NOTE: This post is coming out on Thursday in the hope of offering an extra day to act before a deadline next Tuesday. I do not plan to post tomorrow, Friday, February 9.
Homelessness and SB 5961:
Here’s another chance to usefully register your opinion from the comfort of your own desk.
All the local efforts to help our homeless fellow citizens are sorely needed and entirely laudable, but the “supply” of people rendered homeless, the other end of the equation, must also be addressed. Otherwise the number of people made homeless will continue to exceed the number who find housing. A key piece of the supply equation is the precipitous rise in rents as wealth chases ever greater profit.
There is a bill before the Washington State Legislature, Senate Bill (SB) 5961 that represents one good step toward stemming the flow. Here’s the summary:
Improving housing stability for tenants subject to the residential landlord-tenant act and the manufactured/mobile home landlord-tenant act by limiting rent and fee increases, requiring notice of rent and fee increases, limiting fees and deposits, establishing a landlord resource center and associated services, authorizing tenant lease termination, creating parity between lease types, and providing for attorney general enforcement.
SB 5961 made it out of the Housing Committee. If I understand correctly (and I think I do) SB 5961 was “read…into the record on the floor in house of origin [the State Senate]” ahead of the January 31st deadline. Now, to keep SB 5961 alive it must be voted on and passed by the Senate before 5PM next Tuesday, February 13th. It will still need to pass the House and be signed by the Governor to become law—but one hurdle at a time. This year is an even-numbered year “short session” of 60 days (compared to 105 day “regular session” of odd-numbered years) so the race to go from bill to law is much compressed. Once the end of this session comes around on March 7, (absent the calling of a “special session”) all bills go back to square one, that is, all bills would need to be re-introduced (with attendant new numbering) to be considered in 2025 by a newly elected legislature.
Here’s Where We Come In
Click here to see the main page for SB 5961. On that page there is a green colored link “Original Bill” that will take you to the actual 32 page text. On the right near the top of the main page is a horizontally elongate green button that says, “Send a comment on this bill to your legislators”. Click that link, fill in the form, click on the name of your senator, indicate your support, make a comment (no need to write a thesis) and click Send Comment. It’s that simple.
For those of us living in District 3 (very roughly corresponding with the City of Spokane, click here for a map) our Senator, Andy Billig, is also the State Senate Majority Leader. It is not hard to imagine that he holds some sway over which bills get a vote.
I thought that this from FUSE Washington (the folks who publish the Progressive Voters’ Guide) was clear:
People who rent their home or own a manufactured home cannot wait 15-20 years for new housing supply to lower rent costs. We need stabilization now while we build much-needed new housing.
Republicans will, of course, be adamantly opposed to this legislation. They will argue that it would interfere with the sacred “free market.” They will conjure a plethora of deleterious unintended consequences due to meddling with it. Currently, the imagined “free market” has failed at the task of providing housing.
The response to and readership of last week’s post “I Think I’m Becoming a Swiftie” was entertaining and broad. A friend, Dale Damron, remarked, “I tried seeing you as a shrieking front row adulatory fan with a faux leather “Fearless bracelet”…….I’ll try not to do that again.” The post also garnered one of the highest click rates on one link that I’ve yet seen. The link was to U.S. Representative Eric Swalwell’s (D-CA) video set to Taylor Swift’s “Only the Young.” I still find that YouTube video inspiring and for that reason I offer the link again in case you missed it.
Vote!
Every year for at least the last twenty years a February Special Election has been held in Spokane County. (Source: Spokane County Election archives) This year ballots are due in by next week, Tuesday, February 13th. These elections don’t get a whole lot of publicity for a simple reason: the February Special Elections are locally specific. They usually concern proposed bonds, levies, and local propositions relevant to local school districts, libraries, and municipalities. In any given February Special Election your particular address may not lie within any district for which there is an issue, and, consequently, no ballot will appear in your mailbox at all.
If your voting address lies within Spokane County, it is likely that you’ve already received a February 13th Special Election Ballot in the mail—as well as a copy of “Your Spokane County Official Voters’ Pamphlet.” Click here for an online version of the Pamphlet, here for more information, or here for access to what’s on your particular ballot at vote.wa.gov. I urge you to click that last link to vote.wa.gov, sign in (or register), and explore. It is an education in itself. Click around, look in the nooks and crannies. There is a lot of information there, including “Explanatory Statements” for each issue and “Arguments For and Against”.
