This is the signing ceremony for SB 101. The event was closed to the public—only the bill's chief advocates were invited.
Last week, Indiana Governor Mike Pence (R) signed SB 101 into law, the so-called “Religious Freedom Restoration Act.” Apparently, Pence was surprised at the nationwide outcry against the law and he’s adopted a defensive crouch.
"There has been a lot of misunderstanding about this bill,” Pence asserts. “This bill is not about discrimination, and if I thought it legalized discrimination in any way I would’ve vetoed it.”
But of course it’s about discrimination! That’s the point of the law. It invites individuals and corporations to violate state and local laws, regulations and rules and claim, as a legal defense in court, that they were following their own religious principles.
On its face, the Indiana law doesn’t mention sexuality. But the measure is aimed at the LGBT community and not others because the state can’t override federal law that protects against discrimination based on race, color, religion, sex, and national origin. While other states are filling the gap between federal and state law, passing LGBT Fairness Acts to prevent discrimination based on sexual orientation and gender identity or expression, Indiana is going in the opposite direction.
How does this work? Indianapolis, Bloomington, South Bend, Evansville, and other cities and counties currently prohibit discrimination on the basis of sexual orientation and gender identity. Under SB 101, individuals and companies can insist that equal treatment of LGBT people violates their religious principles. It would be naïve to think that companies won’t use SB 101 to discriminate, or that individuals won’t be encouraged to discriminate by right-wing organizations that will promise to cover their legal defense.
Conservatives have a fallback argument. Even if the law invites individuals and corporations to discriminate, they ask, why is everybody picking on Indiana? The federal government and 19 other states have passed similar laws, they say.
It is true that other jurisdictions have enacted so-called “religious freedom” laws, but Indiana’s is the broadest and worst.
Media Matters did a good job explaining why the Indiana law is not comparable to the federal statute enacted in 1993 in reaction to a Supreme Court ruling. While the federal law is limited and fairly benign, SB 101 is written very broadly and designed to provide legal ammunition for conservatives in litigation against governments and in private disputes.
The argument that Indiana’s law is the same as 19 other states is propaganda based upon the law’s title and not its contents. (Sadly, the Washington Post repeated that propaganda.) A thorough legal analysis of SB 101’s language can be found here.
SB 101 goes beyond other laws because its definition of “exercise of religion” is unlimited; potential complainants are unlimited (individuals, partnerships, corporations); and it applies to unlimited types of lawsuits.
Last year, the Arizona legislature passed a “Religious Freedom” bill that was similarly overreaching and right-wing Republican Governor Jan Brewer, noting the legislation “could divide Arizona in ways we cannot even imagine and no one would ever want,” vetoed it. Apparently Pence lacks Brewer's common sense. The new Indiana law invites other states to enact this kind of extreme legislation, and it looks like Arkansas will soon accept that invitation.
Nearly seven score years ago, our nation declared its independence based on the proposition that “all men are created equal,” and a few years later, our founders adopted the First Amendment, guaranteeing everyone the right to religious freedom. These founding documents have served us well. We don’t need SB 101's religious “rights,” and the idea of using religion to bully others violates America’s fundamental values.
Last week’s column bemoaned the fact that average Americans believe unquestioningly in “free markets,” even though there are no such things. Indeed, every market relies on a dense web of laws and regulations. Subsidies, loopholes, grants, contracts, trade policy, labor law and inconsistent enforcement all warp markets. To say the words “free markets” is to perpetuate a dangerous right-wing myth.
So promote “fair markets,” not free markets. Can this expression help persuade voters? Yes it can. For example, voters already prefer “fair trade” to “free trade.”
More important, every time we say free markets we hurt the progressive cause. Persuadable voters keep two somewhat-contradictory economic concepts in their minds. The words free markets evoke the conservative belief that governments should stay out of the economic sphere and let markets work things out. The phrase fair markets, in contrast, reminds voters of their firm belief that our economic system is rigged to favor the rich and powerful, and that governments should do something about it. We must reinforce the progressive concept, not conservative one.
Beyond pure messaging, “fair markets” should mean something substantive. It should reflect a philosophy. Progressives need to promote worldviews, not just words.
Last week, when the Federal Communications Commission voted for net neutrality and changed the way the Internet is policed, conservatives fell back on their favorite myth. The right wing media raged that it’s “a blow to the free market system.…”
But there’s no such thing as “free” markets.
Somehow this neoclassical, theoretical concept plays a central role in contemporary politics. When we progressives try to explain our economic policies, we face the fundamental challenge that typical American voters believe in “free” markets. And why shouldn’t they? They hear no real arguments to the contrary.
But the truth is, the free market is a fairy tale, a fraud, a rhetorical device. American markets are not, and never were, free of government influence. Just open up the business page of any major newspaper and see for yourself. One company seeks a government subsidy. Another is forced to disclose finances by the SEC. The Fed changes the prime rate, affecting everyone’s ability to borrow. The Administration proposes a treaty that would reward some industries over others. The government is always involved, always biasing market results, always nudging and twisting and bumping around the supposedly invisible hand.
