Lobbyists parachute into Portland to protect federal tax break

Text of my letter published in the August 30 Tax Notes Federal, a policy journal that covers Congress. (I was a congressional correspondent and later news editor in the 1990s.)

Portland, Oregon, is a continent away from the backroom deals of Congress, but it’s the hometown of Senate Finance Committee Chair Ron Wyden. Obscure lobbying campaigns can connect two distant cities; to understand how and why Congress sustains special interests, one might connect the dots in between. Consider this example.

Section 1031 (actually its predecessor in intent) was added to the tax code in 1921 to allow deferral of tax on capital gains from “like kind” exchanges of investments until final disposition of the asset. Congress, regulators and the courts have narrowed and widened it into a tax dodge around which has grown a multi-billion-dollar industry of real estate executives and investors. It costs taxpayers about $8.5 billion annually, according to the Joint Committee on Taxation (JCX-23-20).

Uncredited image from Portland Business Journal

The August 5 print issue of Portland Business Journal includes a column by two real estate executives. The piece, “Danger lurks in Biden plan,” criticizes the Treasury “Green Book” proposal to limit the aggregate deferral of capital gains tax on 1031 transactions to $1 million annually for joint filers ($500,000 for singles). It would save about $1.9 billion in fiscal 2023, according to Treasury, whose 1031-related estimates tend to be lower than those of the JCT, which has not reviewed the Biden proposal.

The authors, Bill Brown and Dan Wagner, imply that 1031 helps Black Americans build wealth and invest in Black communities—a bonus point for pamphleteers in our time. The weekly tabloid illustrated the column with a half-page photo of a Black man in a hardhat, dress shirt and tie. “[T]he Black American community has increased its share of the commercial real estate investment market through the prudent use of 1031 like-kind exchanges, making a critical reinvestment in their communities while building personal wealth,” they assert without evidence.

This is a favored trope of lobbyists, who argue that Enterprise Zones, Opportunity Zones, the New Markets credit and even the carried interest loophole revive minority neighborhoods. Only by granting capital gains treatment to (mostly White) investors will Blacks get a taste of the good life.

The article continues, “A cap on 1031 exchanges right now—not just at $500,000 but at any amount—would severely restrict the ability and willingness to reinvest in commercial real estate and redevelop properties at a time in our nation’s economy when eager, courageous, and committed investors are needed more than ever.”

Trickle-down tax policy. More than three-quarters of capital gains benefits go to taxpayers with seven-figure incomes. The equities markets are awash in investors.

“Section 1031 has been used to provide affordable multifamily housing in working class communities, reimagine commercial shopping centers, and allow growing businesses to expand their space across Portland.” The authors note an industry-funded study by a Big Four accounting firm that highlighted the virtues of 1031. Ernst & Young estimated that repeal of 1031 would cost the economy $8.1 billion in output.

That’s about the same as the government’s deficit-financed tax expenditure and less than 0.04 percent of GDP. Perhaps the Treasury secretary would get a bigger bang for the buck by handing out Benjamins at the Boys and Girls Club? Consumer spending drives the economy, not investor tax savings.

“It is clear Section 1031 is important to our region’s economy and generates significant tax revenue—much of which would be lost with a cap or change to Section 1031.”

Pray tell: How does tax deferral generate tax revenue? It’s arguable that 1031 drains investment from non-tax-favored alternatives. Put another way, 1031 encourages tax-favored distortions that misallocate capital. If deals pencil out only because of tax breaks, then we should be skeptical of them. We needn’t see the dots, but let’s look anyway.

Dots 1A are the authors.

Dan Wagner is identified in the Business Journal as senior vice president of government relations for the Inland Real Estate Group of Companies. Based in suburban Chicago, Inland is engaged in finance, real estate and other businesses. In March it issued a press release announcing that it had joined the Real Estate Roundtable’s 1031 coalition.

William E. (Bill) Brown is identified as co-founder of Springhill Real Estate Partners and former president of the National Association of Realtors. He’s in suburban Oakland; Springhill’s website indicates Brown has personal investments in Portland properties.

So a couple of wheeler-dealers get ink to defend a tax loophole. It’s not shocking that a local business paper—Dot 2—would publish their “opinion” extolling the value of a federal (and state) tax break to the local economy. After all, the authors are potential or actual advertisers and the readers their potential or actual clients.

Wagner and Brown note their association with the Federation of Exchange Accommodators, a special breed of real estate executive—Dot 3A. FEA’s web address is the IRC section on which its prosperity rests: 1031.org. Naturally FEA has a PAC—Dot 4A. Wagner has contributed $8,500 to it in 2020-21, according to Federal Election Commission filings. (Brown’s name is not listed; his campaign contributions have gone to other entities.)

Dot 3B is the aforementioned Real Estate Roundtable, whose task is to generate congressional support for the industry, like an August 6 press release contending the importance of 1031 to small farms and businesses (another trope) and trumpeting a letter opposing the Biden proposal signed by 88 House Republicans. A few weeks before Inland announced it had joined RER, Wagner contributed to its PAC—Dot 4B—which is much bigger than FEA’s. Twelve other trade groups funded the Ernst & Young study (Dot 5A); tag them as Dots 3 and 4, C through N. One of them, Brown’s National Association of Realtors, dispensed $11 million to candidates in the 2019-2020 cycle.

FEA retains Williams & Jensen, a D.C. lobbying firm, to represent its interests—Dot 5B. FEA currently pays W&J $90,000 per quarter to monitor section 1031. In the fourth quarter of 2017, when Congress was writing what’s popularly known as the Trump tax law, FEA paid the firm $240,000 to defend 1031 (a provision from which Donald Trump personally benefits). In that law, Congress limited 1031 exchanges to real property, shaving the cost by $2.9 billion in 2023, according to JCT (JCS-1-18).

Among FEA’s PAC contributors are two Portland residents—Dots 1B. The Beutler Exchange Group LLC was passed by William Beutler, now retired, to his daughter Toija. They have contributed $17,500 to the PAC since 2017, including $10,000 this year.

A new recipient of the PAC is Ron Wyden—Dot 6A; he’s received $4,000 in 2021, since Democrats took Senate control. Wyden’s House counterpart, Richard Neal (D-MA)—Dot 6B—has received $30,000 since he became chair of the Ways and Means Committee in 2019.

