restaurant industry warns the bill would hurt businesses and consumers

One of the main arguments put forth by opponents of the FAST Recovery Act is that the bill would make it harder and more costly for stores to operate and that lawmakers would be better off dedicating more resources to California’s labor department to enforce existing rules.

Sean Redmond, the vice president of labor policy at the US Chamber of Commerce, called AB 257 “a radical proposal to micromanage the fast food industry” and said consumers would bear the consequences through higher prices. Other business leaders are warning of reductions in jobs and working hours.

Jeff Hanscom, vice president of state and local government affairs for the International Franchise Association, called the bill “one of the most damaging pieces of legislation to ever impact the franchise business model.” The business-backed Campaign to Stop AB 257 has blasted the idea as “11 unelected political appointees to run California’s entire counter service restaurant industry from Sacramento.”

Still, supporters of the bill push back on this framing. “Exploiting your workers is not a socially permissive competitive strategy,” Callaci said. “I think it’s that blunt.”

It’s not clear how lawmakers will proceed. On Thursday, the bill passed out of the Senate appropriations committee, but California’s Department of Finance has come out against the legislation, saying it “could lead to a fragmented regulatory and legal environment for employers and raise long-term costs across industries.”

A step toward sectoral bargaining

Labor advocates believe the FAST Recovery Act would represent a meaningful step toward sectoral bargaining, as right now states are barred from passing their own collective bargaining law for private-sector workers. To do so would be what’s known as an illegal preemption of the National Labor Relations Act, which governs unions for private employees.

The big labor reform bill known as the Protecting the Right to Organize Act (PRO) that unions are advocating for in Congress would not legalize sectoral bargaining, but it includes measures that would also move things closer to that point. Andrias, of Columbia University, said the PRO Act would clarify the standard for joint-employment between franchisors and franchisees, and require the GAO to study sectoral bargaining. The bill would also make it generally easier for workers to unionize and strike.

National labor advocates say while the FAST Recovery Act would be an innovative solution, it also does not represent a radical departure from past models. “It is based in well-settled principles of law,” wrote Berkeley law professors Catherine Fisk and Amy Reavis. “It is akin to existing appointed bodies, such as the California Energy Commission and California Coastal Commission, that are designed to tackle difficult issues and ensure input from stakeholders.”

And there are similar experiments happening elsewhere across the country. In 2015, then-New York Gov. Andrew Cuomo convened a wage board to evaluate compensation in the state’s fast food industry. This led to an increase in the minimum wage for New York fast food workers, phased in over six years. In 2018, Seattle established a labor standards board to make recommendations for domestic workers, and Detroit followed suit with a multi-industry board in 2021.

Thinking about labor organizing across broad industries, advocates say, is a helpful shift in perspective, and it can also take different forms from these aforementioned models. In 2018, for example, public school educators mobilized through the new #RedforEd movement, and right now there’s a wave of national grassroots organizing with Starbucks and Amazon workers.

“Sometimes the term ‘sectoral bargaining’ can be a distraction,” said Andrias. “What we’re really talking about is broader-base bargaining, and that could look different in different contexts.”

School vaccine mandates for Covid-19 are not happening

Originally published in Vox on August 8, 2022.

For the third summer in a row, school leaders are facing the question of what — if anything — they’re going to do to stop the spread of Covid-19 when students return to classrooms.

One thing is clear: Almost none of them will be requiring vaccines.

Just 31 percent of children between 5 and 11 in the US have been fully vaccinated, and 61 percent of 12- to 17-year-olds have been. (Only about 3 percent of children under 5 had received a first dose by July 20.)

Still, no state in the country is planning to require student vaccinations, a marked turnaround from where things seemed to be headed last winter, when multiple states and school districts suggested vaccine mandates were coming soon. Only Washington, DC, has announced a mandatory school vaccine policy this fall, for students 12 and older.

Other mitigation measures — from masks to ventilation — may also be on their way out. The Centers for Disease Control and Prevention will likely soon recommend easing school testing, quarantine, and social distancing requirements, CNN reported last week. (Many schools often disregarded CDC guidelines, but the update is a sign of how expectations have shifted.)

Burbio, a company that specializes in aggregating school calendars, reported that so far, the vast majority of school districts it tracks nationwide will not be requiring masks this fall. And a June CDC study found just under 40 percent of American public schools had replaced or upgraded their HVAC systems to provide improved ventilation.

For the last three years, school requirements — closed or open? masks on or off? — have been a battleground in the culture war over Covid-19. Fear of wading back into the polarized fights over vaccination is one reason school leaders have backed away from requiring the shots. So is the fact that vaccines for children under 12 are not yet fully approved by the FDA.

But an even bigger factor might be mass indifference: American adults are more hesitant to vaccinate their kids, especially younger kids, than they were to get shots themselves. And no influential health group or federal agency is pushing states to require them to do so.

How California backtracked on vaccine mandates

In October 2021, California’s Democratic Gov. Gavin Newsom was the first in the nation to announce a planned Covid-19 vaccine mandate for K-12 students once the FDA had fully approved the shots. He said at the time that it could take effect as early as January.

Some school districts in the state tried to impose vaccine mandates that would take effect even earlier. Los Angeles Unified School District, the second largest in the nation, announced in September 2021 that students 12 and older must be fully vaccinated by December 19, or switch to online schooling. In Oakland, California, the school board passed a similar vaccine requirement in late September for eligible students, with a deadline of January 1. The Pfizer vaccine for 16- and 17-year-olds had been fully approved in August, while the shots for 12- to 15-year-olds were still under FDA’s emergency use authorization.

By December 2021, facing both political and legal pressure, school leaders pushed back the vaccine mandates to the start of the 2022-23 school year. LAUSD board president Kelly Gonez has said their decision was “not about conceding to a vocal minority of anti-vaxxers,” although those who oppose mandatory Covid vaccines hailed the delay as a victory.

