Category: reason

The 2010s Were a Terrible Decade for Housing Construction

A lot of things happened in the past 10 years. A boom in housing construction was not one of them. The 2010s will go down as a decade of historically low housing starts, resulting in higher home prices and rents for some and longer commutes for others.

Last week, Freddie Mae Deputy Chief Economist Len Keifer tweeted out a graph comparing new housing starts over the past six decades. The results are startling.

In the past 10 years, construction started for 9.8 million new housing units in the U.S. That compares to 15.4 million units in the last decade and 13.7 million in the decade before that. (Keifer notes that those numbers don’t include manufactured housing, a traditional source of low-income housing. It increased a little, but not enough to change the pattern.)

The national numbers match what we’ve seen in some of the highest-cost housing markets in the country.

New York City added 509,000 housing units, or about 2.2 units per new job, from 2001 to 2008, according to a recent report from the city’s Department of Planning. It added only 457,000 units, or .5 new units per new job, from 2009 to 2018.

In 2018, the Californian authorities permitted 117,892 new units of housing for the state’s nearly 40 million residents, according to California’s Department of Finance. By comparison, the Golden State issued 131,732 housing permits in 1975 (the earliest year data is available), despite having only 21.5 million residents.

The question isn’t whether government regulation has constrained supply. Rather its which government regulations have restricted supply the most.

Some scholars like to point to zoning restrictions that prevent developers from constructing taller, denser apartment buildings in high-demand urban areas. Others stress urban growth boundaries that block new suburban housing.

On top of this are historical preservation laws, environmental regulations, and prevailing wage requirements for construction workers. Whatever their other policy merits may be these all increase the costs of building new homes.

“The bigger background narrative is NIMBYism generally,” says Salim Furth, an urban policy expert at the Mercatus Center. “It’s not that localities have planned for housing and have just done it in a way that doesn’t produce quite enough. There’s a visceral ‘just don’t build anything here’ attitude that is prevailing in most American suburbs today.”

A 2016 National Association of Home Builders (NAHB) study estimates that regulatory costs have increased the price of a new single-family home by 30 percent in the first half of the decade. Another NAHB study found that regulations account for a third of new multifamily regulatory costs.

The people who bear the burden of these regulations are renters and new home purchasers who find themselves shelling out more money for the same amount of housing.

An October report from Apartment List put the percentage of cost-burdened renters (those paying more than 30 percent of their income in rent) at just under 50 percent. In 1960 only 24 percent of renters were cost-burdened. Some have chosen to save on housing by spending more time behind the wheel: The Washington Post reports that Americans commuting longer than ever before.

Policy makers are starting to wake up to the problem of a government-induced housing affordability crisis. Occasionally they are even passing good policies.

California has significantly deregulated the construction of granny flats, resulting in a massive spike in the construction of those units in places like Los Angeles. Seattle has done the same, while also upzoning some city neighborhoods to allow for denser residential and commercial development. Oregon and Minneapolis both abolished single-family-only zoning laws.

Alas, these reforms have often been coupled with counterproductive price controls. Both California and Oregon passed caps on rental price increases this year. New York similarly strengthened pre-existing limits on rent increases in New York City. It has also given local governments the authority to pass their own rent control laws.

On balance, Furth believes housing policy is moving in the right direction at the federal and state level. But he thinks that is counteracted at the local level, where the trend is toward giving planners more power to micromanage what new housing will look like.

“That allows local elected officials to have a seat at the table designing and planning everything. They have certain priorities that never include affordability,” Furth tells Reason. Local governments have an incentive, he says, to boost tax revenue above all else. That leads them to zone for higher-quality housing that will attract wealthy residents who pay a lot in taxes but consume few services.

In California, the high levels of discretion built into the permitting process allows activists and other self-interested parties to slow down new development. But other cities, such as Des Moines, are moving in the direction of zoning for higher-quality, higher-priced homes.

Some cities, such as Houston, have managed to stay affordable despite tremendous growth precisely because local officials have decided not to micromanage what new housing will look like or where it can be built.

Getting other cities to embrace a lighter-touch regulatory approach requires policy changes. It also requires people to accept having less control over what other people do with their property.

“We need to change the way that we think about property and neighbors,” says Furth. “We have a pattern of thinking that is just going to lead to worse and worse outcomes.”

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Why Is the Chief Justice of Ohio’s Supreme Court Lobbying Against Sentencing Reforms?