On the top of Beutler’s web page is a banner: In a unanimous non-binding voice vote the Senate votes to preserve 1031! To view the vote, click here. The link is to the C-SPAN feed of the two minutes of consideration on August 10 of Senator John Kennedy’s amendment to the 2022 budget resolution—Dot 7. In it, Kennedy (R-LA) claims his amendment would “prohibit any changes to the treatment of like-kind exchanges.”

That’s a stretch. Students of the Senate budget reconciliation process and the exercise known as “vote-a-rama” (Kennedy’s amendment was the last taken up in 15 hours of “debate”) understand that these non-binding resolutions prohibit nothing and have the approximate effect of a press release. The fate of 1031 will be decided in Finance and in Ways and Means. (Kennedy is not on the Finance Committee.) Thus we understand why Wagner and Brown, perhaps consulting with Ms. Beutler, targeted a journal read by the Portland business community: to generate pressure on Chairman Wyden to ignore the proposal.

If we return to their column, we might imagine Messieurs Brown and Wagner’s hypothetical Black (and SEC-accredited) investor, a married couple. Flush with home equity, retirement savings and other assets, they seek a tax shelter. Finding an FEA practitioner, they put $300,000 into a real estate investment pool. Some years later the value has grown to $1.3 million; the couple enters a like-kind investment. Under the Biden proposal, they would still defer all tax. And using other provisions of the code, they could shield the gain from tax until death, leaving it to their children, who would receive stepped-up basis. No one ever pays tax on the gain.

Moving from the hypothetical to the real: Portland Business Journal reported August 19 that two downtown buildings are on the market, both associated with the families that sold the Portland-based McCormick & Schmick’s restaurant chain in 2012. The sellers’ agent, Justin Poor, told the paper, “The generational asset has not been on (the) market in nearly 50 years. Timing makes sense for both families to sell.” The report concluded, “Poor confirmed plans for what’s called a 1031 exchange, essentially a way for real estate investors to sell one building and then put the money into another, similar one while deferring capital gains taxes.”

How the proposed cap on tax-deferred sales would, as Brown and Wagner contend, “severely restrict the ability and willingness to reinvest in commercial real estate and redevelop properties” is unclear. Nor is it clear what makes real estate profits so special that they deserve a section like 1031.

But there you have it. A century ago Congress bought an economic sprinkler. It became a canal for federal largess thanks to a constellation of players: tax lawyers, their front groups on K Street, cheerleading local papers, our pay-to-play system of campaign finance, and cowed (or all-in) members of Congress.

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After watering our parched gardens, we offered an accounting

The “retirees” of TFO who agitate Oregon legislators for an equitable tax code

Dear Tax Fairness Oregon Supporters:

We have been remiss in our correspondence with you. As our steering committee spent the legislative session plowing through bills and testifying on 41 of them (some more than once), we didn’t set aside time to explain. Then when the five-month session ended in June, we tended to our parched gardens. At this late date, we report back to you.

Our legislators sent wrap-ups touting their many successes among their various priorities. We considered 2021 a wasted opportunity to address gaping inequities in Oregon’s tax code. With the federal government shipping hundreds of billions in cash across the country, our reps had no appetite to limit tax giveaways to the wealthy, especially because they know that because of the two-thirds quorum rule, the GOP minority can walk at any time (and they did, repeatedly). The intransigence of the minority and their allies in the business lobby was on display in the revenue committees, where the alleged representatives of corner stores mounted letter-writing campaigns on behalf of their true paymasters. On the other hand, we were able to defeat most bills that would have shoveled millions more in state revenue to the richest Oregonians. Here are some highlights.

Pass-through tax regime – A PARTIAL WIN

Since 2013, most Oregon pass-through business owners (sole proprietors, partnerships, LLCs, S corporations) have paid tax rates about 2 percentage points lower than wage earners. These business owners pay taxes only at the individual, not corporate, level; their profits “pass through.” We presented an analysis demonstrating that the 2% differential (which costs $100 million a year) was too little to change any business owner’s behavior, much less hire one additional employee, and urged repeal of the whole regime.

Senate Finance Committee Chair Ginny Burdick, who announced her plan to resign after the session, worked with Republican-turned-independent Brian Boquist on a compromise that eliminated benefits for pass-throughs with income of more than $5 million but lowered rates for taxpayers below that threshold. (Many Democrats still buy the Reagan myth that lower taxes create jobs.) We supported passage of SB 139 (which saves about $30 million a year) as a step in the right direction. Once wealthy owners no longer benefit, the business lobby’s defense of it may diminish – those groups don’t actually represent the small businesses they claim to. Boquist told his colleagues that any small business they might cite would benefit from the bill, yet most Republicans still voted against it in the wake of opposition from NFIB and Oregon Business and Industry (the state’s biggest business lobby). A similar dynamic characterized House passage.

SALT deduction – A LOSS

After Congress limited the state and local tax deduction to $10,000 in 2018, states began trying work-arounds. The Trump administration’s Treasury Department gave the thumbs-up to a New Jersey law that created an alternate regime for pass-throughs, effectively allowing their owners (but no one else) to use an unlimited deduction of state taxes on their business income. When Chair Burdick brought a copycat provision to committee, we testified that it could be manipulated by sophisticated taxpayers in a way that would cost Oregon revenue. (The provision was designed to be revenue-neutral for the state while giving its beneficiaries federal deductions.) The Finance Committee revised the bill to close a loophole that had concerned us – leading a tax accountant for corporations to complain about the revision and demonstrating that we had succeeded in limiting the damage. We felt hamstrung in lobbying against the bill because it was packaged with the pass-through reform, so we did little more than testify against it. After the bill passed the Senate, we testified in the House that it was a textbook example of how the legislature uses tax law to enrich the already wealthy, though in this case we were giving them a federal tax break, not a state one. House Revenue Chair Nancy Nathanson, often an ally, championed the bill on the last day of the session, and only seven members (including Speaker Tina Kotek) voted against it.

PPP/CARES Act benefits – A LOSS

In spring 2020, we alerted the legislature to a potential state revenue loss from the Covid-inspired federal CARES Act, which allowed certain taxpayers to carry back losses supposedly resulting from the COVID recession to offset tax liabilities from as long ago as 2013. Nathanson enlisted us in the effort to move a bill disconnecting Oregon from the federal provisions, as seven other states eventually did. By fall, both Speaker Kotek and Senate President Peter Courtney had endorsed the proposal, and Governor Brown put it in her budget in January. But the tax committees never moved a bill to disconnect.