Just as one example, if your voting address is within the city limits of the City of Spokane your ballot includes “Measure No. 2” offering an amendment to the city charter concerning redistricting. I was a bit leery of it at first, but under “Arguments For and Against” for Measure No. 2 one learns that the two City Council Members who were somewhat at odds over the recent city redistricting process, CM Zack Zappone and CM Michael Cathcart, jointly wrote the “Argument For”. In addition, “After repeated recruitment attempts, no volunteers against the ballot measure came forward to write a statement.” That was good enough for me. I voted “Yes.”
After all the attacks in recent years on school boards and libraries driven by über-conservative, pseudo-religious groups like “Mom’s For Liberty” I consider it my civic duty to cast a “yes” vote for pretty much any bond or levy proposal put before me. I know that is emotional and certainly not strictly rational, but I figure that I helped elect the people who serve on the boards that make these proposals, people serving on these boards without pay, usually as a civic duty. The least I can do is support what they propose.
I don’t personally spend much time in libraries. I have internet in my home. I have a computer. I usually buy, rather than borrow, books. But here’s the thing: I know there are a lot of people not as fortunate as I who rely on libraries for exactly those things. Moreover, libraries are increasingly seen and used as community spaces for people of all ages. Let’s support that. For more about libraries, levies, and bonds if you have a Spokesman subscription read Emry Dinman’s “Stakes are high for Spokane Public Library as it recovers from pandemic.”
This November a package of six initiatives will likely appear on the presidential general election ballot in Washington State. They are “Initiatives to the Legislature” that might best be characterized as the Republican Greed Initiative package. Four of the six of them would overturn or outlaw taxes. The whole package will appear on the ballot thanks to the money and efforts of one über-wealthy migrant to Washington State, Mr. Brian Heywood, and Jim Walsh, the current chairman of the Washington State Republican Party. Initiative Measure No. 2109, “Concerns Taxes.” It is the mostly likely of the six initiatives to offer Mr. Heywood a return on his investment. Here’s the text:
This measure would repeal an excise tax imposed on the sale or exchange of certain long-term capital assets by individuals who have annual capital gains of over $250,000.
Quite a lot of background is in order here. Before this capital gains excise tax was instituted in 2022 Washington State funded its schools and roads and everything else it does with the most regressive tax system of all the fifty states. Now it as moved up to the second most regressive. A regressive system of taxation is one in which the least well off pay proportionally more in overall taxes than do the wealthy.
A progressive income tax, for example, the federal income tax, in which higher levels of income are taxed at a higher rate, is the classical antithesis of a regressive tax. However, in Washington State an income tax was deemed unconstitutional in 1933 by the State Supreme Court (see P.S. below).
In a nod toward instituting a hint of progressive taxation, in 2021 the Washington State legislature passed, and the governor signed, a law imposing an excise tax (“a tax levied on certain goods and commodities produced or sold”) on “certain capital gains”. (Explore the raw details here in the Revised Code of Washington [RCW].)
The imposition of a new excise tax on “certain” capital gains might have escaped your notice, since it doesn’t kick in until the “certain” capital gains exceed $250,000 (in one year)—something over which very few of us need be concerned. Worried about tax on the capital gains from the sale of your home or your farm? They’re exempt—as are a host of other capital gains, like those from the sale of livestock, timber, or stocks in your Individual Retirement Account (IRA).
So what capital gains are taxed? We might characterize them as “abstract capital gains,” primarily capital gains made on the sale of stocks and bonds or other financial instruments, just exactly the sort of transactions that grow wealth for people who are already wealthy. One might point to Mr. Brian Heywood, a former (and perhaps current) hedge fund manager (see P.P.S. below for a basic biography) and the fellow fronting the money to pay signature gatherers to put the Greed Initiatives on the November ballot.
This excise tax was first imposed starting in tax year 2022 with the revenue first coming in with tax returns filed in 2023. Of course, Republicans representing the wealthy were not going to accept this without a fight. They immediately sought to characterize the excise tax as an income tax—and thereby have it declared unconstitutional. (Even U.S. Representative Dan Newhouse [R-central WA] weighed in as grievously opposed, strategically leaving out mention of the exclusions and exemptions, thereby allowing his entire audience to imagine that their own nest eggs might be threatened by the tax.)
Oh, and take note: The first $500,000,000 (that half a billion dollars!) is earmarked to support public schools with any excess dedicated to school construction. (Public schools are otherwise often funded primarily by local property taxes. Accordingly, public schools in areas with a lagging property tax base tend to be underfunded. The excise tax on capital gains is meant as a least a beginning of a correction.)
