Tax the Rich: Implementing a State Tax on Investment Gains
Tax the Rich: Implementing a State Tax on Investment Gains
Introduction
The concentration of wealth in the hands of the elite few impacts every facet of our lives. It is directly connected to expanding wealth disparities and the rising cost of living, the existential climate crisis and the rampant expansion of authoritarianism, and it threatens the very existence of the multiracial democracy that we strive for.
This concentration of wealth did not happen by accident; it is not the result of inevitable forces. It is a product of deliberate policy choices over decades and centuries. Billionaires and centi-millionaires (those with at least $100 million in wealth) in America are amassing wealth, with a record 700% increase in inflation-adjusted unrealized capital gains over the last three decades.
Racism, sexism, and classism are entrenched in our current economic system, by design. As a result, Black, immigrant, and Indigenous people, working class and rural communities, women, and queer people are disproportionately exploited and denied prosperity by our economic policies. Some of these problems could be mitigated if the extremely wealthy paid their fair share toward meeting vital social needs, particularly in terms of spurring opportunities for communities experiencing structural poverty. For example, considerable research has shown that high-quality preschool can play an enormous role in helping every child reach their potential. Given the scale of wealth involved, getting the extremely wealthy to pay their fair share in taxes could raise substantial revenues toward vital initiatives like this.
Unfortunately, the absurd regressivity that is evident at the very top of our tax system at the federal level is even more evident at the state level. This is partly because income taxes, as currently designed at the federal and state level, do not reach unrealized gains. For example, billionaire Jeff Bezos was paid about $1.7 million in total compensation by Amazon in 2022, but his net worth in 2023 increased by a massive $70 billion, which amounts to almost $8 million per hour. Furthermore, states have not levied taxes on broad forms of wealth for almost a century, while other countries, including Switzerland since 1848 and Norway since 1892, have retained their wealth taxes. The extremely wealthy in America have employed armies of lobbyists to ensure that their effective tax rates are kept low and that neither federal nor state taxing authorities can effectively tax intergenerational wealth transfers.
Historically, state legislators, in collaboration with the communities most impacted by these policy choices, have led the fight in challenging corporate and billionaire power by organizing communities and building economies that empower people. Modernizing the tax code is an essential piece of this vision. Taxing unrealized gains, in particular, offers an opportunity to reverse the increasingly widening wealth disparities in the United States and to fund our future.
Note on Terminology Unrealized gains are the increased value of assets that have not yet been sold (or “realized”). |
Wealth Tax Overview
Wealth includes ownership of many different types of assets, including real estate, vehicles, and art, but the largest category among the very rich is ownership of businesses, stocks, and mutual funds. Through a series of tax loopholes dubbed “buy, borrow, die,” the ultra-wealthy can hold on to and use financial securities as collateral for loans (often securities-backed lines of credit) instead of selling investments to cover expenses. The loopholes also allow their inheritors to receive these financial assets on a legally allowed “stepped-up” basis (i.e., based on valuing the inherited stock at the current market value) without paying any capital gains taxes (McCaffery, 2019). This means that all inherited capital gains are provided a tax benefit that would not be allowed if someone sold off their financial securities before their death. To make matters worse, the ultra-wealthy would only need to retire and/or move to a state that does not tax income before realizing their capital gains to avoid state taxation (Galle et al., in press).
For example, although Jeff Bezos relied on public investments in physical and human capital infrastructure in Washington State to establish Amazon, he waited until he moved to Florida (a state without a capital gains tax) before selling $2 billion in Amazon stock, depriving Washington of almost $600 million in state revenue. It is imperative that unrealized gains are taxed, or the massive income and wealth inequalities in our country will continue to grow unabated, with the impacts disproportionately felt by communities structurally denied opportunities (Addo & Darity, 2021).