But as 2022 continued, pressure for youth Covid-19 vaccines declined. A state lawmaker in California who had introduced a bill to require Covid-19 vaccines for K-12 students withdrew it in April, saying that focus needed to be on ensuring access to the vaccine. The same week, the California Department of Public Health announced it would no longer add the Covid-19 vaccine to its list of mandated childhood vaccines for public schools because they had not all yet received full FDA approval. The earliest the requirement would take effect, they said, was July 2023. Individual school districts like Los Angeles followed suit.

A California health department spokesperson told Vox that the state was waiting “to ensure sufficient time for successful implementation of new vaccine requirements.” As of last month, the vaccines are now fully approved for ages 12 and up, but not yet for younger children. The California health agency also said even after all the shots receive full approval, officials would still take into consideration other health group recommendations before issuing a new mandate.

Louisiana, likewise, retreated on a student vaccine mandate Democratic Gov. John Bel Edwards announced last November. New Orleans Public Schools is the only district in the state to require students to be vaccinated against Covid-19, though policy enforcement has been mixed. New York City Mayor Eric Adams, who said in January he was considering a student vaccine mandate for the fall, quietly dropped the idea, scaling it back to a requirement for students participating in certain sports and other “high-risk” extracurriculars like choir.

Why districts have been loath to require Covid vaccines for students

The California situation illustrates the several factors at play in schools’ reluctance to require vaccines.

One issue is the lack of full FDA approval for vaccines for younger children. The US Supreme Court has endorsed states’ authority to require student vaccines, but many policymakers were wary of testing that legal authority for Covid-19 shots that had only received emergency use authorization. (The Justice Department issued a memo last summer saying schools could legally do this, but the threat of defending those decisions in court was both real and unappealing.)

As a result, even once youth vaccines became available, leaders hesitated to require them without full FDA approval. But now the FDA has fully approved vaccines for teens and adolescents, and that still hasn’t led states or districts to require the shots for older kids.

Policymakers are also wrestling with the fact that the virus is much less deadly for children compared to adults. (Approximately 1,180 of the more than 1 million Americans who have died of the virus were 17 or younger, though health experts stress vaccination can still help protect against these rare outcomes.) Kids can also catch the virus in school and spread it back at home to their more vulnerable parents and grandparents, but that risk became easier to tolerate once adult vaccines were approved.

Most school districts were wary of igniting another public school culture war battle at a time when students were still struggling to regain academic and social skills lost during the pandemic. On the eve of the anniversary of the January 6 riot, former President Donald Trump blasted President Joe Biden for supposed “talk” that his administration might enforce a vaccine mandate for school children and urged “MAGA nation” to rise up against any such requirements. (The Biden administration has not publicly discussed any student vaccine mandate.)

Conservative law firms were also helping to mount legal challenges against proposed Covid-19 vaccine requirements, and groups fighting mask and vaccine mandates have insisted there is no reason to vaccinate kids to protect more vulnerable populations.

Polling also indicated that many parents were not eager to have their kids get the shots, and administrators felt hesitant to impose any rules that could keep vulnerable students — particularly Black and Latino students — out of in-person learning for even longer than they already endured.

The Covid-19 Vaccine Monitor, run by the Kaiser Family Foundation, reported recently that parents’ intentions to vaccinate their older children have remained relatively steady since the start of the year: About six in 10 parents of those aged 12-17 say their child has been vaccinated (57 percent); about 30 percent say they will definitely not get their teen vaccinated. Eight percent said they will only vaccinate their child if required.

Covid vaccination uptake is even lower among children ages 5-11, and nearly half of parents of that age group either say they will only get them vaccinated if required to do so (10 percent) or say they definitely won’t (37 percent).

While all demographic groups in the KFF study expressed concerns about long-term effects and side effects, Black and Hispanic parents also voiced more concerns over the logistics of getting their kids vaccinated.

Jeremy Singer, an education policy researcher who has been studying Covid-19 school reopenings, said it’s notable that resistance to youth Covid-19 vaccine requirements is present in nearly all school districts. One reason why, he said, may be what school districts are hearing from parents and community members.

“District leaders may still be feeling risk-averse, but at this point the ‘riskier’ thing for them could be to impose an unpopular mandate,” he said.

In January 2022, Singer and his colleagues surveyed Detroit parents on whether they supported or opposed various health measures. “Parents expressed overwhelming support for almost every measure … except vaccine mandates for staff and especially students, for which there was a lot more ambivalence,” he said of their findings, which are not yet published.

National groups and federal agencies aren’t pushing for vaccine mandates

Back in February, Education Secretary Miguel Cardona wrote in a letter to schools, “The #1 tool we have available right now to make sure our schools remain safe and open for all students is vaccination,” and encouraged schools to provide information and host clinics. But the department has stopped short of encouraging schools to require the shots. Elaine Quesinberry, a spokesperson for the Education Department, referred Vox’s questions about student Covid-19 vaccines to the CDC, and the CDC did not return a request for comment.

The CDC’s last updated schools guidance, posted in late May, does not recommend schools require the shot, though encourages schools doing targeted outreach to promote it. A White House spokesperson declined earlier this year to say if Biden would support schools requiring Covid-19 vaccines for students if the vaccines had received full FDA approval.

Susan Martin, a spokesperson for the American Academy of Pediatrics, referred Vox to their policy statement recommending Covid-19 vaccines for all eligible children, and their interim guidance on safe schools, which says Covid vaccination and boosters should be encouraged.

Even teacher unions — which were influential in shaping school reopening decisions in the 2020-21 school year — have not staked out youth vaccination as a dealbreaker for safe in-person learning. An NEA spokesperson said, “Our position on vaccines have not been changed or updated at this point” and referred Vox to a position statement published in December 2020, which said parents should follow vaccine guidelines from the CDC and the American Academy of Pediatrics.