Separately, Congress, led by our own Senator Wyden, passed a provision in the December budget that similarly opened Oregon to hundreds of millions in potential revenue losses. The provision allows businesses that received PPP loans that were later forgiven from repayment to exclude those amounts from income (forgiven loans generally are taxable income) – and to deduct expenses to which they applied the proceeds. We immediately alerted tax leaders of the revenue implications of this “double-dip” and that it benefited primarily wealthy businesses untouched by the Covid downturn. It might be fine for the federal government to give away that tax revenue, it can print money; but for Oregon the provision represents a huge liability. We lobbied and testified on a bill to require taxpayers to include the forgiven loans as income for state purposes, but the tax committees did not move it.

Timber Taxes – A LOSS

The June 2020 investigative reporting on big timber’s success in avoiding state taxes inspired us to research and build a network on timber issues. Some hate that a major industry pays little tax; some are angered by industry disregard for watersheds and drinking water; others are outraged that the tax-supported Oregon Forest Research Institute has become an industry organ. OFRI claims that the state’s forest practices are great, though the federal government has withheld millions in funding because our laws don’t meet federal standards.

To build on the momentum, TFO sponsored eight Zoom workshops, specific to areas across the state. We talked with county commissioners and legislators and worked to shape a bill. We testified at several hearings and lobbied bill sponsors – all to little avail. No new timber tax, and a bill to reform OFRI died in the Senate. Instead, the legislature shifted funding timber-related expenditures (firefighting, the Department of Forestry and OSU research) from a harvest tax to the general fund. Some legislators – and Governor Brown – insist a bill will be back in 2022.

Mortgage Interest Deduction – A LOSS

For years Rep. Alissa Keny-Guyer pushed the legislature to deny the MID to high-income homeowners for second homes and use the saved revenue for housing. Owners of second homes enjoy the MID while workers in vacation areas can’t afford rent. Keny-Guyer retired last year, and her successor, Khahn Pham, took up the cause. House Revenue held a hearing that drew a coalition of tax reform, housing and local-government witnesses, all testifying to Oregon’s housing shortage and the gross inequity of giving a tax break for debt on second homes. (Two of our steering members live in Bend and Florence, where many of their neighbors’ homes stand vacant much of the year.) This is a multi-year effort, and we are working with our allies to push it to the top of the agenda.

Taxation of federal stimulus checks – A WIN

We felt lonely – and proud – to be the only witness testifying against a bill that would have exempted the Covid checks many households received from Oregon income tax (our testimony got us coverage on TV news). It sounds unfair: The government is giving us this money because of an economic crisis; we shouldn’t be taxed on it! But that’s counter to equitable principles: add up your income and pay the appropriate rate on that amount. Millions of upper-middle-class people unaffected by the Covid recession got checks. The government taxes unemployment payments, but proponents argued they shouldn’t be taxed on payments for doing nothing? Besides, the Department of Revenue said it would be impractical to provide refunds of tax due (it could provide credits on taxpayers’ 2022 liabilities). The bill died.

Landlord tax credit – A WIN

Senator Betsy Johnson, co-chair of the powerful Ways and Means Committee, drew wide support for a bill that would create a tax credit for landlords who couldn’t collect rent from Covid-affected tenants. Rare is the senator who wants to cross the colleague whose committee controls most spending. We testified twice, pointing out that the legislature in December created a payment program for those same landlords. Johnson argued that the program provided only partial reimbursement for lost rent; we pointed out that asking a second state agency to administer another new program was inefficient and that the tax credit, payable over five years, wouldn’t make landlords whole either. The bill passed out of the Housing Committee and quietly died in Finance. We gave it a lovely memorial service.

Tax Credits – LOSSES

Much of our energy was devoted to advocating the natural death of slews of tax credits, pet provisions that legislators suppose will advance some favored economic activity. We think they are mostly tax giveaways that have no effect on behavior. There’s a tax credit for Hollywood film production, popular in many states. Oregon allows taxpayers to redirect their payments to favored charities, a shift that allows individuals to determine how the state spends revenue. A few of these expenditures died for lack of interest, but the trend is in the wrong direction, partly because the revenue committees like to spend money as much as legislators on other committees.

Attacks on the Commercial Activities Tax – MIXED

The CAT was intended to fund K-12. Only two years old, it is subject to repeated, far-ranging efforts to exempt this or that activity or industry. We helped fight off these exemptions, though one we supported also died: exempting pharmaceuticals because of the way prescription drugs are priced by their many intermediaries. We agreed that independent pharmacies in rural areas may be threatened by the CAT because of their narrow margins.

Beer and Wine – A LOSS

No progress on Oregon’s tiny taxes, among the lowest in the country. It’s easier to kill bills than pass them. Measures elsewhere gave more money for treatment (though Oregon has way fewer treatment options than most states). But with the beer tax at 1 cent a bottle, any meaningful increase will be characterized as exorbitant.

Our critical role

Some of our issues draw wide attention, but often we are the sole witnesses providing public testimony on the other side of a bill. In a recent exchange, the head of the nonpartisan technical tax staff wrote us about our testimony on the SALT deduction bill. “I don’t know that it’s obvious from outside the building, but public feedback on proposed policies is extremely helpful. I always encourage as much public testimony as possible. Thanks for contributing.”

Thank you, supporters.

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Penance for a former influence peddler

A committee listens to my testimony in the Age of Covid

The national news is depressing, with one party—and its Supreme Court majority—determined to prevent voters it doesn’t like (and doesn’t want) from participating in democracy. So I bang my head against the wall (on Zoom) in Salem, my state capital, on details: pleading with legislators to stop doing stupid things to the tax code. I suppose it’s penance for that part of my career I spent advocating the movement of a comma from here to there on behalf of the rich and well born.

This week, in the Senate’s housing committee, members and witnesses were enthusiastic about a tax credit for landlords who are getting stiffed by unemployed tenants. In December the legislature created a grant program for those same landlords; a state agency is about to start taking applications. Instead of working to perfect the acknowledged flaws in the program’s design, senators seem bent on adding the tax credit, though they have no idea how much it will cost. I was the only witness to object, telling senators that the tax credit was of dubious value to landlords, would take more time and oversight for a second agency to administer it, and would turn the tax code—the purpose of which is to raise money—into Swiss cheese. But the fix is in. Senators will issue press releases—and then they’ll wonder why their constituents are frustrated with government’s inability to provide actual help.