Republican whining that the excise tax on capital gains is unconstitutional based on the Washington State Constitution failed to impress the Washington State Supreme Court. In March of 2023 the Court struck down the challenge. Just last month (January 2024) the U.S. Supreme Court declined to reviewthe State Supreme Court ruling—and set the stage for the Republican Greed Initiative effort to deceive the voters into repealing the tax.
For tax year 2022, the first year of the capital gains excise tax, “[t]he DOR [Washington State Department of Revenue] estimates $889 million [more that twice early estimates] was collected out of a total of 3,765 returns, according to an agency spokesperson.” Do the math. At the tax rate of 7% that implies that the individuals behind these 3,765 tax filings in Washington State scored capital gains totaling an eye-popping 12.7 billion dollars (and that’s just the amount above the $250,000 exemption). (See P.P.P.S. below) For reference, that 12.7 billion dollars would be 18 percent of Washington State’s whole two year operating budget—or more than a third of the State’s annual operating budget. Even if these 3,765 tax returns represent 10,000 individuals, those individuals would represent less than 1/5 of one percent (0.14%) of the population of Washington State—a small fraction even of the fabled wealthiest “1 percent.”
Brian Heywood, apparently resenting that some of his annual capital gains might be used to educate the children of Washington State, didn’t wait for the judgement of the courts. He was busy in 2023 funding “Let’s Go Washington” with 6 million dollars to pay signature gathers. The money spurred ahead the suite of Greed Initiatives filed by Jim Walsh, the chairman of the Washington State Republican Party earlier in the year.
Mr. Walsh, the Republican Party, and Mr. Heywood are counting on at least forty years of disingenuous Republican anti-tax rhetoric to convince voters to turn out and vote against the interests of their own children. Judging by the crowd listening to Mr. Heywood in this video, you might wonder if he’s right. Don’t let it happen. Get people talking about the Washington State Republican Greed Initiatives coming on the November ballot and the strategy behind them with your friends, relatives, and acquaintances.
Keep to the high ground,
Jerry
P.S. We often hear that an income tax is unconstitutional in Washington State. That statement hinges on Washington State Constitutional Amendment 14, dating from 1930, which states: “All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax…” (from Article VII, Section 1—See pdf page 27 here). Three years later in the early years of the Great Depression, in 1933, 70% of Washington voters approved a state income tax—but a wobbly majority of the Washington State Supreme Court struck down the tax as unconstitutional, basing their decision on the word “uniform” in the 1930 Amendment 14. (See an entertaining version of that story here. For more technical detail, read here.)
Brian Heywood is a fifty-something year old man with means and motivation. He graduated from Harvard in East Asian Studies in 1991. Before “graduation he spent three years living in Japan as a [Mormon] missionary and as a student. He joined and later served on the board of JD Power and Associates,” a data analytics, software, and consumer intelligence company, with offices in California. In 2010 Mr. Heywood moved to Redmond, Washington, where he works as a hedge fund manager, now serving as the CEO of Taiyo Pacific Partners LP. His current level of involvement at Taiyo is unclear. His employment is variously self-described in Washington State Public Disclosure Commission reports as a horse boarder, artist, and as retired.
Speaking at a gathering at the Reset Church in Marysville in 2021 (why is it always a Fundamentalist, non-denominational church?) he said, “I came from ‘the people’s republic of California’. I am an economic refugee. I came here to make money and to be free.”
Clearly, Mr. Heywood knows his way around using money to make money. Now he wishes to use that money and his expertise to change the politics of the State of Washington to suit his own pecuniary and political interests. His donation to the Loren Culp campaign for governor of Washington in 2020 (see page 12 [at that link]) offers a window on his political leanings. In the Facebook video of his Reset Church talk in 2021 [the year before the excise tax on capital gains was first applied] he says, “I and some of my friends have begun to fund” various efforts, including the Washington chapter of the right wing news outlet, The Center Square. He “will be starting” Unleash.com. In his speech, Mr. Heywood likens building back the Republican Party in Washington State to the many years of planning and groundwork in re-building a corporation.
P.P.P.S Even if these folks behind these 3,765 capital gain excise tax returns had zero income in earned wages (on a Form W-2) I posit they were still be able to live very well on that 250K—even after paying around 30K in federal capital gains tax. (Note that the marginal federal tax rate of 15% on capital gains is, for no reason I can justify, universally less than the marginal tax rates for earned income reported on a W-2, which, at comparable levels of earned income, were 22% and in 2022 ramped up to a maximum marginal rate of 37%.)