Back in October 2021, the last time the American Federation of Teachers released a formal statement on youth vaccines, president Randi Weingarten said “vaccine approval will be critical to keeping our kids safe and healthy, and making sure our schools stay open and remain safe and welcoming for all.” In a statement to Vox, Weingarten said the group is awaiting “full authorization by the FDA to inform requirements for kids — but in the meantime we must ensure the other guardrails, including revamped ventilation, are in place.”

Washington, DC, is moving forward with its student vaccine requirement

The big exception is in the nation’s capital. In late December, Washington, DC, councilmembers voted overwhelmingly in favor of legislation requiring all eligible students to get vaccinated against Covid-19.

The bill set a vaccination deadline for March 1, 2022, though enforcement was delayed until the start of the 2022-23 school year, a concession to help keep students in school. At the time, just over 60 percent of DC young people ages 12-17 had received their two shots.

Last month the city announced it would move forward with its back-to-school vaccination policy, requiring Covid-19 vaccines for all students ages 12 and older within the first 20 school days. DC is also ramping up outreach and enforcement for its other required youth vaccinations — like measles and mumps — which the city didn’t enforce strictly last year, and students fell behind on.

“I think one thing that is important to know in terms of how DC is moving forward is we’re not just talking about the Covid vaccination, we are having a conversation about routine child immunization, and the Covid vaccine just happens to be a part of the series where kids need to get caught up,” said Christina Henderson, a DC councilmember and the lead sponsor of the bill requiring Covid-19 vaccines for students.

Henderson said their effort this year involves more concerted help from pediatricians, school leaders, and public health officials, to stress the importance of vaccination and to relay the evidence that millions of young people by now have safely received the shots.

Henderson pointed to the recent case of an unvaccinated 20-year-old with polio, and stressed that this is not the time to waver on the importance of pediatric vaccination. “We also know mandates work,” she added, noting that while many teen athletes were initially ambivalent about getting vaccinated, following DC Mayor Muriel Bowser’s vaccination requirement to participate in sports last September, even hesitant students got their shots.

The Washington Post reported in late July that about 85 percent of DC students ages 12-15 have been vaccinated against Covid-19, but just 60 percent of Black children in that age range have been.

“If one school has a high unvaccinated rate of students, then we will bring a mobile vaccine clinic there,” Henderson said. “We are not going to assume that parents are purposely saying ‘I don’t want to get my child covered.’ It might just be they were away all summer and didn’t know about it, or didn’t have time.”

Kathryn Lynch-Morin, a spokesperson for DC’s Office of the State Superintendent of Education, told Vox that city agencies have been coordinating closely with schools to support them with technical assistance, guidance, and outreach to families.

“Our children belong in school with their friends and teachers who care about them,” she said. “But, we know if an outbreak of one of these serious or deadly diseases were to occur, it could have a harmful impact on our children, families, and staff. We also know that vaccinations save lives.”

How state governments are reimagining American public housing

Originally published in Vox on August 4, 2022

What if one of the answers to America’s housing crisis is something that’s been staring us in the face?

Public housing — but not exactly the kind most people think of.

Even before the pandemic, the nation had too few homes available to buy or rent. Housing prices were eating up bigger chunks of people’s budgets every year — and that was all before inflation started wreaking havoc on American bank accounts. Now, with the Federal Reserve hiking interest rates to try to rein in inflation, one unfortunate but entirely predictable consequence is a reduction in home construction. With mortgage rates going up, fewer people are looking to buy, which means fewer private developers are launching projects compared to a year ago, unwilling to risk not landing a buyer. Housing experts warn that the longer this all drags on, the harder it will be to get new projects started later, worsening an already serious housing shortage.

To prevent this grim spiral, a small but growing number of analysts and lawmakers are turning their sights to an idea that has fallen mostly out of favor over the last 50 years: what if the government steps in to develop its own housing? Specifically, state and local governments.

In June the Rhode Island legislature approved $10 million in its state budget for a new pilot program to build mixed-income public housing. It’s one of several state and local governments starting to get into a game that’s historically been the federal government’s purview.

K. Joseph Shekarchi, a Democrat who serves as the state’s powerful House speaker, pushed to include this funding as one way to tackle Rhode Island’s affordable housing crisis. “I think housing authorities in Rhode Island are one of the best-kept secrets. They produce clean, affordable, low-income housing that are really well-maintained and high quality,” he told Vox. “So with this $10 million, we want to see if there’s an appetite for incentivizing housing authorities to increase their housing stock.”

Governments have successfully addressed past housing shortages through publicly developed housing in places like ViennaFinland, and Singapore, but citing these examples often leads to glazed eyes and weary skepticism that such models could ever work in the US, with our more meager welfare systems and our strong cultural attitudes toward private homeownership. America’s 958,000 units of federal public housing have also long suffered from reputation problems both real and exaggerated, with many seen as ugly, dirty, or unsafe. Few understand that many of the woes of American-style public housing have had to do with rules Congress passed nearly 100 years ago that predictably crippled its success and popularity, rules like restricting the housing to only the very poor.

“There’s just real skepticism that governments can do things well, and there’s the stigma of American public housing driven by racist and classist policy choices that have undermined public housing here in ways that European and Asian public housing programs have not,” said Alex Lee, a California state representative, who introduced a bill this year to create new publicly owned mixed-income housing.

Lee prefers the term “social housing” — to help differentiate his vision from the segregated, income-restricted, and underfunded public housing that has defined the American model. “But just because there were mistakes made doesn’t mean we’re doomed to repeat them,” he added.

Lee’s legislation commanded wide support from powerful constituencies in California, and passed through both his chamber and the state Senate’s housing committee. Though his bill is now stalled out, experts say it went farther than anyone expected on its first try, and Lee has pledged to keep pushing next year.

In Colorado, lawmakers just passed a bill creating a new state office to develop 3,500 new housing units targeted to middle-class families. And in Hawaii, lawmakers recently passed several bills that make it easier for the state to build mixed-income condos with 99-year leases, similar to how public housing works in Singapore.