Meanwhile, Congress extends tax breaks to the favored few, engineered when Mitch McConnell was majority leader. Since last spring, I’ve been in the chorus arguing that three provisions in the CARES Act Congress passed nearly a year ago will go to millionaires. The solution, at least for Oregon’s fiscal prudence, is to disconnect the state tax code from the three provisions, as several other states have done. In Salem, I face off (virtually) against propagandists from the business lobby, folks who either know they are lying or are accustomed to part-time legislators who have little imagination in the face of sound bites.

In testimony last week, I challenged the business lobby to produce a single witness to explain how the CARES Act provisions would help him or her. Instead, the lobbyists recruited a gym franchisee to submit an op-ed to The Oregonian repeating their talking points. Sick of the slick, I fired off a counterpoint to the newspaper.

All I can do is scream, politely, in Zoom and in print. Text of the op-ed follows.

https://www.oregonlive.com/opinion/2021/03/opinion-legislature-should-kill-cares-act-tax-breaks.html

A recent guest column in The Oregonian defended three tax breaks Congress included in the CARES Act as help for businesses that have suffered losses in the COVID contraction (“Don’t cut CARES Act lifeline to businesses,” Feb. 24). The column, by a Lake Oswego gym owner, was prompted by coverage of bills in the Legislature—and Gov. Kate Brown’s proposal—to sever Oregon’s automatic connection to these tax breaks.

I am sympathetic to small businesses and everyone else whose livelihoods have been hammered in the past year. But proponents of these provisions—which applied to tax years 2018, 2019 and 2020—have presented no evidence that anyone so hammered will appreciably benefit from them. The Joint Committee on Taxation, the nonpartisan economists who evaluate tax legislation for Congress, found that the benefits overwhelmingly go to millionaires.

In Oregon, Friends of Family Farmers and the Main Street Alliance, an organization of small businesses, have testified in the Legislature that these benefits don’t help their members. So have I.

As a former tax policy analyst in D.C., I have been waiting six months for the business lobby to present a single witness who can illustrate how these breaks will benefit small businesses like gyms, restaurants, dry cleaners or retailers. (The gym owner admits in his op-ed he doesn’t know whether he could benefit). I’m still waiting.

Tax policy is terribly complicated and not generally intuitive. But it has one simple aspect: tax cuts apply only to those who owe taxes. If a small business lost money in the COVID crunch, it won’t owe any tax. And it’s unlikely to benefit from these tax breaks.

Why did Congress include these particular tax breaks in the CARES Act? Because lobbyists have been trying to undo these modest limits that were imposed on the huge tax cuts they won in 2017. What businesses employ them? Those that pay lots of tax. They also pay front groups to tell tales.

The CARES Act beneficiaries are large businesses that were profitable three or five or seven years ago and can get refunds because they had no tax liability in 2020. The act also allows them to use long-ago profits to offset losses in 2018 or 2019—which had nothing to do with COVID. The most expensive of the three provisions being scrutinized by Oregon only benefits business owners who make at least a half-million dollars. It allows them to use business losses to offset income from wages or the stock market and potentially end up with no tax liability.

About 20 states are similarly tied to federal tax law the way Oregon is. Six—Colorado, Georgia, Hawaii, New York, North Carolina and Virginia—have disconnected because they understand that these provisions drain their revenue when the states face massive needs prompted by COVID.  And because they recognize that these tax breaks don’t help anyone who needs it.

Oregon should become the seventh.

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Advice to a (small ‘d’) democrat

A friend asks for facts about Joe Biden, without mentioning Donald Trump, to help her decide. Not comprehensive, but this is what I wrote her after spending 15 minutes on the question (and a few more refining for this post):

An election is a binary choice. This year’s is between an incumbent with a four-year record and a challenger whose public service stretches over decades. Biden’s record includes serving in the constitutionally useless job of vice president, in which at the president’s direction he was a minister without portfolio. Among his tasks: coordinating the 2009 expenditure of nearly $800 billion in stimulus spending approved by Congress (far less than needed) and the government’s response that year to the H1N1 virus, which originated here, posed a worldwide threat and ended up killing about 14,000 in the U.S. over two years. Having served in the White House for eight years, he has an intimate understanding of the operations of the executive branch.

Biden’s experience as a legislator is less relevant, because those skills are different. But he negotiated a lot of policies with his former Senate colleagues, including the outlines of Obamacare and a big tax bill in 2012. I didn’t like the outcomes of these negotiations, because my side lost too much. But of course negotiations involve compromise, and the deals achieved were better than no deal – or so both sides thought. Biden’s experience in the Senate is relevant to governing, because Congress writes most of our policies.

I’m not a huge Biden fan, because he’s too moderate for my taste. That is, his policy prescriptions don’t go far enough. But having policy prescriptions is not the same as achieving them. I think he can get some of them done, especially those under the control of the executive branch.

And the policies that have been promulgated by this executive over the last four years are a disaster for life as we know it on the planet, to our aspirational values, to the maintenance and strengthening of the functions of government which we have collectively asked of it over the past 160 years. The government’s scientific expertise has been systematically dismantled, everything from agriculture to atmosphere. The EPA has been turned into an instrument for polluters through the promulgation of regulations that harm our air, water and earth. The CDC has been transformed from the most respected disease-fighting institution in the world into a propaganda arm of the White House. These developments have occurred because the president has appointed political hacks in every agency in order to, as Steve Bannon put it, “deconstruct the administrative state.” For what purpose? To increase corporate profits.

In my particular area of expertise, tax policy, which I have been studying since 1981, the 2017 tax bill is the sloppiest law I’ve ever seen, so slapdash that my former colleagues in a “big four” accounting firm have spent years trying to understand and convey its meaning to clients. The IRS just issued regulations on one section of that law (I’m lobbying the Oregon legislature on it now), trying to make sense of the mishmash Congress created. On the whole, however, I would testify that the result of the law was to shift the tax burden from the richest Americans to the middle class. My own federal taxes went up $1400 in 2018, compared to what they would have been without the law. I don’t mind paying more taxes to enhance the quality of life in America. I resent it when my increased burden is used to reduce taxes on the wealthiest 1 or one-half percent, which that law demonstrably did.

Trump’s withdrawal from international treaties, including the Paris climate agreement and the Iran nuclear deal, as well as from the World Health Organization and other bodies, has made the world more dangerous.

Our border policy is an affront to our values.