I’m approaching three quarters of century. It is the music of the sixties, especially the of the folk era, that lives on in my head. A phrase like “Come gather ‘round people” triggers the outpouring of nearly all the lyrics of Dylan’s “The Times They Are a-Changin.’” The strains of “We Shall Overcome” evokes vivid memories of campfires and heartfelt singing. Tunes like these were the anthems of my youth.
Music—and the poetry it carries—is a powerful memory tool and motivational device. Music can bring on tears, waves of nostalgia, determination, and joy. Many a generation harkens back to the music of its youth and pays only marginal attention the music of later artists. Who are the artists worth listening to in the present day? I have nary a clue.
A few days ago, though, Robert Hubbell in his Today’s Edition Newsletter (a great daily read) wrote that several readers had recommended “this article by Brian Hassett, Why I Love Joe Biden – Brianland.” That blog post by Hassett (a quirky, musically-minded Canadian) is a delightful romp through all the very positive reasons to support Biden and his administration. About halfway through Hassett’s post is an embedded YouTube clip from Miss Americana, a 2020 documentary of which I was entirely unaware. In the clip Taylor Swift is making her case to her father and others, midway through the Trump presidency in 2018, for coming out in opposition to the Trump regime and the candidacy of the very Republican Marsha Blackburn (candidate for U.S. Senate from Tennessee, Swift’s home state). Swift was then 28 years old and certainly famous, but also fully aware of the career damage The Dixie Chicks had suffered after they ventured into politics more than a decade previously by criticizing George W. Bush. The YouTube clip riveted my attention, led me to watch Miss Americana on Netflix (the part with the embedded clip comes up at around 1:00). The clip and the documentary humanized this young singer/songwriter for me and led me to a full appreciation of Swift’s single “Only the Young,” a lament, a chronicle, and a call to action for its (mostly) youthful listeners—an anthem. You can listen on YouTube (with subtitles) here. Even better, in 2020 “Swift allowed the usage of the song for the Biden/Harris campaign free-of-cost, marking the first time Swift has lent her music to be used in a political advertisement.” U.S. Representative Eric Swalwell (D-CA) posted this illustrated video version of “Only the Young.” I urge you to click, watch, and listen. It gave me goosebumps.
As I was writing this the right wing bloggers and talking heads were losing their minds spinning whacko conspiracy theories over Swift, her NFL boyfriend, and the upcoming Super Bowl—and Swift has not even endorsed Biden for re-election. (Of course, given her involvement in 2020 it seems very likely she will.)
Watch the video that I linked above posted by Rep. Swalwell and you will appreciate why the right wing is so spun-up that some are calling for a “holy war” against Swift. If there is to be a “holy war” I know which side I’ll be on.
P.P.S. Wikipedia notes that Ms. Swift’s parents named her after singer/songwriter James Taylor, whose tunes and lyrics figure prominently in my 1960s musical memory.
P.P.S. Here are the lyrics to “Only the Young”:
It keeps me awake, the look on your face The moment you heard the news You’re screaming inside and frozen in time You did all that you could do The game was rigged, the ref got tricked The wrong ones think they’re right You were outnumbered this time
[Chorus] But only the young, only the young Only the young, only the young Can run Can run So run, and run, and run
So every day now You brace for the sound you’ve only heard on TV You go to class, scared Wondering where the best hiding spot would be And the big bad man and his big bad clan Their hands are stained with red Oh, how quickly they forget
They aren’t gonna help us Too busy helping themselves They aren’t gonna change this We gotta do it ourselves They think that it’s over But it’s just begun
[Chorus] Only one thing can save us Only the young (Only the young) Only the young (Only the young) Only the young (Only the young) Only the young Only the young (Only the young) Only the young (Only the young) Only the young (Only the young) Only the young Only the young (Only the young; Don’t say you’re too tired to fight) Only the young (Only the young; It’s just a matter of time) Only the young (Only the young; Up there’s the finish line) Only the young Can run
Don’t say you’re too tired to fight It’s just a matter of time (Can run) Up there’s the finish line (So run, and run, and run) Don’t say you’re too tired to fight It’s just a matter of time (So run) Up there’s the finish line (And run, and run, and run)
A fascinating and pertinent piece of Spokane’s and eastern Washington’s geological history
When this went out earlier this morning the link in the video failed. Here’s a workable link:
https://www.hamiltonstudio.com/firstfriday
No, we’re not talking about Noah’s Flood, although I suppose there are some who might wish to see this bit of fascinating geology through that lens. Instead, the topic here is forces of water that shaped much of the land we live on as well as the downstream “scablands” of central Washington. The story is pertinent because it is intimately interconnected with underground water resources upon which our region depends.