Ohio lawmakers trying to pass sentencing reforms have faced opposition this year from the usual suspects, such as lobbyists for prosecutors and law enforcement. But they’ve also run into vocal criticism from an unexpected source: Ohio Supreme Court Chief Justice Maureen O’Connor.

It is unusual—and it may damage the objectivity and independence of the court system—for sitting Supreme Court justices to lobby for or against legislation. But that hasn’t stopped O’Connor from jumping into the middle of the legislature’s deliberations over a pair of criminal justice reform proposals. In newspaper op-eds, public appearances, and letters to members of the state Senate, O’Connor, who happens to be a former prosecutor and lobbyist, has repeatedly argued against a bill that would downgrade some felony drug possession charges to misdemeanor offenses.

O’Connor, of course, has a First Amendment right to speak about legislation and to criticize the legislative process if she wants. But she seems to recognize the unusual nature of her advocacy.

“You may think it unprecedented to receive a letter from me, as Chief Justice, that addresses my concerns about [Senate Bill 3],” O’Connor wrote in a December 3 missive to state legislators, a copy of which was obtained by Reason. But, she adds, it is “my duty” to speak out about issues that “affect the administration of criminal justice and the operation of Ohio’s courts.”

 

 

 

 

 

 

 

 

 

 

 

Sen. John Eklund (R–Munson), the sponsor of the bill in question and one of the recipients of O’Connor’s letter, agrees that it’s unusual to get a letter from a sitting Supreme Court justice advocating against a specific piece of legislation.

Eklund’s bill is one of two major criminal justice reform measures that have been jockeying for legislators’ support in Columbus this year. He says says it’s rooted in the idea that people deserve a chance to prove they can learn from past mistakes.

“We want people to get better and move on to lead productive lives, while also ensuring that traffickers are arrested and stay behind bars,” he explains.

One way Eklund’s bill would do that is by reclassifying low-level drug possession crimes, which are now charged as felonies in Ohio, as misdemeanors. That would give some individuals convicted of those nonviolent offenses the opportunity to seek treatment rather than being incarcerated, and it would not limit future job prospects in the same way a felony conviction does.

At the same time that she’s been lobbying against Senate Bill 3, O’Connor has been pushing the legislature to approve the other criminal justice bill it was considering this year: House Bill 1. In her December 3 letter, O’Connor highlights the House bill’s support from law enforcement groups—she specifically name-checks the Ohio Prosecuting Attorneys Association—as a reason to prefer it to the Senate proposal.

The House bill also seeks to shunt some drug offenders into treatment programs, but it does not reclassify some drug felonies as misdemeanors. O’Connor and others claim that the cudgel of a felony charge is necessary to get offenders into treatment.

“Downgrading the underlying offenses will only reduce one of these incentives and the likelihood of a lasting recovery,” the chief justice wrote in a September 19 letter to Eklund.

There’s no law or rule that says judges can’t lobby for legislation. Indeed, Jonas Anderson, a professor of law at American University who has written about judicial ethics and lobbying, points out that there are times when judicial input can offer important information to legislators, particularly when they can provide technical information about the workings or needs of the justice system.

But judges should be careful about crossing the line into pushing or opposing specific policies, he adds.

“We think of the judicial system as a place where you can get a decision about a dispute that’s free from political considerations,” says Anderson.

In lobbying against Senate Bill 3, O’Connor has indeed made some technical arguments about how the court system would operate under the new sentencing guidelines proposed by the law. But her objections are overwhelmingly directed at the underlying policy.

In that September 19 letter to Eklund, for example, O’Connor spends two pages arguing that 81 percent of Ohioans sentenced to prison for low-level drug offenses last year had prior criminal convictions and therefore would not be eligible for the treatment programs Eklund is proposing to use as an alternative to jail time. (Of course that means 19 percent of those offenders—more than 300 people, by O’Connor’s own count—would stand to benefit.)

That argument, like the one she makes about what steps are necessary to get drug offenders into treatment programs, are not dispassionate analyses of the workings of the judicial system—such as, for example, informing lawmakers about how a policy change might affect judges’ workloads. Instead, they are fundamentally prescriptive arguments rooted in policy preferences.

O’Connor has a long history in Ohio politics, both behind the bench and as a lobbyist. It’s that career that might best explain her involvement in the debate over sentencing reform.

