GOP Hoists Self, Uses Own Petard

Well this is fun.

These days, when Congress is not immediately occupied with demolishing the Affordable Care Act, it’s been gleefully taking a sledge hammer to various regulations that were put out during the last six months of the Obama administration. In February, for example, Congress freed coal companies from the regulatory burden of having to find some place other than streams to dump their toxic mining waste. And as soon as the President signs legislation that was passed two days ago, shooting grizzly bears from airplanes will again be permissible.

The law that allows Congress to invalidate regulations is called the Congressional Review Act. It was passed 20 years ago (when Newt Gingrich roamed the Capitol – surprise!) and was used only one time before the current session of Congress. Only simple majority votes in the House and Senate and the signature of the president are needed to invalidate any regulation put into place after June 13, 2016. The law also provides that the executive branch agency that put the regulations forward in the first place may not impose “substantially similar regulations” without express Congressional approval.

Which brings us to another recent instance in which Congress voted to rescind an Obama policy, reported on first by Politico. This case involves a labor department regulation concerning the drug testing of people claiming unemployment insurance benefits.

Back in 2012, when the national unemployment rate was just beginning to recover from a recession-era high of 10.2 percent, Democrats and Republicans in Congress agreed on compromise legislation that extended unemployment insurance benefits but also allowed states to drug test claimants for UI who were applying for jobs in certain industries. (Because anybody who needed UI benefits at a time when job seekers vastly outnumbered job openings must of course be on drugs, and who even cares if drug testing in public benefits programs is a total waste of taxpayer money?)  The legislation directed the Department of Labor to put out regulations to implement the drug testing provision. Last August, the Department issued final regulations that allowed drug testing of UI claimants for jobs in commercial trucking, air traffic control and other similar jobs involving public safety.  The GOP, very disappointed that more jobs were not covered by the regulation, used the Congressional Review Act to pass legislation rescinding it. That bill is now headed to the president’s desk.

But here’s the rub: if the president signs the legislation, then the Trump administration’s Department of Labor cannot put out any new regulation that is “substantially similar” to the one that was rescinded.  And any regulation governing drug testing of UI claimants would be “substantially similar” by definition.

What to do? If the president signs the legislation, the GOP can try to pass new legislation expressly permitting the Department of Labor to revisit the issue. However, the Senate vote to rescind the Obama-era regulation passed only narrowly (51-48), which likely means the GOP would need to deal with the threat of a filibuster.  In the meantime, assuming the legislation becomes law, states with drug testing programs will be entirely without guidance about how to proceed without risking legal challenges. Governor Scott Walker, whose state has pioneered these drug testing programs, is probably not happy.

Wonder if Speaker Ryan know of the conundrum when he tweeted this?

 

 

Dietrich Bonhoeffer Subtweets PEOTUS

Jack Jenkins, religion reporter at Think Progress, recently asked his Twitter followers: “what theology are you reading right now to cope?” (Cope with the disturbing presidential election results, that is.)

Many of us are reading Dietrich Bonhoeffer (1906-1945), the German Lutheran pastor who devoted his career, and eventually gave his life, to opposing the Nazi regime and the complacent strain of Christianity that chose to accommodate it. The resistance movement that Bonhoeffer and others led is probably most famous for this warning against fascism’s insidious creep:

First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.”

Bonhoeffer’s writings always offer a bracing dose of courage. During these especially anxious days they also serve as quiet rebukes of the incoming Swaggerer-in-Chief. He was hanged by the Gestapo the year before the PEOTUS was born, yet Bonhoeffer offers antidotes to the odious bombast that surrounds us. In the vernacular of Twitter, in other words, he’s a divinely gifted subtweeter.

***

PEOTUS: Part of the beauty of me is that I’m very rich.

Bonhoeffer:  Earthly goods are given to be used, not to be collected.

***

PEOTUS: You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything.

Bonhoeffer: Strict exercise of self-control is an essential feature of the Christian’s life.

***

PEOTUS: The world was gloomy before I won – there was no hope. Now the market is up nearly 10 percent and Christmas spending is over a trillion dollars

Bonhoeffer:  It is very easy to overestimate the importance of our own achievements in comparison with what we owe others.