But where this model may already most clearly demonstrate the government’s power to increase housing supply is in Montgomery County, Maryland — a suburb just outside Washington, DC. The local public housing authority there is on track to build nearly 9,000 new publicly owned mixed-income apartments over the coming years, by leveraging relatively small amounts of public money to create a revolving fund that can finance short-term construction costs. One of their initial projects — 268 new apartment units located near a planned bus rapid transit line — is set to be finished this year.

“What I like about what we’re doing is all we have effectively done is commandeered the private American real estate model,” said Zachary Marks, the chief real estate officer for Montgomery County’s housing authority. “We’re replacing the investor dudes from Wall Street, the big money from Dallas.”

State and local governments don’t have the best track record at quickly spinning up new affordable housing, and most public housing authorities lack staff like Marks, experienced in this kind of real estate acquisition. But the public sector can start with acknowledging they have the tools and resources that make it easier to build even in weak economic periods, plus no voracious investor to satisfy at the end of a project. Governments could even step in now to buy half-finished housing from companies that suddenly find themselves unable to make their financing math work.

While Montgomery County is a liberal area in a blue state, Marks notes there’s nothing about what they’re doing with the Housing Production Fund that heavily relies on government subsidies, which is typical of traditional affordable housing projects. “This kind of project is better for the taxpayer, it avoids a concentration of poverty, and it’s very capitalist in my view,” he said. “A lot of this is just convincing governments that you don’t even know how powerful you actually are.”

States can become public developers in different ways

When Meghan Kallman was first elected to the Rhode Island state Senate in 2020, she knew she wanted to focus on housing. The pandemic had intensified housing insecurity in her district, and Rhode Island ranked near the bottom nationally for building new units. And while an early 1990s law already required every Rhode Island city and town to have at least 10 percent of its housing be affordable to low and moderate-income households, only six out of 39 municipalities actually met that target in 2020.

Kallman said this all showed more aggressive state action was needed. With the backing of Reclaim RI, an activist group formed by leaders of Bernie Sanders’s 2020 presidential campaign, Kallman proposed the Create Homes Act, legislation to launch a new state agency that could build, own, and operate housing.

The idea, Kallman explained, is to have an agency that could develop plans not only for increasing housing supply but also for maintaining and repairing existing housing stock. She introduced it near the end of this year’s session, and though it didn’t pass, it picked up significant support, including Rhode Island’s Senate President Dominick Ruggerio. Kallman thinks they’re well positioned to get it over the finish line in 2023.

“What would it look like to have a system where rental units are state-administered, and it falls into the category of a public good that people can avail themselves of?” she asked. “I think that’s a really interesting proposal and something I’m really excited to support and see how it works out.”

Andrew Friedson, a Montgomery County councilmember who has been leading efforts in Maryland to address his region’s housing shortage, told Vox he’s been supporting the public development idea because “there is now much broader recognition and understanding” that governments have to be more aggressive. “The status quo and even marginal improvements are not going to come anywhere close to meeting the need,” he said.

Indeed, states typically have not attempted any of this. While states since the 1980s have taken a leading role in funding and administering affordable rental housing, developing and owning mixed-income housing has not been something governments in the US have done, or even seen as their responsibility.

Mark Shelburne, a national housing policy consultant, said the public developer idea holds promise. “It’s pretty rare that someone actually has a truly new idea in this space,” he said. “Pretty much every idea out there has already been said before — and who knows, maybe at some point in history someone had this same concept and we’ve all just forgotten — but I will say this does seem like a new idea today.” Shelburne added that the concept “absolutely can be viable” if the authorizing legislation is set up properly and flexibly.

Paul Williams, the founder and director of the Center for Public Enterprise, a recently launched think tank, has been leading efforts to promote the idea of state and local public housing developers.

It’s not an immediate fix — “getting out of this mess will take no less than 20 years,” he wrote in an essay last August on solving the housing crisis — but it’s one of the only viable solutions he sees.

“Congress is not going to fund new public housing, we can’t even get them to fund the capital backlog,” Williams told Vox, referring to the billions of dollars needed for outstanding repairs and maintenance of existing federal housing units. “So getting local and state governments to create public enterprises to do public development is what I see as the way to move this forward.”

States are rediscovering their self-interest

Why did states retreat from developing their own affordable housing, anyway? Part of the reason is that the federal government stepped up to the plate, with the Housing Acts of 1937 and 1949, and establishing the US Department of Housing and Urban Development in 1965. States and local governments were happy to let HUD take over, but when federal public housing started to lose support in Congress in the 1970s, and the Reagan and Clinton administrations slashed HUD’s budget in the ’80s and ’90s, there was no real state and local infrastructure around to fill the void.

Shekarchi, the Rhode Island House speaker, noted that housing has always been a difficult and complicated issue, and on the local level, many communities balk at any hint of affordable housing construction and associated tax increases. “Many people don’t want it because they think affordable housing means more traffic or diminishing of home values or crime or drugs or low-income people,” he said. “And I think state government is reflective of those views. We have two-year election cycles and legislators are reflective of the public.”

But despite these NIMBY attitudes, some local policymakers are beginning to recognize their own self-interest in stepping up on housing development, capitalizing on tools and public ownership that can create value and be reinvested into the community.

“Both because we don’t have to meet the private sector return requirements, and because it’s much easier to set policy on things that you own, all of that [revenue] just gets poured back into overall housing production and operation,” said Marks, of Montgomery County. “A lot of the time I’m talking to people about the short-term benefits [of our development model], but frankly the biggest benefit is that value that we’re creating very slowly over 20 years, so that the people sitting in my chair in two or three decades will have a ton of resources that can be realizable by them then, to continue the mission.”