Before becoming the first female chief justice in the state’s history, O’Connor was a magistrate and then a judge for the state’s Court of Common Pleas. She resigned from the bench in 1993 to become a prosecutor in Summit County. There, according to her official state Supreme Court bio, she “aggressively prosecuted repeat offenders, violent criminals, and public officials who committed ethical violations or improprieties, and lobbied the General Assembly for tougher laws on rape and gang-related offences.” She won accolades from Mothers Against Drunk Driving and other victims’ rights groups that advocate for harsher penalties within the criminal justice system. From there, she was elected as lieutenant governor in 1998.

O’Connor returned to judicial work in 2003 after being elected to the state Supreme Court the previous year. She was elected as the court’s chief justice in 2010, and re-elected to a second term in that position in 2016. O’Connor, who is 68, will be forced to retire when her current term expires in 2022 under Ohio’s law prohibiting judges from running for re-election if they are over 70.

After a career defined by criss-crossing the dividing lines between branches of government—and by advocating for tougher criminal justice legislation both from inside the executive branch and as an outside lobbyist—O’Connor apparently thinks it appropriate to tell state lawmakers what to do. Indeed, this is not the first time she’s tried to stamp out sentencing reforms. In 2018, she penned op-eds telling voters to oppose a ballot measure that would have reduced drug possession penalties in order to keep low-level nonviolent offenders out of the prison system. Passage of the measure would be “catastrophic” for Ohio, she wrote. Not exactly the sort of dispassionate analysis one would hope to read from the head of the state’s highest court.

Voters listened, and they defeated that proposal at the ballot box last year.

As 2019 drew to a close, O’Connor has amplified her opposition to SB 3. Two weeks ago, she authored an op-ed arguing that transforming some drug possession felonies into misdemeanors “would be a serious mistake.” She has used speaking appearances at legal forums to litigate her opposition to the sentencing reforms included in SB 3.

Despite a flurry of legislative activity in December, state lawmakers ultimately punted consideration of SB 3 until next year.

By using her authority as the state’s top jurist to parrot talking points from prosecutors and law enforcement lobbyists, O’Connor may yet succeed in stomping criminal justice reform efforts, but she also undermines her own credibility and that of the state’s court system. The legitimacy of the judiciary survives largely because the system is perceived to be separate from the political machinations that go on within a legislature. O’Connor’s willingness to use her judicial position to help shape policy should make Ohioans wonder about her ability to be an objective arbiter.

“Judges shouldn’t be muzzled,” says Anderson, “but lobbying as a judge—not as an individual, but as a judge—risks the independence and objectivity of the judicial branch.”

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Why Is the Chief Justice of Ohio’s Supreme Court Lobbying Against Sentencing Reforms?

Ohio lawmakers trying to pass sentencing reforms have faced opposition this year from the usual suspects, such as lobbyists for prosecutors and law enforcement. But they’ve also run into vocal criticism from an unexpected source: Ohio Supreme Court Chief Justice Maureen O’Connor.

It is unusual—and it may damage the objectivity and independence of the court system—for sitting Supreme Court justices to lobby for or against legislation. But that hasn’t stopped O’Connor from jumping into the middle of the legislature’s deliberations over a pair of criminal justice reform proposals. In newspaper op-eds, public appearances, and letters to members of the state Senate, O’Connor, who happens to be a former prosecutor and lobbyist, has repeatedly argued against a bill that would downgrade some felony drug possession charges to misdemeanor offenses.

O’Connor, of course, has a First Amendment right to speak about legislation and to criticize the legislative process if she wants. But she seems to recognize the unusual nature of her advocacy.

“You may think it unprecedented to receive a letter from me, as Chief Justice, that addresses my concerns about [Senate Bill 3],” O’Connor wrote in a December 3 missive to state legislators, a copy of which was obtained by Reason. But, she adds, it is “my duty” to speak out about issues that “affect the administration of criminal justice and the operation of Ohio’s courts.”

 

 

 

 

 

 

 

 

 

 

 

Sen. John Eklund (R–Munson), the sponsor of the bill in question and one of the recipients of O’Connor’s letter, agrees that it’s unusual to get a letter from a sitting Supreme Court justice advocating against a specific piece of legislation.

Eklund’s bill is one of two major criminal justice reform measures that have been jockeying for legislators’ support in Columbus this year. He says says it’s rooted in the idea that people deserve a chance to prove they can learn from past mistakes.