Note on Securities-Backed Line of Credit (SBLOC) SBLOC is the most common way to borrow in the “buy, borrow, die” scheme and is similar to a home equity line of credit, but financial investments are the collateral instead of real estate. SBLOC’s advantages include: (1) no capital gains taxes, (2) flexible repayment schedules, (3) simple and low-cost approval process, and (4) relatively low interest rates. |
While no state currently has a wealth tax on a broad range of assets, the U.S. does levy taxes on some forms of wealth. Property taxes are an example of taxing assets before they are sold, though overall the property tax is regressive. Another example is the federal expatriation tax, which includes a tax on net unrealized capital gains for individuals with a net worth of at least $2 million who have relinquished their U.S. citizenship. As tax codes are common but can be complicated, the policy design and implementation of a new wealth tax model could benefit from the experience of other countries, from academics who have spent time researching these models, and from state legislation at the forefront of this reform in this country.
The following is a policy design discussion focused on taxing one major category of wealth: unrealized capital gains. This discussion pulls primarily from academic sources and focuses on real-world policy decisions. This is not meant to serve as “model” language, but instead to provide policy design considerations and options that policymakers should discuss with local movement groups and impacted communities.
Notes on Income vs. Wealth “Income is the sum of earnings from a job or a self-owned business, interest on savings and investments, payments from social programs and many other sources. It is usually calculated on an annual or monthly basis. Wealth, or net worth, is the value of assets owned by a family or an individual (such as a home or a savings account) minus outstanding debt (such as a mortgage or student loan). It refers to an amount that has been accumulated over a lifetime or more (since it may be passed across generations).” (Source: Pew Research Center) Realized capital gains are considered income, and unrealized capital gains are sometimes understood as a form of future income. But as these gains are part of assets that the wealthy can use as collateral, we refer to them in this report as a form of wealth, and a tax on unrealized capital gains as a type of wealth tax. Please note: The case Moore v. United States was argued in the Supreme Court in part to decide whether unrealized gains can be treated as income from a federal tax perspective, but states are not necessarily limited by this ruling, as it is focused on Congress’ power of taxation under the 16th Amendment. |
Types of Assets Included (or Exempted) and Asset Valuation
The first and perhaps most impactful policy design decision is which types of assets to include as taxable forms of wealth. The broadest definition of wealth includes total net assets, or the market value of all financial and nonfinancial assets after debt. For example, a French wealth tax exempts business assets, shares acquired from capital subscription (e.g., agreement to purchase an IPO), artwork, antiques and collectibles, and intellectual property, and is calculated by taxpayers based on the market value of all their other assets (Garbinti et al., 2023). A U.S. example of a broad wealth tax is 2023 CA AB 259, which, if enacted, would eventually apply a 1% tax on worldwide net worth in excess of $50 million and 1.5% on net worth over $1 billion. Care should be taken when considering what types of assets to exempt, as one study found that European wealth taxes that exempted wealth from owner–manager businesses created a tax loophole for the ultra-rich (Piketty et al., 2023).
Note on Financial Assets “Financial assets include fixed-claim assets (checking and saving accounts, bonds, loans, and other interest-generating assets), corporate equity (shares in corporations), and noncorporate equity (shares in noncorporate businesses, for instance, shares in a partnership). Financial assets can be held either directly or indirectly through mutual funds, pension funds, insurance companies, and trusts.” (Saez & Zucman, 2020) |
Unrealized Capital Gains
While wealth takes many forms, proposals by advocates, academics, and policymakers in the U.S. have primarily focused on taxing one category of wealth: unrealized capital gains. Not only is this form of wealth massive (estimated at $8.5 trillion nationally), but it is likely the most politically feasible to address and the least complicated to tax as well. A tax on unrealized capital gains is a relatively simple idea, but there are several policy design options that interested state policymakers and advocates can consider. Many of these proposals assess the value of unrealized capital gains based on gains or losses relative to a year-end market value, also referred to as mark-to-market. Two of the issues around a tax on unrealized capital gains using mark-to-market valuation are the price volatility of financial markets and the uncertain valuation of illiquid assets (Saez et al., 2021).