***

PEOTUS: Hillary Clinton is the vessel of a corrupt global establishment that’s raiding our country and surrendering the sovereignty of our nation.

Bonhoeffer: Nothing that we despise in other men is inherently absent from ourselves.

***

PEOTUS: Working together, we will begin the urgent task of rebuilding our nation and renewing the American dream. I’ve spent my entire life and business looking at the untapped potential in projects and in people all over the world. That is now what I want to do for our country.

Bonhoeffer: If you board the wrong train, it is no use running along the corridor in the other direction.

 

Getting the Marijuana Law Up and Running: It’s Not About the Money

On the first day that it’s legal to possess and grow marijuana in Massachusetts there are some happy faces outside the State House.

But inside the State House, seems it’s a different story.

For example, State Treasurer (and, notably, Question 4 opponent) Deborah Goldberg is troubled because, as she told Politico yesterday, the new law requires her to set up a Cannabis Control Commission to regulate the marijuana industry — and to do it quickly, but she has no idea where the start-up money is going to come from. Eventually, the costs will be paid for by marijuana sales tax revenues, but those are a year or more away. “Tough times moving forward,” she said.

(If you’re wondering why this funding issue wasn’t addressed in Question 4 itself, that’s because ballot questions are not allowed to include any appropriations of money.)

Goldberg is doubtful that that funds will be forthcoming from the state, citing the Governor’s recent mid-year budget cuts as evidence of our currently precarious fiscal situation. She’s also opposed to requesting that funds come from the state’s Rainy Day Fund (even though that’s where the start up costs –$15 million worth — to regulate the nascent gambling industry came from a few years back).

OK, let’s look elsewhere.  How about that $1 billion ( that’s billion with a “b”) economic development bill? Its passage last summer led to much enthusiastic gushing about the many ways it would connect residents to economic opportunities, develop the jobs of tomorrow, unlock economic development priorities, create opportunities for businesses in diverse industries, etc., etc. Surely a little of that money could get this newest industry up and running.  The funds could even be in the form of a loan to be paid back once the sales tax revenues start flowing.

It’s as though the opposition of some of our state leaders to legalizing marijuana in the first place may be giving way to a contrived fatalism that the problem of start-up costs makes implementing the law impossible at present. What happened to that can-do attitude we saw when $150 million appeared, rather magically, to seal the deal to bring General Electric to Boston?  (Oh, and by the way on that subject, the House today today advanced a bill to study the feasibility of a helipad near the new GE headquarters.)

There are lots of possible solutions to this relatively minor problem. Finding one just requires some political will.

The State Earned Income Tax Credit: R.I.P?

(How Trumpism might play out in Massachusetts. One of a probably lengthy series.) 

Governor Charlie Baker, back from a meeting of the Republican Governors Association, held a press conference yesterday to offer his first extended remarks after the presidential election.

If, like Attorney General Maura Healey, you were hoping for a forceful denunciation of the presence of a white nationalist in the West Wing, you were disappointed: Governor Baker is willing to hold the record open for more evidence against Steve Bannon before issuing a judgment.  On most other subjects Baker took refuge in the comforting words of Mike Pence (!), who called for a “very deliberate and significant dialogue,” yada-yada.

Baker’s strategy of not confronting the President-elect was, if not courageous, probably fiscally prudent. After all, more than one-quarter of revenue for the state’s annual budget ($39 billion this year) comes from federal reimbursements. Much of that federal funding supports our universal health care plan. That health care money was on a track to expire, but fortunately four days before the election, the Baker administration secured a commitment from the Obama administration to provide nearly $60 billion over the next five years. Good news for sure — although it’s alarming that the feds’ promise is now reliant on a president who in the past has considered defaulting on the nation’s debt as a nifty solution to budgetary problems.

Health care is not the only program under threat from Trump administration policies. Our state Earned Income Tax Credit Program, which helps more than 400,000 families in Massachusetts who earn $50,000 or less, is, as a practical matter, in jeopardy as well. Governor Baker is a big supporter of the state EITC, and an increase to that program (the first in 16 years) was one of his first year policy successes. The state EITC program is still a modest one even with the increase (the average benefit will rise to $500 per family this year), but it’s nevertheless a step toward reducing income inequality, a disorder that Massachusetts suffers from in the extreme.