“We want people to get better and move on to lead productive lives, while also ensuring that traffickers are arrested and stay behind bars,” he explains.

One way Eklund’s bill would do that is by reclassifying low-level drug possession crimes, which are now charged as felonies in Ohio, as misdemeanors. That would give some individuals convicted of those nonviolent offenses the opportunity to seek treatment rather than being incarcerated, and it would not limit future job prospects in the same way a felony conviction does.

At the same time that she’s been lobbying against Senate Bill 3, O’Connor has been pushing the legislature to approve the other criminal justice bill it was considering this year: House Bill 1. In her December 3 letter, O’Connor highlights the House bill’s support from law enforcement groups—she specifically name-checks the Ohio Prosecuting Attorneys Association—as a reason to prefer it to the Senate proposal.

The House bill also seeks to shunt some drug offenders into treatment programs, but it does not reclassify some drug felonies as misdemeanors. O’Connor and others claim that the cudgel of a felony charge is necessary to get offenders into treatment.

“Downgrading the underlying offenses will only reduce one of these incentives and the likelihood of a lasting recovery,” the chief justice wrote in a September 19 letter to Eklund.

There’s no law or rule that says judges can’t lobby for legislation. Indeed, Jonas Anderson, a professor of law at American University who has written about judicial ethics and lobbying, points out that there are times when judicial input can offer important information to legislators, particularly when they can provide technical information about the workings or needs of the justice system.

But judges should be careful about crossing the line into pushing or opposing specific policies, he adds.

“We think of the judicial system as a place where you can get a decision about a dispute that’s free from political considerations,” says Anderson.

In lobbying against Senate Bill 3, O’Connor has indeed made some technical arguments about how the court system would operate under the new sentencing guidelines proposed by the law. But her objections are overwhelmingly directed at the underlying policy.

In that September 19 letter to Eklund, for example, O’Connor spends two pages arguing that 81 percent of Ohioans sentenced to prison for low-level drug offenses last year had prior criminal convictions and therefore would not be eligible for the treatment programs Eklund is proposing to use as an alternative to jail time. (Of course that means 19 percent of those offenders—more than 300 people, by O’Connor’s own count—would stand to benefit.)

That argument, like the one she makes about what steps are necessary to get drug offenders into treatment programs, are not dispassionate analyses of the workings of the judicial system—such as, for example, informing lawmakers about how a policy change might affect judges’ workloads. Instead, they are fundamentally prescriptive arguments rooted in policy preferences.

O’Connor has a long history in Ohio politics, both behind the bench and as a lobbyist. It’s that career that might best explain her involvement in the debate over sentencing reform.

Before becoming the first female chief justice in the state’s history, O’Connor was a magistrate and then a judge for the state’s Court of Common Pleas. She resigned from the bench in 1993 to become a prosecutor in Summit County. There, according to her official state Supreme Court bio, she “aggressively prosecuted repeat offenders, violent criminals, and public officials who committed ethical violations or improprieties, and lobbied the General Assembly for tougher laws on rape and gang-related offences.” She won accolades from Mothers Against Drunk Driving and other victims’ rights groups that advocate for harsher penalties within the criminal justice system. From there, she was elected as lieutenant governor in 1998.

O’Connor returned to judicial work in 2003 after being elected to the state Supreme Court the previous year. She was elected as the court’s chief justice in 2010, and re-elected to a second term in that position in 2016. O’Connor, who is 68, will be forced to retire when her current term expires in 2022 under Ohio’s law prohibiting judges from running for re-election if they are over 70.

After a career defined by criss-crossing the dividing lines between branches of government—and by advocating for tougher criminal justice legislation both from inside the executive branch and as an outside lobbyist—O’Connor apparently thinks it appropriate to tell state lawmakers what to do. Indeed, this is not the first time she’s tried to stamp out sentencing reforms. In 2018, she penned op-eds telling voters to oppose a ballot measure that would have reduced drug possession penalties in order to keep low-level nonviolent offenders out of the prison system. Passage of the measure would be “catastrophic” for Ohio, she wrote. Not exactly the sort of dispassionate analysis one would hope to read from the head of the state’s highest court.

Voters listened, and they defeated that proposal at the ballot box last year.

As 2019 drew to a close, O’Connor has amplified her opposition to SB 3. Two weeks ago, she authored an op-ed arguing that transforming some drug possession felonies into misdemeanors “would be a serious mistake.” She has used speaking appearances at legal forums to litigate her opposition to the sentencing reforms included in SB 3.