This Friday evening (February 2) at Hamilton Studios (see flyer and video below) Tim Connor, local journalist, photographer, and storyteller offers a multimedia presentation recounting this geologic history and the story of J. Harlen Bretz, the geologist who, working out of Spokane, put all the clues together in the early 1920s.
Since early last year Tim Connor has been using his understanding of local geology and his work in journalism to chronicle the evolving saga of PFAS (“forever chemical”) contamination of West Plains private wells. He writes on Substack under “Rhubarb Salon”. His work on the West Plains saga is available here. His posts are in depth and engaging, a fascinating, evolving story.
For more about this Friday’s presentation click here.
I urge you to click on this video image and watch (it literally just takes a minute)
WHEN February 2, 2024 6:00PM – 9:00PM
WHERE Hamilton Studio 1427 W Dean Ave, Spokane, WA 99201
The economic underpinnings of homelessness and the uncertainties of living in rental housing can seem distant. Having a place to live, to have shelter, is one of those essentials of existence that many of us only rarely consider. After all, many in my age cohort have a secure, low interest, 30-year mortgage contract that offers long term cost stability (and, by the way, an incentive to stay put). Some of us even own our dwelling free and clear. Many of us got to this point via a “starter home” in a time when places to live were far more affordable than they are today. Low interest, low downpayment, FHA (Federal Housing Administration) or VA (Veterans Administration) loans gave us a boost toward the lowest rung of the ladder of home ownership and equity building. Some (many?) of us benefited from parents who could offer some financial help or, ultimately, an inheritance that got us started.
Participating in the rental market is a different experience. I remember the subtle sense of insecurity my parents projected during my teen years when we lived in a rental apartment in a duplex owned by the grandfather of one of my high school classmates. Fortunately, we felt relatively sure that if the monthly rent were increased it would be gradual and incremental—livable—but the uncertainty was still felt. I never have, but I can imagine that living in a rental unit owned and managed by faceless companies bent solely on making a profit for their investors would feel even more uncertain.
Last Friday, January 26th, an article appeared in the Spokesman (from the Washington Post) titled, “Rent has never been less affordable, especially for the middle class.” The article presents statistics from a new report from the Harvard Joint Center for Housing Studies. The take-home is that more than half of American households who live in rentals now spend 30% or more of their income on housing costs. Spending more than 30% of household income on housing is the definition of housing “cost-burdened”. Even more remarkable, half of those households, i.e. 25% of all renting households, spend more than 50% of their income on housing costs. (= “severely cost-burdened”). This is a new high—and it goes hand-in-hand with rising numbers of evictions and rising levels of homelessness. (See P.S. for more data)
Those 30% and 50% statistics have two components: the rising levels of rents and the not-so-rising levels of income. The Spokesman article notes that rent growth for professionally managed apartments was 15.3% in early 2022. That rate of growth has now leveled off—but, like inflation in general, while the rate has stabilized, the high prices remain, so the rental housing affordability squeeze on incomes persists even as pandemic-related protections are being withdrawn.
How do we re-balance this? Builders and developers would, of course, like you to believe that we just need to build our way out of the problem, i.e. satisfy the demand side of the supply and demand equation—but it’s not that simple [the bold is mine]:
A big reason is that there just aren’t enough units available. There’s been progress, with tens of thousands of newly constructed homes expected to become available this year. But the Harvard study notes that the benefits won’t be felt equally – and that the fresh supply won’t tame housing costs for renters across the spectrum.
For starters, new construction often targets the higher end of the market, and those prices can stay high because there’s still plenty of demand among wealthier tenants. At the same time, there’s been a culling of lower-cost units as landlords chase higher rents or sell properties or as more affordable units fall into disrepair. In 2022, only 7.2 million units posted rents under $600 – a loss of 2.1 million units compared with a decade before, when adjusted for inflation.
“Supply is very important. I will certainty underline that,” Airgood-Obrycki [one of the authors of the Harvard Study] said. “But the people who are most cost-burdened are not going to see the immediate benefits of that supply.”