In state legislatures, 2015 is the right wing’s best chance to enact their most extreme legislation. The right now controls more state legislatures than at any time since the 1920s.
This opportunity is fleeting. Because of increased voter turnout in presidential years, Democrats will probably erase at least some of the Republican state legislative gains next year. In addition, GOP political leaders will want to paste a more moderate face on their party's brand in 2016. So this is their year, they think.
The right has made clear that its partisans have three overarching state legislative priorities, in this order: (1) weaken labor unions, (2) suppress voting by progressive-leaning citizens, and (3) satisfy their religious extremists.
Last week’s column explained the science behind political stubbornness. Essentially, our brains are hard-wired to engage in “confirmation bias.” Further, our opponents get a blast of dopamine and feel pleasure after they rebut our arguments—even when that rebuttal is based on irrationality and falsehood. By the end of last week’s column it may have seemed like political persuasion is virtually impossible.
And yes, it is extremely difficult to change the minds of partisans. There are conservatives, for example, who are unpersuadable no matter how many scientists testify to the truth of global warming, no matter how much evidence shows that the death penalty doesn’t deter murder, no matter the incontestability that voter fraud at the polls is too rare to worry about.
In fact, politics isn’t really about changing our opponents’ minds. It’s about mobilizing our own base while persuading that slice of voters who are persuadable.
Why won’t people listen? They’re so irrational! You make a sensible, even irrefutable political argument and they’re still not persuaded.
Cognitive science tells us that persuasion is hard. When deciding whether to agree with you, people rely on emotion and ingrained beliefs far more than facts. Indeed, if your listeners hold beliefs intensely, you’re probably wasting your time no matter how many facts you can muster.
There is science behind that stubbornness. Let us explore why people’s brains react this way and use the information to restructure our arguments to make them more effective.
Generally, political science (like economics) is based on the assumption that people mostly act rationally, that their political opinions and the way they vote are based on self-interest. But that’s unrealistic.
Due to the ghastly 2014 elections, more state legislators are Republican and the GOP controls more state legislative bodies than at any time since the 1920s.
Republicans now control the governorship and both houses of the legislature in 23 states: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin and Wyoming.
Statehouse Republicans won’t want to appear too extreme in 2016, both for the presidential election and for their own reelections. Therefore, we must expect a deluge of ultra-conservative legislation in 2015; we’ll start to see it within weeks.
The business wing of the conservative movement will push for long-term structural changes—measures that make it easier for right wingers to win future elections, or policies that tilt the system to benefit the rich even more. And these changes are hard for progressives to undo. They include: bills to weaken the political influence of key progressive allies like labor unions, trial lawyers, and public school teachers; measures making it harder for people to vote, like voter ID and rolling back early voting; and bills to cut taxes on rich individuals and corporations, starving governments for revenue so that, in Grover Norquist’s words, right wingers can shrink government “down to the size where we can drown it in the bathtub."
For years, conservatives used “wedge issues” to split moderates from progressives—measures like criminalizing flag burning, cutting “welfare,” and (until recently) banning same-sex marriage. They still do that, of course, but the Tea Party has forced conservatives to put greater emphasis on policies with little popular appeal.
It’s time for progressives to promote some wedge issues of our own. In 2015, progressive wedge issues tend to fall into three categories: (1) addressing the way our economic system has been rigged to benefit the rich; (2) supporting important groups that conservatives target; and (3) promoting issues that drive conservative extremists to say crazy things.
The minimum wage remains a powerful wedge issue but it’s not listed among the five because it already has been or is being pushed just about everywhere. These policies—which hyperlink to model bills featured in the Progressive Agenda for States and Localities—should be introduced in both red and blue states. If you can’t enact the legislation, use these battles to organize the grassroots and show voters the differences between conservatives and progressives. Let them see that we are the ones on their side.
To be a progressive is to seek new laws that advance economic and social justice for all. That endeavor was thoroughly frustrated by the last Congress, and the next one will be worse. On the federal level, progressives had to settle for President Obama’s executive orders, which are praiseworthy but subject to reversal by a future president.
Yet there were true legislative victories last year—in states and localities across America. Progressive state legislators, city council members and county commissioners enacted a wide range of protections and reforms. These lawmakers are now squarely at the vanguard of the progressive movement and we ought to recognize some of their accomplishments:
Minimum Wage—While Congress ignored this crucial issue, ten state legislatures (CT, DE, HI, MD, MA, MI, MN, RI, VT, WV) and many cities (including Chicago, District of Columbia, San Diego, Santa Fe, and Seattle) raised their minimum wages in 2014. In addition, the minimum wage was raised in four states (AL, AK, NE, SD) through November ballot initiatives. Today more than 60 percent of Americans are protected by a state or local minimum wage that is higher than the federal minimum.