Despite a flurry of legislative activity in December, state lawmakers ultimately punted consideration of SB 3 until next year.

By using her authority as the state’s top jurist to parrot talking points from prosecutors and law enforcement lobbyists, O’Connor may yet succeed in stomping criminal justice reform efforts, but she also undermines her own credibility and that of the state’s court system. The legitimacy of the judiciary survives largely because the system is perceived to be separate from the political machinations that go on within a legislature. O’Connor’s willingness to use her judicial position to help shape policy should make Ohioans wonder about her ability to be an objective arbiter.

“Judges shouldn’t be muzzled,” says Anderson, “but lobbying as a judge—not as an individual, but as a judge—risks the independence and objectivity of the judicial branch.”

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Gov. Cuomo’s Plan To Attack Cigarette Retailers Will Fuel New York’s Black Market

New York Gov. Andrew Cuomo is calling for harsher penalties for untaxed cigarette sales in the Empire State, showing yet again that regulators do not understand the relationship between high taxes and black markets.

New York state has some of the highest cigarette taxes in the country. And in New York City, the prices are even higher: a minimum of $13 a pack. Partly due to these high imposed costs, more than half of the cigarettes consumed within New York are estimated to have been smuggled in from states with lower tobacco taxes. These cigarettes are then resold on the black market in New York for less than the price of legal cigarettes.

Cuomo says his agenda for 2020 includes crafting a new state law that will go after any retailers who bring in cigarettes purchased in other states and then try to sell them. Under Cuomo’s proposal, retailers caught selling cigarettes they’ve smuggled from other states could lose their liquor and lottery licenses and even be shut down entirely.

While some regulators deliberately turn a blind eye to how their own high taxes and complicated regulations lead to black markets (see California’s almost comical attempt to legalize recreational marijuana), Cuomo’s State of the State release makes it clear that he knows very well that the state’s own regulations are feeding this behavior:

One byproduct of the aggressive rate of taxation applied to cigarettes in New York City—currently the second highest rate in the nation—is the continuing incentive for unlawful retailers to evade those taxes by breaking the law.  Some unscrupulous retailers persist in trafficking in cheap untaxed cigarettes, a practice that not only undermines efforts to reduce smoking, but also deprives the State of essential revenue for use in enforcement and public health initiatives. It also places law-abiding retailers at a significant competitive disadvantage, while making it difficult for localities and the State to regulate the price of these products with the goal of discouraging people from buying them.

If passed, Cuomo’s law will be used to go after small businesses that are already struggling to turn a profit. Convenience stores operate on tiny margins (often less than 2 percent) and many are dependent on tobacco sales for their profits. The idea that there are tons of “unscrupulous retailers” living high on the hog off smuggled cigarettes is akin to believing that every drug dealer is Pablo Escobar. For every black market tobacco kingpin, there are many more people like Eric Garner, who was confronted by police and ultimately choked and killed partly over suspicion that he was selling untaxed black market cigarettes. We could see more Garners under Cuomo’s proposal, which local police will be expected to enforce.

This proposal certainly doesn’t bode well for Cuomo’s desire to legalize recreational marijuana in New York. Based on the way it taxes cigarettes, New York is likely to have the same problem as California: extremely high taxes and oppressive regulations that will keep the black market fully intact.

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Gov. Cuomo’s Plan To Attack Cigarette Retailers Will Fuel New York’s Black Market

New York Gov. Andrew Cuomo is calling for harsher penalties for untaxed cigarette sales in the Empire State, showing yet again that regulators do not understand the relationship between high taxes and black markets.

New York state has some of the highest cigarette taxes in the country. And in New York City, the prices are even higher: a minimum of $13 a pack. Partly due to these high imposed costs, more than half of the cigarettes consumed within New York are estimated to have been smuggled in from states with lower tobacco taxes. These cigarettes are then resold on the black market in New York for less than the price of legal cigarettes.

Cuomo says his agenda for 2020 includes crafting a new state law that will go after any retailers who bring in cigarettes purchased in other states and then try to sell them. Under Cuomo’s proposal, retailers caught selling cigarettes they’ve smuggled from other states could lose their liquor and lottery licenses and even be shut down entirely.