S&P 500 Historical Annual Returns
(Source: Macrotrends, LLC)
For example, looking at the history of S&P 500 returns above, how can a state budget office develop accurate revenue forecasts when the financial markets shift so quickly? The following policy options include unrealized capital gains tax designs that would help to address these mark-to-market tax concerns.
Unrealized Capital Gains Tax Terminology “Cost basis” is the original purchase price that the asset was acquired for and is used to calculate net gains or losses. “Deemed realized gains” are unrealized gains (or built-in gains) that are treated as realized for tax purposes and therefore potentially subject to taxation. “Exemption threshold” is the amount of net wealth exempted from taxation (e.g., the first $10 million) and therefore determines who the tax applies to. “Realized capital gains” are the profits from the sale of an asset, calculated as the amount received for the sale minus the cost basis. “Recognized gains” are the amount of realized or deemed realized gains that are subject to taxation (e.g., after subtracting deferred gains). “Tax limit” is the maximum amount of tax on a given asset (also referred to as a “cap”). |
Phased Mark-to-Market Unrealized Capital Gains Tax
A relatively straightforward proposal for taxing unrealized capital gains is to tax a portion of the increase in value of the underlying asset by comparing the current fair market value at a given point in time to the original purchase price (i.e., mark-to-market). One way to do this is to phase in the tax by effectively recognizing only a portion of the deemed realized gains every year. This phased-in approach reduces the risk of volatility inherent in a mark-to-market tax, as only a portion of financial assets would be taxable in a given year. Academic writing on this idea proposes that 50% of deemed realized gains should be recognized as taxable income, which would effectively include 50% of these shares as taxable income in tax year 1, 25% (half of 50%) in tax year 2, 12.5% in tax year 3, and so on (Gamage & Shanske, 2022). The percentage of deemed realized gains to recognize for tax purposes is a policy decision: a larger percentage would raise tax revenue more quickly and reduce the risk of the extremely wealthy using lobbyists to weaken the tax code, while a smaller percentage would minimize tax revenue volatility and the concern of impacting illiquid taxpayers (Gamage & Shanske, 2022).
Legislative Example: Phased Mark-to-Market
Legislative Example: Phased Mark-to-Market
Vermont (2024 VT HB 827)
Under this bill, Vermont taxpayers with net assets in excess of $10 million (the exemption threshold) would be required to include 50% of their unrealized capital gains (i.e., deemed realized gains) in their taxable income for the year, as if all assets had been sold at fair market value on the last day of the year. This taxable amount has an annual tax limit that cannot exceed 10% of the taxpayer’s net assets in excess of $10 million (Gamage, 2024). The bill also provides for an exclusion of $1 million per category of assets (e.g., real estate, nondistributed interest in a trust, and personal property, such as vehicles or art/collectibles) when calculating the net assets for the tax limit. This helps to simplify the valuation process, as a wealthy individual would only need to assess significant asset holdings, which may have already been done for insurance purposes. This bill does not apply a specific tax rate, but instead adds deemed and recognized capital gains to taxable income for individual income tax calculations. The bill also proportionally reduces the tax for residents who have lived in the state for less than 4 years.
Calculation Example: Phased Mark-to-Market Income deemed realized and recognized:
Tax limit/phase-in cap amount:
The lower amount from these two calculations, $2 million, is added to taxable income. All else being equal (assuming no other taxable income or tax credits/deductions) and assuming a Vermont income tax of $17K + 8.75% of taxable income over $279K, this would result in a state income tax of about $168K. |
Calculation Example: Phased Mark-to-Market for Jeff Bezos If Jeff Bezos paid this type of unrealized capital gains tax on Amazon shares he owns:
The lower amount from these two calculations, $19.849 billion, is added to taxable income. As above, all else being equal and assuming a Vermont income tax of $17K + 8.75% of taxable income over $279K, this would result in a state income tax of about $1.737 billion. |
Withholding Tax on Unrealized Capital Gains
Another policy option is to require extremely wealthy individuals to prepay future realized capital gains taxes through a type of withholding tax (i.e., “pay-as-you-go,” where a portion of estimated tax is sent periodically to the taxing authority before the full amount is due) on unrealized capital gains. This estimated prepayment could be based on the value of unrealized capital gains above a specific exemption threshold, which could be set high enough to not target illiquid millionaires and could also include progressive tax rates based on the amount of unrealized capital gains (Saez & Zucman, 2020). An academic proposal of this withholding tax includes both liquid and illiquid assets (except for retirement accounts) and recommends that the withholding tax rate be one-tenth of the top federal capital gains tax rate (Saez et al., 2021). As with the phased tax above, compared to traditional wealth tax models, the withholding tax model would help to smooth out asset valuation volatility, which is especially important to states, as they are required to enact balanced budgets (Saez et al., 2021).