You asked for facts about Biden. My assessment is that Biden would do what he can, with or without the support of Congress, to reverse as many of these policies as possible. I doubt he can reverse all of them. The institutional hollowing over the last four years cannot be rebuilt in a year or 10. For example, the Agricultural Research Service scientists who quit when the secretary moved the headquarters from D.C. to Kansas City will not return. (The purpose of the move was to silence publication of the evidence of climate change effects on crop yields.) But a new generation may be recruited that is interested in bettering our lives. That will take many years. The same is likely true of many other agencies.

By far the most important issue of this election is whether we will elect a party that is dedicated to denying the right to vote to Americans it judges oppose its priorities. Two decades ago, I watched as henchmen in the employ of the George W. Bush campaign stopped the vote recount in Miami-Dade. It was called the “blue blazer riot.” It became a template for the war on voting that we now see across the country, instigated at every level of the Republican Party:

  • The Florida legislature’s successful effort to eviscerate Amendment 4, passed by two-thirds of voters to restore voting rights to ex-felons
  • The census citizenship question, designed to suppress the count and thus diminish fair representation in the House of Representatives
  • The destruction of the Post Office, for a trifecta of purposes: privatize it, delay mail-in balloting, and wreck a daily link between citizens and their government
  • The Supreme Court’s effective repeal of the Voting Rights Act, a decision under which GOP-controlled state governments have purged voting rolls, reduced the number of places citizens can vote and even drop off absentee ballots, and created additional obstacles to the franchise
  • The party’s recruitment this year of lawyers and other volunteers to, respectively, contest votes and challenge individual voters at polling places, the intent of which is to create chaos, delay the count and flip the outcome to the Supreme Court

These are elements of a campaign to destroy fair representation of us, whatever we choose. It is the disease of our time, though it dates to the antebellum defense of slavery: you don’t matter. My vote this year, in part, is a vote for: you do matter; you get to have a voice in government, even if I disagree with you. That alone is why I’m voting for Biden.

Oh. And because he wears a mask in the middle of a pandemic.

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The lies our textbooks told us

Screen Shot 2020-08-12 at 10.27.20 AMA link to The Washington Post version of my post on the Virginia government’s effort to rewrite history. https://www.washingtonpost.com/outlook/slavery-history-virginia-textbook/2020/07/31/d8571eda-d1f0-11ea-8c55-61e7fa5e82ab_story.html. Published in the Sunday opinion section on August 2, it drew more than 1900 comments. My sampling suggests people were inspired to write: “This was my experience.”

 

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Exhuming history, exposing lies

As I watched Richmond city workers, surrounded by cheering protestors, remove a hundred-year-old towering bronze of Stonewall Jackson on horseback from its base on Monument Avenue, tears streamed down my face. On the 157th anniversary of the Battle of Gettysburg, I thought of my Virginia history textbook that described slaves as contented servants.

Screen Shot 2020-07-02 at 5.41.28 AM

Virginia: History, Government, Geography (1956), Charles Scribner’s Sons, the seventh-grade text

Virginia History was disseminated in 1957, and Mrs. Stall issued it to me in fourth grade, 10 years later. I’ve been studying Virginia history ever since, fortunately in a scholarly atmosphere that developed alongside the Civil Rights movement. We have been intermittently dismantling the Lost Cause myth all my six decades; the pace is accelerating in this George Floyd moment. Some friends object to the removal of monuments, confusing them with “history.” This Fourth of July, I describe some of that history, beginning with textbooks.

In 2009 Adam Wesley Dean, then a doctoral candidate at my alma mater, the University of Virginia, and now a professor at the University of Lynchburg, published “Who Controls the Past Controls the Future: The Virginia History Textbook Controversy,” in The Virginia Magazine of History and Biography (Volume 117 No. 4). His title is borrowed from Orwell, and his essay reviews the state’s propagation of a lie.

For the middle third of the 20th century, Virginia’s leaders were of the political machine of Harry Flood Byrd Sr., governor 1926-1930 and senator 1933-1965. The Byrd machine was alarmed by President Truman’s 1948 integration of the armed forces. In 1950 the Virginia History and Government Textbook Commission took control of the curriculum from local school boards, choosing the writers and supervising the final drafts sent to publisher Charles Scribner’s Sons. In exchange, Scribner sold the books to every public school in the state for three grades: fourth, seventh and 11th. Students were taught essentially the same mythical narrative.

The commission’s lead historian for the seventh-grade edition was Francis B. Simkins, a professor at Longwood College in Farmville. In his 1947 book, The South Old and New, Simkins wrote that slavery was “an educational process which transformed the black man from a primitive to a civilized person endowed with conceits, customs, industrial skills, Christian beliefs, and ideals, of the Anglo-Saxon of North America.” During the Civil War, the slaves “remained so loyal to their masters [and] supported the war unanimously.” During Reconstruction, “blacks were aroused to political consciousness not of their own accord but by outside forces.”

Spotswood Hunnicutt, one of Simkins’s co-authors, believed that as a result of post-bellum interpretations, students were “confused” that “slavery caused a war in 1861.” The commission, she said, was “looking after the best interest of the students.” The “primary function of history,” she concluded, was “to build patriotism.”

In Adam Dean’s summary, my book (I remember its illustrations) gave this lesson on slavery and the war:

“[T]he Northern people did not need much help to work their small farms. The planters in Virginia and in the South needed many men to work them. They had slaves to do their work.” In terms of secession, Virginia’s History alleged that “the people of all the states had certain rights under the United States Constitution, but the people in the South believed that their rights were being taken away from them [and they decided] to leave the United States and start a new nation.” . . . “General Lee was a handsome man,” who “sat straight and firm in his saddle. Traveller stepped proudly as if he knew that he carried a great general.” Even though the “Confederate armies won many battles . . . they could not win the war.”

The courts intervene

As the textbook commission went about writing the Lost Cause narrative, reality was intruding on two fronts, one of them in Simkins’s and Hunnicutt’s hometown. Farmville students went on strike over unequal facilities in spring 1951 and filed a lawsuit in October. The students, led by Barbara Johns, lost in trial court, but Dorothy Davis v. County School Board of Prince Edward became one of the five cases consolidated in the Supreme Court’s Brown v. Board of Education of Topeka.

After the students’ Brown victory in 1954, the Virginia governor appeared to accept the court’s unanimous decision outlawing school segregation. But Byrd decried it as unconstitutional and coined the term “Massive Resistance.” The details, if you didn’t live in Virginia in the 1950s, seem incredible: a state government enacting laws to close schools. Most of the state’s newspapers participated in an allied effort coordinated by the editor of the Richmond News-Leader, James J. Kilpatrick, later made famous by a slot on 60 Minutes opposite Shana Alexander (and even more so by Dan Aykroyd’s parody with Jane Curtin on Saturday Night Live: “Jane, you ignorant slut”).