While some regulators deliberately turn a blind eye to how their own high taxes and complicated regulations lead to black markets (see California’s almost comical attempt to legalize recreational marijuana), Cuomo’s State of the State release makes it clear that he knows very well that the state’s own regulations are feeding this behavior:

One byproduct of the aggressive rate of taxation applied to cigarettes in New York City—currently the second highest rate in the nation—is the continuing incentive for unlawful retailers to evade those taxes by breaking the law.  Some unscrupulous retailers persist in trafficking in cheap untaxed cigarettes, a practice that not only undermines efforts to reduce smoking, but also deprives the State of essential revenue for use in enforcement and public health initiatives. It also places law-abiding retailers at a significant competitive disadvantage, while making it difficult for localities and the State to regulate the price of these products with the goal of discouraging people from buying them.

If passed, Cuomo’s law will be used to go after small businesses that are already struggling to turn a profit. Convenience stores operate on tiny margins (often less than 2 percent) and many are dependent on tobacco sales for their profits. The idea that there are tons of “unscrupulous retailers” living high on the hog off smuggled cigarettes is akin to believing that every drug dealer is Pablo Escobar. For every black market tobacco kingpin, there are many more people like Eric Garner, who was confronted by police and ultimately choked and killed partly over suspicion that he was selling untaxed black market cigarettes. We could see more Garners under Cuomo’s proposal, which local police will be expected to enforce.

This proposal certainly doesn’t bode well for Cuomo’s desire to legalize recreational marijuana in New York. Based on the way it taxes cigarettes, New York is likely to have the same problem as California: extremely high taxes and oppressive regulations that will keep the black market fully intact.

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California Freelancers Sue To Stop Law That’s Destroying Their Jobs. Pol Says Those ‘Were Never Good Jobs’ Anyway.

A nonprofit legal foundation is suing the state of California on behalf of freelance workers who say California’s recently passed Assembly Bill 5 (AB5) will destroy their livelihoods. Set to take effect on January 1, 2020, AB5 will make it illegal for contractors who reside in California to create more than 35 pieces of content in a year for a single company, unless the outlet hires them full time.

“By enforcing the 35-submission limit, Defendant, acting under color of state law, unconstitutionally deprives Plaintiffs’ members of their freedom of speech as protected by the First and Fourteenth Amendments to the U.S. Constitution,” states the lawsuit, which was filed by the Pacific Legal Foundation.

The bill’s pending implementation has wreaked havoc on publications that rely heavily on California freelancers. Just last week, Vox Media announced it not be renewing the contracts of around 200 California freelancers who write for the sports website SB Nation. Instead, Vox will replace many of those part-time employees with 20 part-time and full-time employees. Rev, which provides transcription services, and Scripted, which connects freelance copywriters with people who need their services, also notified their California contractors that they would no longer give them work. 

“Companies can simply blacklist California writers and work with writers in other states, and that’s exactly what’s happening,” Alisha Grauso, an entertainment journalist and the co-leader of California Freelance Writers United (CAFWU), tells Reason. “I don’t blame them.”  

Assemblywoman Lorena Gonzalez (D-San Diego), the architect of AB5, has heard these stories. “I’m sure some legit freelancers lost substantial income,” she tweeted in the wake of Vox’s announcement, “and I empathize with that especially this time of year. But Vox is a vulture.”

“These were never good jobs,” Gonzalez said earlier this month. “No one has ever suggested that, even freelancers.”

But many of the freelance journalists, writers, and content creators who now have to navigate the disastrous consequences of Gonzalez’s legislation beg to differ. 

“I’ve been able to earn nearly three times the amount I did working a day job, doing what I absolutely love, and having more to volunteer and spend time with loved ones,” wrote Jackie Lam, a financial journalist. Kelly Butler, a freelance copywriter, echoed those sentiments. “Thousands of CA female freelancer writers, single moms, minorities, stand to lose their livelihood due to this bill,” she said. “I was told by a client because I live in CA they can’t use me. I made $20K from them this year.”

Grauso says that CAFWU, the group fighting against AB5, is composed primarily of the people that Gonzalez claimed the bill would help. It is currently 72.3 percent women, which Grauso says is no coincidence.

“The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Grauso says. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.” 

The 35-piece per publication limit comes out to less than one piece per week. Anyone who writes a weekly column, for instance, is likely out of a job if their publisher cannot hire them as an employee. The bill also penalizes freelancers who create content in non-traditional formats such as blog posts, transcriptions, and listicles, the latter of which are often requested in bulk and take only “about 20 minutes to compile,” writes another freelancer. 