The tax overhaul that Trump is proposing is especially generous to the wealthy and especially hard on lower-income families, including those who receive the Earned Income Tax Credit. His plan would entirely eliminate the head of household filing status and the deduction for dependents, both of which help to reduce the tax burden owed by EITC families.

The Trump tax proposals, to take just one example from the Tax Policy Institute, would increase the federal tax bill of a couple with four children making $50,000 a year from $210 to $1090. That result would swallow the benefit of the family’s state EITC several times over.We’re looking, in other words, at the prospect of a state EITC program that in many cases no longer helps low-income families directly but instead simply goes to help to pay their (newly-increased) share of federal taxes. How many things are wrong with that picture?

Following Up on Some Issues

(A few developments on three posts from earlier this year: Baker’s welfare policy, Mass Fiscal’s disclosure policy, the SJC’s ruling on mandatory minimum sentences.)

Back in June, Governor Baker sought unsuccessfully to reduce state welfare payments to families in which a disabled family member was receiving federal disability payments. Under Baker’s plan, as the Herald reported, the state would no longer pay $400 per month to a grandmother who’s caring full time for her 13-year-old granddaughter who cannot walk or talk because of the cerebral palsy that she has had since birth. The cutoff of state funds Baker proposed would have left the family of two to survive on the $750 per month in federal disability payments the granddaughter receives.  The Legislature told the Governor no.

In August, the Supreme Court of New Hampshire struck down a welfare eligibility restriction in that state very similar to the rule Governor Baker wanted Massachusetts to adopt. The federal disability payments, the court ruled, were intended as specific assistance to persons with disabilities and were not intended to be available for the family’s general living expenses. One hopes that if the Legislature’s rejection of Baker’s proposal does not deter him from introducing it again, the New Hampshire Supreme Court decision will.

***

In August, after the Legislature passed a law requiring organizations that use direct mail for their electioneering to disclose the names of their five largest donors, just as organizations that use paid television, internet and print advertising must do, the Massachusetts Fiscal Alliance, purveyor of preposterous allegations about the voting records of its opponents, was left with a choice — either divulge the names of its five biggest donors, or curtail its electioneering.  They recently announced that they would keep their donors’ names secret, which means that their direct mail efforts this election season will not be indulging in their usual farcical claims but will merely encourage recipients to visit their website.  In an effort to portray this decision as a victory, Mass. Fiscal commented that it never wanted to become dull:  “We are always looking at ways to improve our effectiveness in communicating with the voters.”

***

In April, the Supreme Judicial Court heard arguments in a District Attorney’s appeal of a case in which the trial judge declined to impose the statutory minimum mandatory prison sentence for drug distribution on a disabled black man who had been convicted of possessing an amount of drugs weighing less than a five-gram packet of sugar.

Earlier this month, the court issued an opinion reversing the trial judge and ordering that the minimum mandatory sentence (3 1/2 years instead of the 2 1/2 years the trial judge ordered)  be imposed. But in that decision, the Court also sent a message to the Legislature that arguments about the unconstitutionality of mandatory minimums, such as the strong evidence of their racially discriminatory application during the twenty years that they have been on the books, might be appropriate for the court to consider in future cases.

No on No on 3

Last week opponents of Question 3, which would bar the extreme confinement of farm animals and the sale of meat and eggs produced under those conditions, registered themselves as a ballot committee under the name “Citizens Against Food Tax Injustice.”

This is the same group that earlier this year challenged the Attorney General’s decision to allow Question 3 to appear on the November ballot. By way of a spokesperson whom they describe as an anti-poverty activist and a recipient of food stamps, they offer a populist take on the evils of Question 3; it’s “a food tax that seeks to steal affordable food choices that most of us make, causing undue harm to the hundreds of thousands of residents in the Commonwealth who already struggle to feed themselves and their families.”

I’ll let the proponents and opponents of Question 3 fight it out over the effect that Question 3 would actually have on egg prices – I’m more interested in the bona fides of the group’s professed anti-poverty motives.