In the simplified and idealized free market economy prices go up until supply satisfies demand. If supply overshoots demand, then prices will fall. But that formulation fails when you’re not talking about some sort of uniform “widget”. The biggest profits in the building of dwellings come from satisfying high end demand, not from providing housing for folks living on the economic margins.
An extreme example of this phenomenon are wealthy individuals who buy, decorate, and maintain several homes in one area in what appears to be a hobby rather than profit-seeking in re-sale or rental. (Yes, there are or have been several anecdotal examples of such individuals in Spokane.) Rare as this behavior among the wealthy might be, it still serves as an illustration of demand soaking up supply—and thereby driving prices—on the high end. There is also the phenomenon of people of means continually seeking more square feet per person than most of humanity is perfectly happy to live in.
There are other forces at work that are harder to recognize and quantify. Consider, for example, the rise of internet-facilitated, profit-making short term rental platforms like Airbnb and VRBO over the last couple decades. The ripple effects both from the renters and the landlords of this new market are many and hard to quantify, but one effect must certainly be to remove a quantity of what would have been long term rental units from the market.
Governments at the municipal, county, state, and federal levels can all make adjustments to the economic and regulatory landscape attempting to help more people find housing they can afford. These include changes in zoning, permitting, regulation, and taxation that concern building and short-term rental requirements. Other changes open to government include legislation that would set limits on the allowed rate of rise of rental charges. Every one of these changes will be loudly contested by various interest groups. Folks embedded in the developer/real estate industry like Spokane County Commissioner Al French will, of course, will claim the only solution lies in cheapening the cost of building homes and apartments by nixing code requirements to fit new construction with climate-friendly features. (After all, if you deny the reality of human-caused global heating or imagine you can insulate yourself from its effects why would you argue otherwise, since nixing these features would increase builders profits?)
Many of the possible tweaks mentioned above are worthwhile, particularly in the relatively short run, but I submit that the main problem we face is that of overwhelmingly lopsided demand at the top end of the market driven by lopsided distribution of wealth in the economy. The best long term solutions to this problem start with fully funding the IRS so it is capable of enforcing existing tax regulation. Then reverse the tax cuts on high income levels that Republicans and their think-tank-mouthpieces have passed over the last four decades while pretending that the effects will “trickle down” to the rest of us.
Keep to the high ground,
Jerry
P.S. There are currently around 332 million people in the U.S. contained in 129 million households. About 44.8 million of those household, or 38% of those households, live in rental dwellings. (A side note: household is a group of people, not necessarily related occupying the same dwelling. A “family household” is a subset of households in which the householders are related.) If you are interested in delving into numbers and trends, check out this webpage from which I retrieved a lot of this data:
On Monday I posted PFAS, Forever Chemicals, and Our Water concerning the evolving story of “forever chemical” groundwater contamination on Spokane’s West Plains. Part of that story is Spokane County Commissioner French’s and Spokane International Airport CEO Larry Krauter’s quiet efforts 1) to push back against regulations surrounding PFAS, 2) to avoid revealing well test results, and 3) to block data gathering.
Later that day I read Doug Muder’s January 22nd post on the significance of long-running national Republican efforts to eviscerate the “administrative state” by challenging an arcane-sounding concept dubbed “Chevron Doctrine” in the U.S. Supreme Court case.
“Chevron Doctrine” seems arcane, far away, and of little personal concern, but comes into focus when applied to rules meant to protect our health from environmental contamination close to home. U.S. Representative Cathy McMorris Rodgers’ endless blather about “reining in regulation” and “unleashing the free market” came into stark focus with Muder’s words, “In a complex modern economy, there are countless ways for corporations to make money by killing people.”
Like me, many of my readers have lived most of our lives in a comfortable partial fiction: that, thanks to the ecology movement of the 1960s, the passage of the Clean Water Act and the Clean Air Act, and the establishment of the Environment Protection Agency, our government protects us from industry poisoning the air and water upon which our lives depend.
But let me turn you over the Doug Muder’s brilliant piece copied below. Keep the West Plains and PFAS in mind. (Muder’s The Weekly Sift should be on everyone’s Monday morning reading list.)
The Supreme Court’s attempt to scuttle the Chevron Doctrine is part of a much larger program.
Over the last few weeks, Court-watchers have been trying to sound the alarm about the prospect of scuttling what had (until recently) been a fairly arcane bit of legal interpretation: the Chevron Doctrine. Lawyers understand how important it is (the Court has applied it in over 100 cases in the last 40 years), but it’s tough to get the general public to pay attention, much less to be up in arms about its possible demise. But there actually are good reasons to be up in arms.