Valuing Private Businesses/Unlisted Shares
One area of asset valuation that warrants careful consideration is shares of private businesses, which is a major asset class for many of the ultra-wealthy (Saez & Zucman, 2020). In France, the tax administration provides guidelines on how taxpayers can value stocks from unlisted companies (Garbinti et al., 2023). There are many ways that states could consider valuing unlisted shares.
Large Private Businesses. For large private businesses, the value could be based on secondary market valuation, such as by venture capitalists, private equity funds, financial analysts, or recent stock trades (Saez et al., 2021). For wealthy individuals who are unable or unwilling to sell their private shares to cover a tax on unrealized capital gains, a government-run credit program could be created to provide taxpayers with government loans, secured by their illiquid assets, with interest accrued at the Treasury rate and repayment triggered when either the asset becomes liquid or control of the asset is transferred to another party (Saez et al., 2021).
Small Private Businesses. Shares in small private companies could be valued using a straightforward formula based on book value, sales, and profits; for example, Switzerland has successfully used this type of formula (Saez & Zucman, 2020). By utilizing a formula with easily available information, small private businesses would not incur significant administrative costs if one of their owners were subject to an unrealized capital gains tax. Data on small business employee size shows that over 80% of small businesses have zero employees and another 16% have only 1–19 employees, and additional data on business owners reveals that private businesses with more than five employees are owned by families with a median net worth of only $1.25 million and median business assets of $400K. It is clear that relatively few small businesses would need to be valued, and the ultra-wealthy likely have accountants who track basic financial data on their small businesses, which might be needed when selling these businesses or using them as collateral for a loan. Valuation of defined benefit pension plans could also be based on a simple formula that looks at age, tenure, and current salary to approximate accrued benefits (Saez & Zucman, 2020).
Calculation Example: Swiss Private Business Valuation Formula The value of private businesses in Switzerland is calculated as a three-year average of current net asset value (i.e., total assets minus total liabilities) and a three-year average based on a double weighted and capitalized earnings value. This sounds more complicated than it is. The formula is: Business Value = [(Average of 3 Years of Adjusted Net Profits) x 2 + Net Asset Value] x 1/3 Capitalization Rate Let’s suppose that this model is used in the U.S. and a private company had a net asset value of $10 million at the end of 2023 and adjusted net profits of $1 million in 2021, $2 million in 2022, and $3 million in 2023. Let’s also assume a capitalization rate (i.e., expected rate of return) of 8%, which would be determined by statute or regulation. This formula results in a total valuation of $20 million: 2023 Business Value = [(($1M +$2M + $3M)/3) x 2) + $10M] x 1/3 = $20M 0.08 Source: Eckert & Aebi (2020) |
Legislative Examples: Business Valuation
Legislative Examples: Business Valuation
Both a California bill and a Vermont bill use a straightforward business valuation formula of book value plus 7.5 times book profits in a given year. In particular cases, certified appraisal values can be used to determine the worth of private business assets.