“[AB5] was drafted by a lawmaker who had the outdated mindset that most writers work within the old, traditional newspaper and print model,” explains Grauso. “But the vast majority of writers are in the digital media space, which operates completely differently.”

According to the Hollywood Reporter, Gonzalez initially set the annual limit at 26 pieces, but later changed it to 35 after a backlash. “Was it a little arbitrary? Yeah,” Gonzalez told the Reporter. “Writing bills with numbers like that are a little bit arbitrary.”

The assemblywoman recently tweeted that unemployment trending lower is “useless” because “people have to work 2-3 jobs or a side hustle” to make ends meet. “Now is the time to demand more,” she said.

According to the most recent Census data, only 8.3 percent of workers have more than one job; of that number, only 6.9 percent have more than two jobs. But Gonzalez doesn’t seem to care about the data, and has made it pretty clear that she does not want to listen to her constituents. 

“[Freelancers] shouldn’t fucking have to [work 2-3 jobs],” the assemblywoman, addressing a detractor, said in a Twitter exchange last week. “And until you or anyone else that wants to bitch about AB5 puts out cognizant policy proposals to curb this chaos, you can keep your criticism anonymous.”

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California Freelancers Sue To Stop Law That’s Destroying Their Jobs. Pol Says Those ‘Were Never Good Jobs’ Anyway.

A nonprofit legal foundation is suing the state of California on behalf of freelance workers who say California’s recently passed Assembly Bill 5 (AB5) will destroy their livelihoods. Set to take effect on January 1, 2020, AB5 will make it illegal for contractors who reside in California to create more than 35 pieces of content in a year for a single company, unless the outlet hires them full time.

“By enforcing the 35-submission limit, Defendant, acting under color of state law, unconstitutionally deprives Plaintiffs’ members of their freedom of speech as protected by the First and Fourteenth Amendments to the U.S. Constitution,” states the lawsuit, which was filed by the Pacific Legal Foundation.

The bill’s pending implementation has wreaked havoc on publications that rely heavily on California freelancers. Just last week, Vox Media announced it not be renewing the contracts of around 200 California freelancers who write for the sports website SB Nation. Instead, Vox will replace many of those part-time employees with 20 part-time and full-time employees. Rev, which provides transcription services, and Scripted, which connects freelance copywriters with people who need their services, also notified their California contractors that they would no longer give them work. 

“Companies can simply blacklist California writers and work with writers in other states, and that’s exactly what’s happening,” Alisha Grauso, an entertainment journalist and the co-leader of California Freelance Writers United (CAFWU), tells Reason. “I don’t blame them.”  

Assemblywoman Lorena Gonzalez (D-San Diego), the architect of AB5, has heard these stories. “I’m sure some legit freelancers lost substantial income,” she tweeted in the wake of Vox’s announcement, “and I empathize with that especially this time of year. But Vox is a vulture.”

“These were never good jobs,” Gonzalez said earlier this month. “No one has ever suggested that, even freelancers.”

But many of the freelance journalists, writers, and content creators who now have to navigate the disastrous consequences of Gonzalez’s legislation beg to differ. 

“I’ve been able to earn nearly three times the amount I did working a day job, doing what I absolutely love, and having more to volunteer and spend time with loved ones,” wrote Jackie Lam, a financial journalist. Kelly Butler, a freelance copywriter, echoed those sentiments. “Thousands of CA female freelancer writers, single moms, minorities, stand to lose their livelihood due to this bill,” she said. “I was told by a client because I live in CA they can’t use me. I made $20K from them this year.”

Grauso says that CAFWU, the group fighting against AB5, is composed primarily of the people that Gonzalez claimed the bill would help. It is currently 72.3 percent women, which Grauso says is no coincidence.

“The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Grauso says. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.” 

The 35-piece per publication limit comes out to less than one piece per week. Anyone who writes a weekly column, for instance, is likely out of a job if their publisher cannot hire them as an employee. The bill also penalizes freelancers who create content in non-traditional formats such as blog posts, transcriptions, and listicles, the latter of which are often requested in bulk and take only “about 20 minutes to compile,” writes another freelancer. 