A fairly standard thing to do at this point would be to tell you what the Chevron Doctrine is and where it comes from. I’ll eventually get around to doing that — click the link if you really can’t wait — but I’d rather have you keep reading for a few more paragraphs before you bookmark this page with the idea of getting back to it when you have more time.
Blood money. So instead I’ll back up a few levels and start with the underlying problem: In a complex modern economy, there are countless ways for corporations to make money by killing people. They can kill their customers by selling products that will crash them into trucks or suck them out of airliners or cause heart attacks or give customers cancer or salmonella or some other disease. They can kill their employees with unsafe workplaces. They can kill their neighbors by pumping poisons into the air or water. As AI catches on, products may start killing people and we won’t even know why.
Sometimes corporations very consciously make the money-for-lives tradeoff, as the tobacco companies did for decades, and as the gun manufacturers are still doing. But sometimes they just don’t know, at least at first. They have a product, they make money off of it, customers seem happy with it, so why look any deeper than that? Diacetyl makes microwave popcorn taste more buttery — what’s not to like?
As individuals, we’re more or less helpless to protect ourselves. No one has the time or the expertise to analyze every single thing they use or come into contact with. That’s why we rely on government regulation, agencies like the FDA, EPA, FSIS, and others, to protect our lives. (Other agencies, like the SEC and the FDIC, protect our money from the kinds of scams that were endemic prior to the New Deal.)
Government regulators get their power from two sources: Congress and the President. Congress creates the agencies, defines their missions, and funds them each year. Meanwhile, the President appoints the people who set the policies to accomplish those missions. Ultimately, Congress and the President get their power from the voters.
But here’s the problem: The marketplace moves much faster than our political system. New products, new drugs, new food additives, new pollutants, and so forth appear every week. Imagine the dystopia we’d be living in if Congress, which strains to pass basic legislation to keep the government’s doors open, had to pass a new law to regulate each one.
Well, you may not have to imagine much longer, because the Supreme Court’s conservative majority seems hellbent on taking us there.
Delegated power. The way the regulatory system currently works is that Congress passes a few foundational laws that give the agencies abstract goals, and then lets the agencies hire experts who figure out how to pursue those goals.
A typical example is the Clean Air Act. The CAA was first passed in 1963 and then overhauled in 1970. It established air quality standards (NAAQS) for a few well-known pollutants like carbon monoxide, sulfur dioxide, and lead, but then it defined a general category of “hazardous air pollutants” (HAPs) made up of other gases and particulates that “threaten human health and welfare”. It tasked the EPA with making and maintaining a list of HAPs and creating emission regulations for controlling them.
Hold that in your mind for a minute: In passing the CAA, Congress banned or controlled substances that the members of Congress had never even heard of. That’s how the regulatory system works.
That’s a lot of delegated power, particularly power over corporations that don’t like being controlled. And yes, their wealth does give the companies opportunities to influence the system — say by bribing or otherwise inducing congresspeople to give them various exemptions, or by letting regulators know they can have cushy jobs after they leave government if they behave themselves — but it’s never enough.
What corporations would really like to do is monkey-wrench the regulatory system in general. And the best way to do that is to interrupt the flow of delegated power from Congress to the agencies: Make Congress pass a new law every time there’s some new thing to regulate. In a Congress where even saving lives can be a partisan issue, and where a bunch of small-state senators can lock things up with a filibuster, even the most obvious new regulations can be stalled indefinitely or watered down to nothing.
So the basic strategy for restoring corporations’ ability to profit by killing people has two pieces
Logjam Congress.
Prevent Congress from delegating its regulatory power to anybody else.
The most direct idea for keeping Congress from empowering regulatory agencies is known as the Nondelegation Principle: basically, that Congress can’t, as a matter of constitutional principle, delegate power that is inherently legislative. Some version of this idea is necessary, because otherwise Congress could authorize the president to be a dictator and then go home. But since 1928 delegation has been considered OK if Congress provided an “intelligible principle” for the agency to follow (like protecting human health and welfare from air pollutants).
But in a dissent in the Gundy case in 2019, Justice Gorsuch proposed a much stricter limit: Agencies can only “fill in the details” of laws, and can’t do something sweeping like, say, compile a list of dangerous pollutants to regulate. Fortunately, he didn’t get the majority to go along with him on that. But he’s still working on it, and the composition of the Court has changed since then. Expect to hear more about nondelegation sometime soon.