Of the $75,100 in the ballot committee’s treasury, $75,000 of it comes from Forrest Lucas, the Chairman of Lucas Oil (as in Lucas Oil Stadium, where the Indianapolis Colts play) and the deep pocket for “Protect the Harvest,” a non-profit created to defend agribusiness against what it calls a “food elitist movement” advocating for regulations that will increase production costs. (Mr. Lucas is also rumored to be a front runner for the position of Secretary of the Interior in a Trump administration, which is seeking a cabinet that is more “business-friendly” than the current one.)

Other evidence tending to disprove the so-called egalitarian sympathies of Citizens Against Food Tax Injustice:

One of the lawyers in the legal challenge that the group brought against Question 3 is Jon Bruning, a former Nebraska Attorney General who generated some controversy in his unsuccessful campaign for a U.S. Senate seat from that state a few years ago by comparing welfare recipients to raccoons, thusly: raccoons are “not stupid, they’re gonna do the easy way if we make it easy for them. Just like welfare recipients all across America. If we don’t send them to work, they’re gonna take the easy route.”

The Northeast Agribusiness and Feed Alliance, another Question 3 opponent, made sure that its annual meeting in Albany this summer included a trip to the State Capital to register protests to proposals to increase that state’s minimum wage.

Question 3 opponent National Pork Producers Council lists among its recent victories a labor ruling that shortens the rest break time that employers must afford to the livestock truck drivers who work for them.

I think we get it. Citizens Against Food Tax Injustice wants consumers to be able to afford the food its business interests produce. Despite its choice of a spokesperson with a commendable background in fighting poverty, it’s no more of an “anti-poverty” concern than Walmart is.  No on no on 3.

 

 

 

Yankee Doodle Town

Big day in Billerica yesterday. Governor Baker dropped in for a ceremony designating it “Yankee Doodle Town.” (The backstory: in 1775 a young Billerica patriot seeking to join the Minutemen was captured by the British while he was trying to buy a rifle. After tarring and feathering him, the Redcoats mockingly called him “Yankee Doodle.” And then, as so often happens, cultural appropriation transformed a term of derision into one of honor.)

The Yankee Doodle Town law (Chapter 240 of the Acts of 2016) was only one of many designations among this year’s enactments. Other laws bestowed honorifics in memory of various beloved community members upon: a bridge, a courtroom, a basketball court and a traffic island. The third Monday in April is now to be celebrated as First Responder Day.  (In some years First Responder Day will fall during the second-to-the-last full week in that month, aka Licensed Practical Nurse Week.)

And designations like these are just one of the categories of laws the Legislature passes that apply to only one town, or to only one public space, or to only one job title or one person. We have lots of laws exempting a single position (like the deputy police chief in the town of Haverhill) from the Civil Service laws, or establishing a sick leave bank for one state employee, or granting an additional liquor license to one municipality.

It occurred to me recently to wonder whether one-shot laws like these are making up a greater share of the Legislature’s statutory output than used to be the case. It seems I was right: in the 1997-1998 session, about one law in ten fell into this category, but in the two most recent completed sessions, that ratio has increased to closer to one in three. During that time, the Legislature gave special designations to 67 public spaces, or days (or weeks, or months), established 200 sick leave banks for state employees, exempted 34 positions from Civil Service laws, and granted additional liquor licenses to municipalities on 104 occasions.

This development, while nowhere close to the most worrisome legislative trend on Beacon Hill (disclosure: I confess to tuning in to the as-yet uncompleted contest between “Roadrunner” and “Dream On” for the title of Official State Rock Song), may be a symptom of another, more ominous tendency among legislators to adopt leadership’s position on issues of real significance and then to content themselves instead with hyperlocal items lacking in wide application or great import.  If I were among the 50 or so legislators whose positions on gambling underwent 180’s after pro-casino Bob DeLeo succeeded anti-casino Sal DiMasi as Speaker of the House, for example, I might think it wiser to keep my head down on the big stuff and and deliver some constituent services instead, even if they are services of the merely symbolic kind.

After the 2015-2016 session ends, I’ll check the numbers again to see if this trend is continuing. In the meantime, don’t forget to commemorate Eddie Eagle Gun Safety week, which starts on Saturday.