Stanley Chang, a state senator in Hawaii who has been leading efforts in his state to promote social housing, says he spent a lot of time visiting places like Vienna and Singapore to understand regions that actually solved their housing shortages. “I’m not arguing we should copy-and-paste but I do think we should learn the lessons from these places,” Chang said.

Kallman, the Rhode Island state senator, says she doesn’t view her proposed public developer bill as a revenue generator for the state, though she acknowledges it could indeed turn out to be one. “For me this is primarily about the state stepping up,” she said. “To solve a housing problem that is affecting huge numbers of people.”

Campaigns may have lost their most effective — and annoying — outreach tool

Originally published at Vox.com on July 19, 2022

Text messaging — with their markedly high “open rates” — is an especially potent form of political outreach: Since 2016, texting has become one of the most appealing ways for campaigns to engage voters or supporters, especially as so many have ditched their landlines.

But as part of a broader effort to crack down on the fast-growing problem of spam calls and texts, mobile carriers like AT&T, T-Mobile, and Verizon have been rolling out a new policy that affects any business, nonprofit, union, or campaign that intends to send at least 3,000 messages per day.

It means that political campaigns and advocacy groups have fewer rights to text you, if you haven’t affirmatively opted in to receive the messages — and it’s causing distress among those groups ahead of the midterms.

The changes — known as “10DLC” for the 10-digit long codes that high-volume businesses and apps use to text local numbers — will require organizations to register with the Campaign Registry, a subsidiary of the Milan-based communications firm Kaleyra. Carriers will impose higher messaging fees and slower delivery rates for any group that fails to register, and in some cases block them from delivering messages altogether.

Every registered group must also limit their texts only to users who have opted-in to receive them, a massive change from the status quo. Progressive groups warn this new requirement will yield dire democratic consequences — particularly for the most marginalized who are typically ignored by elites and politicians. Others suggest these groups have grown too reliant on unsolicited texting, and that it’s not essential to successful mobilization.

Campaigns had a preview of what the future might look like if they fail to comply with the new 10DLC rules. Last month, a Democratic National Committee texting campaign, meant to notify voters that it was primary day, provide them with information on making a voting plan, and invite them to attend a free virtual training on mobilizing others, was suspended after at least five recipients of the roughly 50,000 registered complaints about the unsolicited blasts.

Recipients of the DNC texts had been invited to opt-out of future messages by texting back “stop,” and the DNC said their records indicated that everyone they texted had expressed interest in receiving the messages either by opting in or having affirmatively engaged with the committee before in other ways. Still, the handful of complaints triggered an audit, and the committee’s ability to send messages from that particular number is still suspended.

“This shutdown … is nothing less than the silencing of core political speech at the hands of a private company pursuant to an ambiguous, unwritten policy,” DNC executive director Sam Cornale wrote in a letter to the CEOs of AT&T and T-Mobile. “As we have explained, in the wake of unprecedented voter disenfranchisement efforts, text messages have become a critical tool in combatting misinformation and attempts to disenfranchise in real time. … The health of our democracy demands you act now to change this harmful policy.”

Scott Goodstein, who led Barack Obama’s pioneering texting program during the 2008 cycle and was the lead digital adviser to Bernie Sander’s 2016 campaign, said the Democratic committees’ defense of unsolicited messages is short-sighted.

“The DNC has no incentive to think about this differently,” he told Vox. “Spamming fundraising donor lists works and helps politicians raise a few extra bucks, but spamming low-turnout voters may not help these politicians communicate with this transient but critical portion of the electorate. What if we went into these communities and held different events to get opt-in? It’s a lot more work but that’s the point. They’re thinking short-term and not long-term.”

10DLC is the mobile carrier solution to spam text messaging

There’s little question anymore that people are being flooded with unsolicited texts: Aside from just being annoying, government agencies say the increased spam is leading to higher rates of fraud. In 2020, criminals stole at least $86 million through frauds originating in spam texts — with examples like targeting seniors on Medicare, claiming to offer extended warranties for cars, or impersonating Covid-19 contact tracers. The median amount customers lost was $800.

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to stop robocalls and auto-dialers that contacted individuals without their consent. But organizations that send texts have been able to operate in a legal gray area, by having individuals press “send” on mass-texting tech platforms — thus blurring the line between automated and human outreach.

Mobile carriers say their new 10DLC policy is a response not only to customer dissatisfaction but also to a political climate that’s been urging more serious intervention.

Sen. Richard Blumenthal and Rep. Raja Krishnamoorthi, both Democrats, wrote separate letters to the Federal Communications Commission over the last year urging greater attention and action on the issue of spam calls and texts.

The 10DLC policy was supposed to be rolled out last year but was delayed following requests from members of Congress to wait until after the 2021 elections. The changes took effect in March.

Mike Donoghue, the co-founder and CEO of Subtext, a company that connects media organizations, artists, and other creators with audiences over text, said his company has welcomed 10DLC and thinks it will help build and retain trust with the public.

“A lot of other players have tried to ignore it or pretend it’s not going to happen but it’s already happened and we’re not going back,” he told Vox.

Goodstein, who now runs a progressive digital marketing agency called Catalyst Campaigns, says he doesn’t actually believe the 10DLC regulations will be effective in controlling political spam texts, in part because the penalties are so weak and there’s little stopping a company from just contacting individuals who complain or opt-out from a different long-code number.

“It’s just whack-a-mole with 10DLC until there’s real pain,” Goodstein said, noting that with CAN-SPAM, a 2003 federal law passed to block unsolicited email, violators faced hefty fines, prosecutions, and even jail time. “Which is why you didn’t get spam from Pizza Hut,” he added.

Advocates warn 10DLC will lead to voter suppression

Progressive advocacy groups and Democratic campaign leaders have been working for over a year to try and convince mobile carriers to exempt them from 10DLC rules. Democratic lawyers have thus far urged federal campaigns to not register, in part to avoid conceding the point that 10DLC should include political groups.