A second idea for reining in regulatory agencies is the Major Questions Doctrine, which the Court has created out of whole cloth over the last 25 years. Major Questions is a response to something that happens fairly often: Circumstances change in such a way that a provision in a law that seemed relatively minor at the time it was passed ends up granting an agency significant power. Major Questions allows the Court to say, “No, no, no. The law may say that, but Congress didn’t really mean it. If they’d intended to delegate such a large power, they’d have said so explicitly.”
So, for example, the Obama administration EPA decided that (due to the previously unforeseen problems of climate change), the Clean Air Act gave it the power to regulate carbon dioxide emissions from power plants. The Court nixed that in West Virginia v EPA. Carbon emissions, it said, are so central to the workings of our economy that (regardless of the text of the CAA) Congress would never have delegated that power without an explicit statement.
Now, there are four major objections to the Major Questions Doctrine:
The Constitution never mentions it.
The Court has never clearly defined what a “major question” is, so it has given itself permission to interfere (or not) whenever it feels like it.
The law says what it says, even if Congress didn’t foresee all the possible applications.
If Congress really didn’t intend to delegate that much power, it could pass a law to take power back. (But of course, that puts the logjam-Congress shoe on the other foot.)
One recent use of Major Questions was to torpedo OSHA’s rules about large employers vaccinating their workers against Covid. Yes, OSHA’s mission is to protect workers from unsafe working conditions, and yes, working next to an unvaccinated person during an epidemic is unsafe, but … Congress couldn’t really have intended that, could it?
One thing you’ll notice about Major Questions: It allows the Court to substitute its own judgment for both the plain reading of the law and for an agency’s interpretation of that law. And that brings us (finally) to the Chevron Doctrine.
Chevron. Back in the Reagan administration, all the ideological arrows pointed in the other direction: Reagan’s appointees were conservative, while judges tended to be liberal. In particular, the EPA was run by Justice Gorsuch’s mom, Anne Gorsuch.
Anne’s EPA had drastically limited its interpretation of what a “source” of pollution meant under the CAA. Previously, just about any change that introduced new pollution was considered a new source, and required EPA approval. But the new interpretation said that, say, an entire factory or power plant was the source of pollution, and could be substantially reconstructed without triggering EPA supervision.
The Natural Resources Defense Council sued to try to block something Chevron was building, but the Court ruled in Chevron’s favor by creating the Chevron Doctrine: When some part of a law is ambiguous, a court should defer to the interpretation of a regulating agency rather than impose its own interpretation of what Congress really meant. An agency couldn’t make up a ridiculous interpretation, but as long as its reading was plausible, the courts should yield to it. (An eye-glazingly detailed history of the Chevron case is in this interview between David Roberts and Dvid Doniger.)
But remember: the ideological arrows were pointing in the opposite direction from today, so Chevron was a conservative principle that was championed by conservative justices like Anton Scalia. The arguments he made were the same ones liberals are making today: Agencies have technical expertise that courts can’t compete with, and (because they ultimately get their power from Congress and the President), they’re closer to the voters than judges are. So Chevron is not just prudent, it’s democratic.
This kind of humility is sometimes called judicial restraint. For many many years, it was the hallmark of conservative jurisprudence: Activist liberal judges should restrain themselves, because they’re not as smart as they think they are, and because it’s undemocratic to remove issues from the political process.
But now conservatives have control of the courts, so humility is out the window. Apparently, judicial restraint was never actually a conservative principle, it was just a rhetorical device to keep liberal judges in check. Activist conservative judges, on the other hand, should have free rein to do whatever they want.
So Chevron has to go. The Court is using two fairly obscure cases (involving fees paid by the fishing industry to the National Marine Fisheries Service) to tee up an attack on Chevron. No one knows exactly what the ruling will say yet, but the questions the justices were posing during oral arguments point at a complete revision of Chevron that could make the Supreme Court also the Supreme Regulator; whether any given agency was interpreting its authorizing legislation properly would be for the Court to determine.
The practical implications of sinking Chevron could be enormous: Literally thousands of cases have been decided on that basis in the last 40 years, and any of them could come up for a rehearing. Plus, literally every regulation on the books will become a legal battleground, with the Supreme Court’s six conservative justices being the ultimate deciders.
In short, a committee made up of six foxes is about to take over the regulation of every chicken coop in the country.