In the wake of Brown, publication of the textbooks was delayed. Adam Dean writes that Attorney General J. Lindsey Almond Jr., who described himself as “the most massive of all resisters,” was invited to edit the seventh-grade text. Voters elected Almond governor with 63 percent of the vote in 1957, the year the textbooks arrived in classrooms.

Citizen and business discontent with Massive Resistance grew from the start, but it only  collapsed in 1959, when federal and state courts ruled on the same day that closing public schools was unconstitutional. Arlington and Norfolk quickly admitted Black students, but other districts slow-walked integration long after the Supreme Court ruled against Prince Edward County again in 1964.

With enactment of the Voting Rights Act, Virginia politics began to shift. Mills Godwin won election as governor in 1965 promising more progressive policies on race. But the State Board of Education held firm, renewing the textbooks in 1966 for another six years despite growing criticism among educators and in Congress and other states. In 1968 the board – whose president Lewis F. Powell Jr. would become a Supreme Court justice three years later – proposed a unit in “citizenship education” emphasizing “the rule of law, now so gravely endangered by crime, disorders, extremism and disobedience.” The board’s proposal, according to an AP story, alleged that “there is abroad in this country an escalating unrest which has led already to unprecedented crime, discord and civil disobedience. If unchecked, this unrest will lead to revolution and the end of all freedom.”

By the time the board’s six-year renewal of the books expired in 1972, Powell’s view was in retreat. The month he was sworn in as a justice, the board voted unanimously to withdraw the books. Yet they remained: Pat Lang, a McLean mother, protested about my fourth-grade text in a letter to The Washington Post in October 1977. That damned book was in circulation for a generation of children.

The scholars begin digging

It’s not as if Virginia leaders and academics hadn’t known better from the start. Alongside the political realm arose a new scholarship, and it started at U.Va.

Months after the Supreme Court delivered Brown, C. Vann Woodward, an Arkansan educated at Emory, Columbia and the University of North Carolina, delivered a series of lectures before an integrated audience in Charlottesville. The lectures became his first book, The Strange Career of Jim Crow. A decade later Martin Luther King Jr. called it “the historical bible of the Civil Rights Movement.”

In a 2000 remembrance published in the New York Review of Books, Woodward protégé David Brion Davis, perhaps the nation’s most prominent scholar of slavery, wrote of Woodward:

He led the way in desegregating the history of his native South and in demolishing a deeply rooted mythology that dominated white Americans’ views of race relations from the end of Reconstruction in 1877 until the 1950s and 1960s – a mythology endorsed by many leading historians and popularized by novelists and filmmakers in, for example, Birth of a Nation and Gone with the Wind.

Negro slavery, according to this mythological tradition, had been a mild and benign means of civilizing African savages. Slavery would have evolved into a more productive and less authoritarian system of peasantry had there been no Civil War, a wholly “repressible conflict” ignited by extremists on both sides. The subsequent Reconstruction, with carpetbaggers and clownish blacks running corrupt state legislatures, had been a grotesque circus, moderately and often humorously checked by the Ku Klux Klan, until “the Redeemers” restored white supremacy and a reasonable system of “separate but equal” Jim Crow.

Woodward’s scholarship continued in Origins of the New South, the greatest influence on my view of our political history since I read it in my final term at Virginia. Within the book was his doctoral dissertation on Thomas E. Watson, an 1890s Georgia Populist who tried to unite rural Americans across race and class and advocated the franchise for Black men. Reading Watson’s turn to nativism and racism after 1900, I thought then that the South got what it deserved: decades of economic and political underdevelopment. The region could have led the way to a more perfect union: a multi-racial, multi-class movement challenging the power of the cartels that ran the economy to the detriment of working people. But as people are wont to do, they fell for racial and cultural divisions incited by demagogues.

Thirty-nine years later, on the 244th anniversary of the document articulating Thomas Jefferson’s self-evident truths, the monuments to a racist past are tumbling, Mississippi has retired its flag, and corporate partners have finally informed Dan Snyder that his NFL franchise’s nickname harms its economic value.

Next stop: Charlottesville, where during neo-Nazis’ defense of a statue of Robert E. Lee three summers ago, a white-supremacist rammed his car into a crowd of counter-protestors, killing Heather Heyer. The president’s defense of white supremacists three days after Heyer’s death – “very fine people on both sides” – remains the nadir of his dismal poll numbers.

For every action. . . .

Still, four months from election day, Donald Trump went to Mt. Rushmore, a site with its own complex history, and claimed in language recalling Harry Byrd and Lewis Powell:

Our nation is witnessing a merciless campaign to wipe out our history, defame our heroes, erase our values and indoctrinate our children. Angry mobs are trying to tear down statues of our founders, deface our most sacred memorials and unleash a wave of violent crime in our cities.

No, Mr. President. Though you may wish to confuse factions acting and reacting in the streets, your protestors are exhuming history. It doesn’t reverse the division you have promoted, but it may set a foundation for a new birth of freedom.

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Stonewall Jackson base, Richmond, July 1. Photo: Brian Ross Cannon

 

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On becoming a nearly-senior citizen

OLYMPUS DIGITAL CAMERAToday I turn 62. A birthday is a moment for reflection, especially when on this one the government asks, “Would you like a smaller pension now, or a bigger pension later?” And I mull: How much longer is Social Security – and this civilization – going to be here for me?

2020 has been interesting, and it’s only the summer solstice. The shocks are accelerating: COVID, economic collapse, George Floyd. I’m confident that more shocks will arrive before November 3, and after. We appear on the verge of a coming-apart socially and politically that is the result of our choices: the decline of education and the willingness to engage in the slog of self-government; a corrupt campaign-finance system in which officials bow to the private interests they are charged with overseeing; and a ruling political party bent on depriving its perceived opponents of representation. We don’t even have the discipline to deal with a pandemic when we know how to suppress it. All that’s bad enough, but these are temporary problems. The critical one we ignore.

The nature of capitalism is in the expression of the urge to exploit. Exploiting people is not an existential problem, as there have always been more people, and outside our tribes we don’t care about them. (The federal government gives pennies for social welfare and foreign aid.) But exploiting the shrinking natural resources of the planet, and showing zero inclination to reverse course, sets us up for a cataclysm. Soon.