In a letter sent to the CEO of AT&T, Congressional Black Caucus PAC chairman Rep. Gregory Meeks argued that the proposed 10DLC policies “will lead to the disenfranchisement of minority voters across the country” by limiting their ability to do voter education outreach.

And in February, in joint letters to T-Mobile and AT&T’s CEOs sent by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the Democratic Governors Association, the Democratic Legislative Campaign Committee, and the DNC, the executive directors collectively urged against implementing the opt-in requirement for political texts.

Doing so “would have catastrophic implications for the ability of political parties, candidates, and other political committees to engage with their volunteers to communicate regarding voter education, GOTV messaging, and other essential political speech,” they wrote. “You are proposing to drastically curtail political expression at the core of our democratic system, speech that is at the very heart of First Amendment protections.”

The executive directors pitched what they saw as a compromise plan, where political campaigns and committees would still register with the Campaign Registry, but not be subject to any opt-in requirement so long as they give individuals the option to opt-out. Requiring opt-in “would undermine our democratic process and hinder access to the polls,” they wrote.

Five months later, on July 12, Anthony Russo, vice president of legislative affairs for T-Mobile, wrote back rejecting this idea, saying requiring opt-in is essential to protecting customers. “There is no confusion about this requirement — simply unwillingness to abide by it,” Russo wrote. “While many political, civic-oriented, and other non-profit organizations have the laudable intentions, T-Mobile’s primary concern is for its customers and ensuring they receive only those messages they want to receive.”

Elvin Bruno, the director of mobile fundraising at Grassroots Analytics, a firm that helps Democratic candidates raise money, told Vox the rollout of 10DLC has had a dramatic impact on campaigns so far, especially smaller campaigns on the local and statewide level.
“The regulations have been inconsistent, poorly communicated, and all the deadlines and dates have changed,” he said. “I can’t stress enough how bureaucratic and unclear it has been to navigate, even for folks like us who are working with the largest political operations in the country.”

Republican campaigns haven’t made as much noise against the proposed regulations, though they say 10DLC is part of a larger threat rooted in the power of technology companies to discriminate.

“From Google suppressing Republican GOTV and fundraising emails to mobile carriers censoring and policing political speech, Big Tech is blatantly trampling on First Amendment rights,” said Emma Vaughn, a spokesperson for the Republican National Committee. “Republicans will continue leading the fight to protect our rights against Big Tech billionaires. For them, it’s all about power and control — if they can silence political candidates, they can silence you.”

Mobile carriers, and their trade association, CTIA, say they’ve continuously engaged with political groups and collected feedback throughout the process, but stand by 10DLC and enforcing industry best practices.

“We believe customers should be able to control which entities send them bulk text messages, which is why we’re requiring bulk message senders to acknowledge they have recipients’ consent before participating in our program as a registered sender,” said Alex Byers, a spokesperson for AT&T. “This approach enables customers to receive messages they want and protects them from unwanted robotexts.”

When asked about the concern about blocking get-out-the-vote text messages ahead of the November election, Byers noted that customer complaints are the primary metric carriers would look at to determine if a message is unwanted or spam. “Our experience is that informational texts like these would be highly unlikely to generate many complaints,” he said.

Donoghue of Subtext thinks the professed concern that 10DLC will inhibit voters from learning things like changes to their polling location are largely smokescreens, and most political groups simply resent the idea that they should get consent before texting.

“If you randomly sampled 10 text messages from a given campaign, I suspect the vast majority are going to be asking people to do something, like signing a petition or making a donation,” Donoghue said. “But campaigns shouldn’t want to send messages that people find annoying. I think a lot of folks are starting to realize that.”

The FCC has flipped-flopped on the issue, though more federal intervention may be coming

Back in 2012, Goodstein and his firm Revolution Messaging petitioned the FCC to clarify that the Telephone Consumer Protection Act did not distinguish between emails that turned into texts, and regular texts. This was a texting loophole popular at the time, and Goodstein saw his crusade as a consumer protection mission, given that individuals pay for the cost of receiving text messages, unlike receiving political flyers in the mail, or emails. Even if your phone plan includes unlimited texts, senders are not privy to that information ahead of time.

In late October 2012, just before the presidential election, a Virginia marketing firm that had represented Republican candidates began sending out anonymous texts with attacks against Barack Obama. “If re-elected, Obama will use taxpayer money to fund abortion. Don’t let this happen,” read one of the messages. “Medicare goes bankrupt in 4000 days while Obama plays politics with senior health,” read another. By using the email-to-text loophole, the marketing firm was able to bypass the TCPA requirement for opt-in consent. When reporters eventually figured out who was behind the unsolicited texts, the founder of the firm claimed they were exercising their First Amendment rights.

In 2015, then-FCC chair Tom Wheeler finally ruled on the petition, and clarified that “consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.” It was a win for Goodstein and those who believed political texts without opt-in consent were TCPA violations and simply unethical.

But in 2018, the P2P Alliance, a coalition of providers and users of peer-to-peer (P2P) text messaging, filed a new petition with the FCC, asking for exemption from TCPA’s rules. In June 2020, the FCC, chaired by Ajit Pai, issued a ruling affirming P2P was distinct from autodialing, a win for campaigns and advocacy groups that wanted assurance they could contact people without opt-in consent.

Goodstein says the FCC must reverse this decision and close the loopholes that allow political spammers to run amok. The new 10DLC rules, he believes, won’t be enough to stop bad actors. The P2P Alliance spent over $130,000 lobbying in 2021, and over $50,000 this year.

Representatives from the Democratic political committees welcome the FCC’s attention in this area, but they say expecting action ahead of the 2022 elections is unrealistic.

Will Wiquist, an FCC spokesperson, pointed to a proposal the agency’s chairwoman, Jessica Rosenworcel, circulated to her colleagues last October. Rosenworcel proposed launching a rule-making process to require mobile wireless providers to block illegal text messaging. If adopted, the rule-making would explore steps like network level blocking and applying caller authentication standards to text messaging.