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California (2023 CA AB 259)
50308. (c) (3) (D) For purposes of this part, if a valuation is to be calculated by the proxy valuation formula for business entities, that valuation shall be the book value of the business entity according to GAAP plus 7.5 times the book profits of the business entity for the taxable year according to GAAP. However, if the taxpayer can demonstrate with clear and convincing evidence that a valuation calculated via the proxy valuation formula would substantially overstate the value as applied to the facts and circumstances for any taxable year, then the taxpayer can instead submit a certified appraisal of the value of the taxpayer’s ownership interests in the business entity for that year and use that certified appraisal value in place of applying the primary valuation rules of subparagraph (F) or (G).
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(F) For business entities for which the valuation calculated by the proxy valuation formula for business entities is less than fifty million dollars ($50,000,000), the value of the taxpayer’s ownership interests in the business entity will be presumed to be the percentage of the business entity owned by the taxpayer multiplied by the valuation calculated by the proxy valuation formula for business entities.
(G) For business entities for which the valuation calculated by the proxy valuation formula for business entities is fifty million dollars ($50,000,000) or greater, the taxpayer shall submit a certified appraisal of the value of the taxpayer’s ownership interests in the business entity. The value of the taxpayer’s ownership interests in the business entity will then be presumed to be the greater of the following:
(i) The certified appraisal value.
(ii) The percentage of the business entity owned by the taxpayer multiplied by the valuation calculated by the proxy valuation formula for business entities.
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Vermont (2024 VT HB 827)
5604. (c) (3) (D) Except for assets and entities governed by subdivisions (1) and (2) of this subsection (c), assets excluded under subdivision (A) of this subdivision (3), and assets attached to an ODA, for all other interests in any business entities including all equity and other ownership interests, all debt interests, and all other contractual or noncontractual interests, the fair market value of those interests at the end of any tax year shall be presumed to be the sum of the book value of the business entity according to generally accepted accounting principles for the tax year plus a present-value multiplier of 7.5 times the book profits of the business entity for the tax year according to generally accepted accounting principles, with this entire sum then multiplied by the percentage of the business entity owned by the taxpayer as of the end of the tax year. However, if the taxpayer can demonstrate with clear and convincing evidence that such a presumption would substantially overstate the fair market value, the taxpayer may instead submit a certified appraisal and then use the certified appraisal value as the fair market value.
Indirectly Held Assets. Another consideration is how to deal with assets that are held by trusts or other intermediaries. To reduce tax avoidance, experts recommend that intermediary assets that are controlled by or for the benefit of wealthy individuals be included in a wealth tax, but allocated based on different levels of priority so that the impact is on the wealthiest individuals who control the funds and much less on nontaxable charities that use trust funds for programmatic purposes (Saez & Zucman, 2020). For example, the trust would be responsible for any tax liability related to trust assets unless the beneficiaries receive all of its income distributions, in which case the entire trust would be subject to the withholding tax (Saez et al., 2021).
Legislative Example: Assets in a Trust
Legislative Example: Assets in a Trust
A bill in Washington State specifies how to treat the assets of a trust depending on who benefits from or has control over the trust, as well as what happens when intangible assets are transferred to a minor relative.
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Washington (2023 WA HB 1473/SB 5486)
Sec. 3. TAX IMPOSED. […] (4) The tax imposed in this section does not apply to a resident based on that person’s status as a trustee of a trust, unless that person is also a beneficiary of the trust or holds a general power of appointment over the assets of the trust.
(5)(a) If an individual is treated as the owner of any portion of a trust that qualifies as a grantor trust for federal income tax purposes, that individual must be treated as the owner of that property for purposes of the tax imposed in this section to the extent such property includes intangible assets.
(b) A grantor of a trust that does not qualify as a grantor trust for federal income tax purposes must nevertheless be treated as the owner of the intangible assets of the trust for purposes of the tax imposed in this section if the grantor’s transfer of assets to the trust is treated as an incomplete gift under Title 26 U.S.C. Sec. 2511 of the internal revenue code and its accompanying regulations.
(6) Intangible assets transferred after the effective date of this section by a resident to an individual who is a member of the family of the resident and has not attained the age of 18 must be treated as property of the resident for any calendar year before the year in which such individual attains the age of 18.