Because of our optimism and awareness of a few thousand years of scientific progress, we assume we’ll devise solutions to forestall disaster. But climate change is only the consequence of our addiction to more. Whether we have a lengthy Soylent Green or Blade Runner or 12 Monkeys, who knows. The science is: We are about to have a die-off from the change already baked in. When author Dahr Jamail came to Powell’s Books to read from The End of Ice, I asked him: What did his source-scientists estimate to be the earth’s sustainable population? They wouldn’t say, but his own is about 1 billion people. (The planet will survive, and Mother Nature won’t skip a beat.)

Two birthdays ago, I traded the nation’s capital for Portland, Oregon, to escape the political pool in which I had swum since childhood for the beauty and the vibe of the Pacific Northwest. Of course, I’m still political, I just left the Majors for Triple A, where leaders as a whole also have their heads in the sand. Oregon’s problems are different. I sense a scarcity mentality, perhaps stemming from its frontier-extractive heritage, now depleted. D.C.’s mentality is ambition to suck at the always-flowing teat of the federal government. But Oregon too has its teat: big business depletes the state’s natural resources – timber and water – and pays nothing for the privilege, thanks to an immobile legislature.

That’s American capitalism: privatized profits and socialized costs. In the case of ancient forests, converting them into plantations unleashes consequences we understand: the destruction of the ecosystems on which all life depends.

That California and Washington have better environmental regulations and tax laws to hold the rape of the land in check is beside the point. None of these practices is sustainable. Half the world’s forests have been destroyed since Wisconsin’s were mowed down to build Chicago, a nanosecond in the planet’s timeline. By the end of the century, at least half of what remains will be erased. Look at satellite images of the Northwest, or the Amazon, or Indonesia, or Siberia.

Though I’m disturbed by what we the people have manifest in Donald Trump the personality, which pumps enthusiasm or disgust, he doesn’t matter. Yes, he is the Great Accelerator, pushing us toward the environmental edge. But we’ve known we were headed there for 40 years, and we’ve elected one government after another that either did nothing or nibbled at the edges.

Here in Oregon, Republican legislators have walked out of the Capitol the last two years to prevent ruling Democrats from obtaining the simple majority required to pass a modest cap-and-trade bill. Their constituents, who rely on either extraction or government subsidies, think climate change is somebody else’s problem.

Mt. Hood, 49 miles from my neighborhood, is still covered in snow year-round. I would be fortunate to have it be among my final views.

Meanwhile, I’m uncertain what to do about my pension option, though as part of the richest generation in world history – the (white) American boomers – the question is academic. But I’m under no illusion that our stewardship of this blue marble will work out well for my 20-something children.

Posted in climate change, Uncategorized | 5 Comments

Snapshots of a myth

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The five-story bronze of Robert E. Lee on Monument Avenue in Richmond, erected in 1890, with graffiti inspired by the murder of George Floyd. A temporary injunction has blocked Governor Ralph Northam from removing it.

Defenders of statues of Confederate generals and soldiers contend these monuments should not be removed, ever, because they are “history.”

Monuments have nothing to do with history. They are snapshots of a narrative. My favorite monument-narrative is the Lincoln Memorial. On its walls are chiseled the Gettysburg Address and the Second Inaugural, the two greatest speeches in American history, one of which includes the single greatest sentence in American history.*

But the Lincoln Memorial is not history. It is a way to tell a story, a story intrinsic to our national experience.

What statue of a Confederate general tells a story? None. All are monuments to a myth. Propaganda. We might put them in museums, along with a narrative:

This statue was mounted on a notable boulevard in order to further a myth about a “lost cause”: slavery, the practice of buying and selling human beings as commodities, part of an economic system, enforced by violence, that built this country over its first 250 years, and one that continued in a similar form for another 100 years. At the heart of the system was the production of cotton, financed by Northern banks and spun in Northern and English factories by exploited labor. At the heart of cotton was slavery.

The purpose of this statue, commissioned when leading white politicians and businessmen all over the country were members of the Ku Klux Klan and other racist organizations, was to remind the descendants of slaves that, despite the 13th, 14th and 15th amendments, we honored those who fought to preserve slavery, to “put them in their place,” as was commonly said for a hundred years. It is a shameful era.

Finally, in the spring of 2020, We the People – prompted by an outpouring of rage over regular police killings of black people, generally the descendants of slaves – decided it was time to recognize what these symbols mean: white supremacy.

This exhibit is brought to you by Conglomerate Z, a successor corporation to the American slave trade.

_____________________

*”Yet, if God wills that it continue, until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said ‘the judgments of the Lord, are true and righteous altogether.’ ”

 

 

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The twilight of LGBT discrimination

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Rep. Howard W. Smith authored the provision outlawing sex discrimination in employment

The June 15 Supreme Court decision in Bostock v. Clayton County (Georgia) has a sweeping logic that, if applied to other areas of law, will mean the end of legal discrimination against people who identify as LGBTQ.

Justice Neil Gorsuch, in his 6-3 opinion, applies a plain-text reading to the employment title of the 1964 Civil Rights Act: Identifying as LGBT arises out of sex, and employers can’t discriminate on the basis of sex. Disparate treatment on account of any condition of sex is illegal. Disparate treatment of an individual, even if as groups an employer treats men and women equally, is illegal. An employer can’t engage in disparate treatment even if it’s only one of multiple reasons cited for that treatment.

All Justice Gorsuch had to do, he wrote, was read the words. The 1964 Civil Rights Act, written largely by the Justice Department under Attorney General Robert Kennedy, bars discrimination primarily applying to “race, color, religion, or national origin,” in particular in voting; or in the use of public accommodations, government facilities (on any level) or public schools; or in any program or activity receiving federal funding. The Kennedy proposal responded to the confrontations with Southern states in the 10 years following Brown v. Board and the weaknesses of the 1957 Civil Rights Act.

But Title VII alone also bars discrimination in employment on account of sex. The law makes it unlawful:

“. . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

“Sex” was famously proposed by House Rules Committee Chairman Howard W. Smith. (The Rules Committee is where bills are assigned a procedure governing floor debate; the committee approved the addition as a floor amendment.) Historians aren’t clear why Smith added it, though some believe it was an effort to sabotage the bill; Smith, a Virginian in the House since 1931, was a segregationist. But the politics were complicated; Smith was a long-time proponent of the Equal Rights Amendment and fairness for (white) women, and the AFL-CIO preferred a leg up for its members – men.