“The item has yet to be adopted and remains up for a vote by the full Commission,” said Wiquist.

Heading into November, some progressive advocates and Democratic leaders say the 10DLC rules pose an existential threat to a free and fair election. Restrictions on text messages will enable more voter suppression, they warn, and opportunities for misinformation to spread, unchallenged. Goodstein says the opposite is true, that allowing unsolicited political texts to flow freely will annoy people to the point where they just tune out everything.

“Just like sending hundreds of robocalls a few days before elections, some portion of these undecided voters are going to become disenfranchised,” he said. “They’ll be confused on what to believe, and less motivated to engage.”

School funding lawsuits are long, frustrating, and crucial for fighting inequality

Ever since the mid-1980s, policymakers and researchers have debated the question of whether public school funding really matters. Yes, some school districts have more money per student, but is it money that helps improve student achievement or is it better teachers? Is it increased spending that boosts test scores or higher-quality curriculum and nicer facilities?

Both Republicans and Democrats have capitalized on the debate when it proved convenient, suggesting maybe schools were getting too much and needed to embrace their favored policy reforms instead.

If this all sounds rather silly to you, you’re not alone. Money pays for teachers, after all. For facilities. For textbooks and technology. Thankfully, decades of research has mounted to push the tiresome debate in a much more constructive direction. A raft of studies now show sustained increases in school funding lead to better outcomes for students, as measured by higher test scores, higher graduation rates, and even higher wages.

It’s still not entirely clear where said funding increases should go. More tutors? After school programming? Music programs or athletics? But spending too little overall, researchers feel confident in saying, will hurt kids’ chances.

Armed with this knowledge, advocates for public schools still face a problem. How do you get state legislators to spend more on education? While school funding is a mix of local, state, and federal dollars, the least amount comes from the federal government. Local communities can raise property taxes, but most cities can only tax their residents so much, and relying on local taxes alone is a surefire way to ensure schools in rich areas are better off than schools in poor ones. States, therefore, play an important role, but as any education activist can tell you, it can be awfully hard to get state lawmakers to act without pressure.

That’s where state school funding lawsuits come in. Since 1973, the Supreme Court has held there exists no federal right to an equal education, so lawyers and advocates have turned to arguments based on state constitutions instead. These cases, where students or parents or even school districts themselves sue for more funding, have emerged as a key way to get more money into low-income schools. “Very few major changes in school funding have ever taken place without judicial action,” said David Knight, a professor of education finance at the University of Washington College of Education.

But these cases take years to litigate, are hard to win, and even if a plaintiff does win, state lawmakers often drag their feet on remedies, leading to even more protracted court battles. As of 2019, as tallied in the book A Federal Right to Education, plaintiffs prevailed in school funding lawsuits in a state’s highest court in 23 states and lost in 20 states.

A new school funding lawsuit, first filed in 2014, will soon be decided in Pennsylvania. The outcome matters not only for families in Pennsylvania but for school advocates nationwide who are trying to decide if these cases still make sense for them to pursue. While the lawsuits tend to be highly state-specific, some legal experts say that judges have signaled something of a retreat in enthusiasm for intervening in public school finance over the last decade, though there are enough counter-examples (like in Kansas and New Mexico) that it can be hard to draw firm conclusions.

“Pennsylvania will be a real bellwether on future cases,” said William Koski, a Stanford professor who focuses on education law and policy. “It’s why it’s being so closely watched by folks around the country.”

Even the defense concedes more money would help Pennsylvania students

One of the key ways states can mitigate school inequity is by distributing more money — reducing reliance on local property taxes to drive dollars into classrooms. But Pennsylvania ranks 45th in the nation for its state share of funding for K-12 education, picking up 38 percent of the costs to educate kids compared to a national average of 47 percent. “Pennsylvania has long been one of the most inequitable states in the country,” said Bruce Baker, a Rutgers University professor specializing in education finance.

“Taxable wealth varies dramatically among school districts,” Katrina Robson, an attorney for the plaintiffs, explained in court. For example, she said, if the small rural Shenandoah Valley district, one of the plaintiffs, taxed at nearly double the average rate in the state, it could still only raise about $4,000 per student. New Hope-Solebury in Bucks County, by contrast, could tax at the average rate, and raise upwards of $21,000 per student.

Matthew Kelly, an education professor at Penn State University, testified that his analysis showed the wealthiest school districts in Pennsylvania spend $4,800 more per student than the state’s poorer districts, and school districts would need an additional $4.6 billion to meet a target for adequate funding set by the state.

In practical terms, funding disparities can lead to situations like some kindergartners only getting 15 minutes of recess per day because a school can’t afford more staffing. Nonwhite students from low-wealth districts are nearly twice as likely to be taught by inexperienced teachers.

Defendants argued that even if disparities exist across Pennsylvania, students still receive more on average than children in other states, as Pennsylvania ranks near the top nationally in per-pupil spending. “The narrative that Pennsylvania drastically underfunds education is simply not accurate,” said a lawyer for House Speaker Bryan Cutler in court.

The lawyer also pushed back on the idea that a judge should intervene in education policy decisions. “You cannot conflate things that are nice to have with what the Constitution requires,” he argued. “Not funding a weight room is not unconstitutional.” In other instances, the defendants criticized the way the petitioner school districts spent the funds they did have, like on iPads instead of on cheaper Chromebooks.

In one of the most staggering but revealing parts of the trial, lawyers for the defense questioned why a school district needed to provide high-quality course offerings to all of its students anyway. “What use would a carpenter have for biology?” a defense lawyer asked. “What use would someone on the McDonald’s career track have for Algebra 1?”

The plaintiffs feel the four-month trial, which ran between November and March, went well, with even the defense’s key expert witnesses conceding that increases in spending can help students.