“[AB5] was drafted by a lawmaker who had the outdated mindset that most writers work within the old, traditional newspaper and print model,” explains Grauso. “But the vast majority of writers are in the digital media space, which operates completely differently.”

According to the Hollywood Reporter, Gonzalez initially set the annual limit at 26 pieces, but later changed it to 35 after a backlash. “Was it a little arbitrary? Yeah,” Gonzalez told the Reporter. “Writing bills with numbers like that are a little bit arbitrary.”

The assemblywoman recently tweeted that unemployment trending lower is “useless” because “people have to work 2-3 jobs or a side hustle” to make ends meet. “Now is the time to demand more,” she said.

According to the most recent Census data, only 8.3 percent of workers have more than one job; of that number, only 6.9 percent have more than two jobs. But Gonzalez doesn’t seem to care about the data, and has made it pretty clear that she does not want to listen to her constituents. 

“[Freelancers] shouldn’t fucking have to [work 2-3 jobs],” the assemblywoman, addressing a detractor, said in a Twitter exchange last week. “And until you or anyone else that wants to bitch about AB5 puts out cognizant policy proposals to curb this chaos, you can keep your criticism anonymous.”

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Remy: The First Noel (Ballot Access Parody)

Remy is creeped out by restrictive ballot access measures. Also by Prince Andrew.

Written and performed by Remy.
Produced and edited by Austin Bragg.
Music tracks and mastering by Ben Karlstrom.

LYRICS:

The first Noel I heard early one day
As I tried to run as a new candidate
My cheeks were wetter than Prince Andrew’s shirt
When the man spoke to me and he told me these words:

No “L,” no “L”
No “L,” no “L”
No room for me on the ballot, oh well

I looked up a party wherein
I could join but was told “There’s no room at the inn”
No bed to lay and I heard “take a hike”
Like the time I bought my wife an exercise bike

No “L,” no “L”
No “L,” no “L”
No room for me in the parties, oh well

My wish this year is to feel content
At the ballot and not—to be frank—incensed
Must it be so hard to boot folks we don’t like
But they claim it is lawful and I think that’s right, but…

No “L,” no “L”
No “L,” no “L”
Seriously, how creepy is Prince Andrew?

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Published: The Unconstitutionality of Justice Black

My latest article was just published in the Texas Law Review, and it is called “The Unconstitutionality of Justice Black.” I originally gave it the accurate but completely uninteresting title “Ex Parte Levitt,” the name of the too-widely-forgotten case that inspired the article.

The article is about the constitutional controversy over the appointment of Justice Black. The day that Black was sworn in to the Supreme Court in 1937, an apparent crank tried to orally argue that Black was an unconstitutional usurper. The Court dismissed the case on procedural grounds.

But it turns out that the crank was correct, and might not really have been a crank. Justice Black was unconstitutionally appointed, and while the suit might have had some procedural problems, they weren’t exactly the problems that the Court thought they were.

The piece also discusses the aftermath of the litigation. As you may know, Justice Black sat on the bench for many decades. But during all that time, the Court never actually ruled on the lawfulness of Justice Black’s appointment. Instead, after a while everybody just took it for granted anyway.

As I’ve blogged before here, I’m generally a fan of Justice Black’s work, so I feel a little sheepish about publishing the piece. But I’ve become convinced that his appointment was unconstitutional. You can read the whole thing (only 30 pages) if you want to see why.

[Cross-posted from my new other blog—Summary, Judgment]

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Remy: The First Noel (Ballot Access Parody)

Remy is creeped out by restrictive ballot access measures. Also by Prince Andrew.

Written and performed by Remy.
Produced and edited by Austin Bragg.
Music tracks and mastering by Ben Karlstrom.

LYRICS:

The first Noel I heard early one day
As I tried to run as a new candidate
My cheeks were wetter than Prince Andrew’s shirt
When the man spoke to me and he told me these words:

No “L,” no “L”
No “L,” no “L”
No room for me on the ballot, oh well

I looked up a party wherein
I could join but was told “There’s no room at the inn”
No bed to lay and I heard “take a hike”
Like the time I bought my wife an exercise bike

No “L,” no “L”
No “L,” no “L”
No room for me in the parties, oh well

My wish this year is to feel content
At the ballot and not—to be frank—incensed
Must it be so hard to boot folks we don’t like
But they claim it is lawful and I think that’s right, but…

No “L,” no “L”
No “L,” no “L”
Seriously, how creepy is Prince Andrew?

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