Unliquidated Tax Reserve Account (ULTRA)
Another option for taxing assets that are difficult to value is to allow wealthy taxpayers to grant the government a “notional equity interest” on the assets in lieu of a tax payment (Galle et al., 2022). This interest would not confer any voting rights and would only be used for future valuation, as the taxing authority would only receive funds after the assets are sold/liquidated. If the value of the assets rises or falls, the government’s eventual tax revenue would also rise or fall, as it is effectively pegged to the stock’s value, not a set dollar amount. If a taxpayer holds on to these assets for several years, they could defer the tax payments by granting additional equity interest to the government. To address concerns that the wealthy will take advantage of this delay in taxation by lobbying for tax code changes instead of paying their fair share, this policy option could be designed in a way that would only allow taxpayers with liquidity challenges (e.g., all of their wealth is in a single private stock) to defer paying a wealth tax on difficult-to-value assets until their private stocks/assets are sold (Galle et al., 2022). The extremely wealthy, who do not face these liquidity issues, could instead be required to prepay a portion of their deferred tax every year (Galle et al., 2022).
Calculation Example: ULTRA “Ownership” For example, for a 2% unrealized capital gains tax on private stock, the taxpayer could instead provide the government with 2% “ownership” of these assets. If the taxpayer holds on to these stocks, they begin the second tax year with 98% ownership of the private stock (since, in the first tax year, they chose to grant the government 2% notional equity interest in lieu of a tax payment), and therefore the government would receive an additional 1.96% equity interest (i.e., 2% of 98%), for a total of 3.96%. |
Legislative Example: ULTRA
Legislative Example: ULTRA
A version of an ULTRA was written into a California bill as a liquidity-based optional unliquidated tax claim agreement (LOUTCA).
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California (2023 CA AB 259)
50310. (a) Liquidity-based Optional Unliquidated Tax Claim Agreements, to be referred to as LOUTCAs, shall be governed by the following rules:
(1) Taxpayers who are specified as liquidity-constrained taxpayers and who have ownership interests in designated highly illiquid assets, such as startup business entities, shall be able to elect to initiate a LOUTCA to be attached to their ownership interests in those designated highly illiquid assets instead of the net value of those ownership interests or the net value of those assets being assessed at the end of a tax year.
(2) Any taxpayer subject to the tax imposed by this part is presumed to not be specified as a liquidity-constrained taxpayer if the taxpayer’s designated highly illiquid assets are less than 80 percent of the taxpayer’s total net worth. The Franchise Tax Board may adopt regulations in regard to substantiating who is a specified liquidity-constrained taxpayer and in regard to what is a designated highly illiquid asset. It is the intent of the Legislature that most taxpayers subject to the tax imposed by this part should not be specified as liquidity-constrained taxpayers and that publicly traded assets and ownership interests conferring control rights in substantially profitable privately held business entities shall not be designated as highly illiquid assets.
(3) To initiate any LOUTCA, a taxpayer shall sign forms to be created by the Franchise Tax Board that shall have the effect of creating a binding contractual agreement between the taxpayer and the state. A LOUTCA shall be legally binding on the taxpayer, and also on the taxpayer’s estate and assigns, until such time as either the taxpayer or the taxpayer’s estate reconciles the LOUTCA so as to fully liquidate the accumulated tax claims and to then pay all tax due on those liquidated tax claims.
Exemptions, Deductions/Credits, and Limits
As with most taxes, a key policy decision is to determine what amount of a taxable asset should be exempted (i.e., the asset threshold) and what specific tax deductions or credits should be allowed.
Exemption Threshold
A national wealth tax in France, for example, included all French residents and potentially all worldwide assets above a €1.3 million threshold (Garbinti et al., 2023). One study found that having a low exemption threshold (e.g., €1 million) created political opportunities for opponents to highlight cases of illiquid millionaires struggling to pay their wealth tax (Piketty et al., 2023). Applying that lesson, a wealth tax proposed by U.S. Sen. Elizabeth Warren had a $50 million threshold and applied a 2% wealth tax rate up to $1 billion in wealth and a 3% tax rate after that (Saez & Zucman, 2020). An academic paper also proposes a $50 million exemption threshold, which would impact the top 0.05% wealthiest families, or about 100,000 households (Saez et al., 2021).