Eric Hanushek, a Stanford economist, has long argued that increased spending does not necessarily lead to improved benefits for kids, though his claims have largely rested on decades-old studies with crude methodologies. Hanushek mostly dismisses the more empirically rigorous research that has emerged in the 21st century, so much so that Baker calls Hanushek “education’s merchant of doubt.”

“I believe that money can matter,” Hanushek said in the trial. “It probably, at times, matters. The problem is that we don’t know when it’s going to matter.” He acknowledged that if districts “use our resources well” they can successfully educate low-income students.

A decision in the trial could come later this fall.

These cases turn largely on local political conditions and individual judges

Education historians analyze the history of school funding lawsuits in three waves. The first wave of litigation was relatively short — from 1971 through 1973 — and hinged on the 14th Amendment’s equal protection clause. Lawyers successfully made this argument in two federal district courts and in California’s Supreme Court, but the US Supreme Court rejected it in its San Antonio Independent District v. Rodriguez decision.

So lawyers and advocates pivoted. In the second wave of lawsuits, from 1973 to 1989, they made arguments that school spending systems were unconstitutionally inequitable, and relied heavily on state education provisions to make their case. This wasn’t the most successful era, with plaintiffs winning in only seven out of 22 final decisions. Though of those states where plaintiffs did win, according to Koski, per-pupil spending did become more equal across school districts and more targeted to less-wealthy areas.

The third wave began with Kentucky’s Supreme Court decision in 1989 and continues through today. Rather than arguing for “equitable” or “equal” education, advocates have found success arguing that state constitutions guarantee all students an adequate level of education. Framing arguments around minimum levels of “adequacy,” lawyers have found, appeals to political values around ensuring opportunity and seems to offer more deference to those sympathetic to local control arguments. There’s no doubt that politics play a significant role in the success or failure of these trials.

“These cases are all political,” Koski said. “Politics matters more than constitutional language.”

It should be noted, though, that simply winning a case does not mean the actual remedy will be good or will not lead to new problems.

In Washington state, plaintiffs won their state school funding lawsuit in 2012, with the state Supreme Court ruling the legislature had failed to meet its constitutional duty for the state’s 1.1 million students. After initial resistance, this McCleary decision eventually prompted Washington lawmakers to increase funding for public schools by a whopping $7 billion in new dollars over the last decade. However, the McCleary decision also massively expanded funding gaps between wealthy and poor school districts in the state that didn’t exist before, driven by a flawed funding formula lawmakers used to distribute the new aid.

“Everyone did get more money, but the wealthiest districts got the most,” said Knight of the University of Washington. “One takeaway for Pennsylvania is you’ve got to take your time to get the remedy right, you can’t just rush that part.”

In Pennsylvania, advocates have been working to mobilize political pressure on their elected officials in anticipation of a final court ruling. Susan Spicka, executive director of the statewide advocacy group Education Voters of PA, said they’ve always viewed the lawsuit as “one piece of the toolkit” to fix public schools, and are clear that the path ultimately lies with the legislature in Harrisburg.

“The school funding lawsuit is just really helpful to get people to understand who is failing who, because a lot of people will blame their school board or think it’s all on the local level,” she said. “With the lawsuit we can say that in most cases your local school district, that’s already raising taxes, is doing the best it can, but the state is failing on its end.”

Looking ahead at future cases

The lawsuits can be slogs. New Mexico is a state where advocates found success in court but are still struggling with lawmakers to enforce their ruling. “The legislature did take some steps but three years later there’s still a lot to be done,” said Ernest Herrera, a Mexican American Legal Defense and Educational Fund attorney representing the plaintiffs. “Where we’re at is enforcing our judgment, doing discovery, conducting depositions to find how far the state has come and what is still left.” Herrera, who co-filed the case in 2014, acknowledged “it’s been a long battle.”

Even though they can be arduous, it’s hard to imagine the cases will disappear, given how widespread school inequity is nationwide and how strong the research is suggesting increased school funding helps kids.

2018 report released by the US Commission on Civil Rights detailed the persistent school funding inequities that remain between high-poverty and low-poverty districts. “Low-income students and students of color are often relegated to low-quality school facilities that lack equitable access to teachers, instructional materials, technology and technology support, critical facilities, and physical maintenance,” the federal report said. The cases are one of the only strategies that have proven, however imperfectly, to drive billions more in new funding to low-income students.

New state cases continue to be filed and litigated. In 2019, the ACLU of Maryland and the NAACP Legal Defense and Educational Fund went to court to reopen a landmark school funding case from 1994. Maryland tried to dismiss the plaintiffs but the Circuit Court for Baltimore City ruled in 2020 that the complaint could continue. In Washington state, education advocates filed a new school equity lawsuit last December, taking on inequitable school buildings, an angle that the earlier McCleary case didn’t focus on. While there have been a few attempts to file new federal school lawsuits in recent years, those cases haven’t proved successful so far, and advocates say the current composition of the US Supreme Court doesn’t bode well for any new revisitation of Rodriguez.

“The position I would focus on now is less about overturning Rodriguez and more about seeking the recognition of a federal right that would protect some form of an adequate education for all children, that would prepare students to be effective and engaged citizens and be college- and career-ready,” said Kimberly Robinson, a University of Virginia law professor specializing in education and public policy. “That said, while yes, I think this adequacy argument is the better one, I still don’t think this current Court with a 6-3 conservative majority would accept it.”

So bumpy state litigation will likely remain. Even if the plaintiffs win in Pennsylvania later this year, the case could be appealed to the state’s high court. Spicka, of Education Voters PA, said they’re prepared for the long fight, and cited the hundreds of people who turned out to rally in support during the four-month trial.

“State lawmakers always pit communities against each other, and this lawsuit was just soul-filling to see rural and urban communities come together to say: Harrisburg, we need you to fund our schools,” she said. “We had immigrants and communities of color standing side by side with rural whites, and there were just no school funding hunger games.”