Paid Sick Days—The effort to provide employees with paid sick days achieved a breakout year in 2014 with legislative victories in two states (CA, CT), a ballot initiative victory in Massachusetts, and laws in at least 16 localities (including New York City, Washington DC, Seattle, Portland OR, Oakland, San Francisco, San Diego, Newark and Trenton).
More Employee Protections—“Ban the Box” legislation, which prohibits a question about criminal history on job applications, was enacted in four states (DE, IL, NE, NJ) and several cities (including Baltimore, Columbia MO, Louisville, Mobile, New Orleans, Indianapolis, and Syracuse). Today 13 states and more than 70 cities and counties Ban the Box. In addition, six states (LA, NH, OK, RI, TN, WI) enacted social media privacy laws that prevent employers from asking workers or job applicants for their social media passwords or asking them to “friend” the employer. San Francisco enacted a first-in-the-nation Retail Workers Bill of Rights.
Protecting Immigrants—While the U.S. House ignored a Senate-passed effort to reform immigration law, states and cities have decisively sided with immigrants. Both Florida and Washington enacted DREAM Acts, so now a total of 18 states provide in-state college tuition to unauthorized immigrants. Spokane, Washington was the latest city to enact a “Don’t Ask Immigration Status Act,” and New York City passed legislation to create a city ID card available to all residents whether authorized or not.
Electronic Surveillance— Ten states (CO, IL, IN, IA, MD, MN, TN, UT VA, WI) enacted laws requiring police to get a warrant before accessing data tracking an individual’s movements through their cell phones. Three other states (IN, IA, WI) passed legislation requiring a warrant before police use drones for individual surveillance. (However, Governor Brown vetoed similar drone legislation in California.)
Universal Pre-K—A number of states and cities significantly expanded pre-Kindergarten programs, including Maryland, Rhode Island, Vermont, Chicago, Nashville and New York City.
Voter Registration—Illinois enacted a pilot same-day registration program and a bill that will make the process permanent has passed both the state house and senate. Utah also enacted legislation to test same-day registration, while in November Montana voters rejected a right-wing ballot initiative that attempted to repeal same-day registration. Ten states (not including Utah) and the District of Columbia now offer registration on Election Day. In addition, three states (MA, MN, NE) enacted laws to permit online registration, making such registration now legal in 24 states.
Pregnant Workers Fairness—Four states (DE, IL, PA, WV) and three cities (Philadelphia, Providence RI, Washington DC) enacted a “Pregnant Workers’ Fairness Act” that ensures pregnant employees receive reasonable accommodations to help them stay on the job. So far, a total of 12 states and five cities have enacted this important legislation.
Cell Phone Kill Switch—Both California and Minnesota enacted laws mandating that smart phones come with a “kill switch” that renders them useless if lost or stolen.
Gun Violence Prevention—The big news was Washington State’s approval by ballot initiative of background checks for all gun purchases. Less well-known are eight other state legislative victories in the past year, especially a groundbreaking Gun Violence Restraining Order law in California and a comprehensive strengthening of gun law in Massachusetts.
The fact is, right-wing organizations have long understood the importance of state and local policy and they have responded by providing strong, coordinated assistance to conservative lawmakers, most publicly through the American Legislative Exchange Council (ALEC). In 2014, ALEC created a new organization, the American City County Exchange (ACCE), to spread their “free market” model laws across the nation at the local level. Progressives need to aggressively fight back.
The Public Leadership Institute just published its 2015 Progressive Agenda for States and Localities. Our Progressive Agenda includes hyperlinks so that left-of-center legislators, council members and commissioners have direct access to more than 150 progressive model bills, almost half of which are authored by our staff at the Public Leadership Institute. Working with allies across the nation, we will promote our proactive Agenda to a nationwide network of more than 13,000 progressive state and local lawmakers.
If you want to get involved at the state or local level, please feel free to join the effort here.
(This column is cross-posted on the Campaign for America’s Future blog.)
Where government has no proper role, because public action would violate individual rights, progressive policy should be based on freedom. By freedom, I mean the absence of legal interference with our fundamental rights—freedom of speech, religion, and association; the right to privacy; the rights of the accused; and the right of all citizens to vote. Compared to an individual, government wields tremendous power, so a progressive policy adds great weight—in the form of strong legal rights—to the individual’s side of the scale. For example, freedom of speech is absolutely sacrosanct unless it immediately and directly puts others in danger—“falsely shouting fire in a theater” as Justice Oliver Wendell Holmes put it.
Freedom should be fairly easy to understand—it’s a defense of our basic constitutional rights and civil liberties. I include the right to vote because it should be as sacred as any constitutional right. The very definition of democracy—rule by the people—requires the unrestricted right to vote. So laws that keep American citizens from casting ballots should be eliminated on the grounds that they violate our most fundamental democratic freedom.
I very intentionally adopt a limited definition of freedom, often called “negative freedom.” Why? Because a limited definition keeps the word from becoming meaningless.