In Bostock, the Trump administration joined three defendants in the consolidated case, employers who had fired two gay men and another man who, after six years as an employee, announced his intention to live as a woman. The Justice Department argued that “sex” didn’t apply to orientation or identity. Or, as Gorsuch summarized in his opinion, something other than “status as either male or female (as) determined by reproductive biology.” Gorsuch swept away their distinctions and arguments over 50-year-old interpretations of “discriminate” and “sex”: “An employer who fires an individual merely for being gay or transgender violates Title VII.”

Trump officials have written or rewritten agency rules to allow discrimination against LGBT persons in a range of areas. Last week the administration finalized a rule that repealed an Obama administration prohibition, pursuant to the Affordable Care Act, on discrimination in the provision of health care.

If the court’s opinion is applied to these other areas, then all those efforts will fail sooner than they would under a Biden administration, or any other.

 

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Will Florida end this battle against voting?

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Desmond Meade (left), head of the Florida Rights Restoration Coalition, which authored Amendment 4, with me at a 2018 conference in Virginia

The saga of the restoration of the voting rights of Florida ex-felons continues, but it may be nearing an end. The crux of Federal District Judge Robert Hinkle’s May 24 opinion in Jones v. DeSantis, about the legislature’s attempts to overrule the voter-approved Amendment 4 to the Florida constitution:

“This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.”

Which is to say, for those without money, Florida’s latest poll tax has been struck down.

I’ve been writing about the theory and politics of felon disenfranchisement for a while. Nowhere has the issue been more consequential nor litigated than in Florida, which since Bush v. Gore has been the ground zero of voter suppression. Governors Jeb Bush and Charlie Crist eased franchise restoration; Governor Rick Scott squelched it. Then the citizens got involved.

In 2018 Florida voters, by nearly 2-1, passed an amendment to the state constitution. Under Amendment 4: “[A]ny disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation.” (Murder and felony sexual offense were excluded.)

Despite the mandate, Florida’s GOP-dominated legislature set about to undo it, passing on party-line votes in the House and Senate SB7066, which defined “all terms of sentence” to include “any portion of a sentence that is contained in the four corners of the sentencing document,” including the payment of court-imposed fines, fees and restitution.

What’s at stake? As of 2016, nearly 1.5 million ex-felons in Florida couldn’t vote. At issue are those who could get the vote but for SB7066. That is 774,000, estimates the Campaign Legal Center, which brought one of five federal lawsuits in the days after Governor Ron DeSantis signed the bill last June.

In August DeSantis requested an advisory opinion from the state supreme court on the “legal financial obligations” (LFOs) added by SB7066. The briefs contested the meaning of the “four corners” and the voters’ intent.

(Note: In Florida and elsewhere, hundreds of dollars in court fees (plus interest) are routinely imposed as a means of funding government that have zero to do with the crime. If you’ve lived where court fees are added to the price of contesting a traffic ticket, you get this.)

In January the Florida Supreme Court opined that conditioning of the right to vote on payment of costs was consistent with Amendment 4. Advised the court, “[T]he phrase ‘all terms of sentence’ . . . has an ordinary meaning that the voters would have understood to refer not only to durational periods but also to all LFOs.” (The governor didn’t ask what “completion” might mean, and the court didn’t say.)

Dissenters included the Harvard Law Review:

[The supreme court] improperly relied on tools of interpretation adapted to understand legislation drafted and passed by professional legislators, not ordinary citizens.  Rather than focusing on what the plain meaning of “completion of all terms of sentence including parole and probation” would be to an ordinary citizen, the court turned to technical tools like the Florida Rules of Criminal Procedure and Black’s Law Dictionary to define “sentence.” In so doing, the court ignored the noscitur a sociis canon [in legalese, the context] and the reality that laypersons are likely to think of penalties related to time and confinement when the word “sentence” is placed in the context of “parole” and “probation” – not court fees.

Meanwhile, the federal lawsuits, consolidated as Jones v. DeSantis, contended that SB7066 violated the First, 14th (due process and equal protection) and 24th (poll tax) amendments to the Constitution. In October Judge Hinkle issued a preliminary injunction against enforcement of SB7066, finding that DeSantis was unlikely to win on the merits.

DeSantis appealed, and in February the 11th Circuit upheld Hinkle’s preliminary injunction. It reasoned that Florida was imposing a condition based not on the crime but the ex-felon’s ability to pay. That, the Circuit said, violated Equal Protection: two identically situated felons who completed their sentences could not have their right to vote determined by their ability to pay money imposed at sentencing, and that amounted to a poll tax.

On May 6, at the conclusion of the eight-day bench trial (conducted by conference call), Hinkle surprised no one when he announced that the state had erred. The evidence showed that Florida has no way to track whether ex-felons have costs within the “four corners” or have paid them. The record reads like Kafka. Wrote the judge: “The State has shown a staggering inability to administer the pay-to-vote system and, in an effort to reduce the administrative difficulties, has largely abandoned the only legitimate rationale for the pay-to-vote system’s existence.”

Hinkle’s 125-page opinion incorporates the 11th Circuit’s reasoning. Under his order, the pay-to-vote system is unconstitutional:

  • for “individuals who are otherwise eligible to vote but are genuinely unable to pay”
  • to the extent that “the amounts that are unknown and cannot be determined with diligence”
  • because the costs “are, in substance, taxes”

But for those who can pay, the requirement to pay a “determinable amount” is not unconstitutional. (We’ll see whether Florida can determine amounts.) Thus Hinkle didn’t void the entire law.

The order establishes procedures by which ex-felons can seek information on any fees owed and, absent a supported statement from election officials, register to vote in 21 days.

“At least on its face, Amendment 4 was self-executing,” Hinkle wrote. But if the legislature’s intent to disenfranchise were ambiguous, the state argued that if the court were to strike the LFO condition, then the rest of Amendment 4 should be voided. Hinkle responded:

The State makes the rather remarkable assertion that if it cannot prevent people who are unable to pay LFOs from voting, then all of Amendment 4 must fall – that even felons who have served all their time, are off supervision, and have paid all amounts they owe cannot vote. This is a breathtaking attack on the will of the Florida voters who adopted Amendment 4.

Breathtaking. Unless one has reviewed 150 years of disenfranchisement efforts, as I did in my letter to Governor Scott five years ago. The state may declare a cease-fire, or it may continue this particular battle in a long war. It’s up to Governor DeSantis, but in this skirmish he had no bullets.

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