Legislative Examples: Phase-In Cap
Legislative Examples: Phase-In Cap
Another taxation limit introduced in recent state legislation is a “phase-in cap amount” to limit the amount of unrealized net gains subject to taxation. For example, a bill in New York would set a phase-in cap of 25% of net assets above a $1 billion exemption threshold, and a bill in Vermont would set a phase-in cap of 10% of net assets above a $10 million exemption threshold.
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New York (2023 NY SB 1570)
612-a. (b) Subsequent to two thousand twenty-three, resident individual taxpayers with net assets that are worth one billion dollars or more at the end of the last day of any tax year shall recognize gain or loss as if each asset owned by such taxpayer on such date were sold for its fair market value on such date, but with adjustment made for tax paid on gain in previous years. Any resulting net gains from these deemed sales, up to the phase-in cap amount, shall be included in the taxpayer’s income for such taxable year. […]
(c) For each date on which gains or losses are recognized as a result of this section, the phase-in cap amount shall be equal to a quarter of the worth of a taxpayer’s net assets in excess of one billion dollars on such date.
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Vermont (2024 VT HB 827)
5601. (4) “Phase-in cap amount” means an amount equal to 10 percent of the worth of a taxpayer’s net assets in excess of $10,000,000.00 at the end of the day on the last day of an applicable tax year.
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5602. TAXATION OF UNREALIZED GAINS (a) Tax is imposed for each taxable year on resident individuals with net assets worth more than $10,000,000.00 at the end of the day on December 31 of the taxable year. A taxpayer shall be deemed to realize 50 percent of the gain or loss as though each asset owned was sold for fair market value at the end of the day on that date. A proper adjustment shall be made for assets previously subject to taxation under this section in prior years, pursuant to subsection (b) of this section. All other adjustments to the basis of a taxpayer’s assets shall be made prior to a partial deemed sale under this section. Any resulting net gains from a partial deemed sale, up to the phase-in cap amount, after accounting for losses carried forward, shall be recognized and included in the taxpayer’s taxable income for that taxable year.
Deductions and Credits
The withholding model referenced earlier differs from a basic wealth tax, such as the property tax, in that it allows the withholding to be used as a tax credit when financial assets are sold and capital gains are realized (Saez & Zucman, 2020). This tax credit could have a “withholding account” that carries forward until any of the taxpayer’s financial assets are sold and capital gains are realized (Saez et al., 2021). This way, there is no risk of double taxation, as these capital gains are only taxed once.
Similar to the withholding model, the ULTRA policy option would provide that any prepayment of a deferred wealth tax would generate a tax credit that could be applied against a future tax liability from the sale of a difficult-to-value asset (Galle et al., 2022). In order to take into account individual contributions to assets by wealthy individuals, the percentage of the government’s “stake” in assets that increase due to financial contributions could also be added to the tax credit (Galle et al., 2022).
Calculation Example: ULTRA Tax Credit Let’s assume that a wealthy individual has difficulty valuing shares of a private company and signs an ULTRA agreement with the government. If, over time, the government builds up a notional equity interest of 10% of those shares and the wealthy individual buys an additional $50 million in that stock, then $5 million (10% of $50 million) could be applied as a tax credit when the stock is sold. If, soon after, the wealthy individual sells their ownership in this private company for $200 million, then the government would be entitled to $15 million (10% of the $200 million minus the $5 million credit). |
Tax Limit
There are many ways that a tax limit can be designed. For example, the French wealth tax provides a tax ceiling of 75%–85% of net taxable income (Garbinti et al., 2023). The phase-in example mentioned earlier includes an annual tax limit of 10% of the taxpayer’s net assets in excess of $10 million. And an academic proposal for a withholding tax on future capital gains proposes limiting the withholding to 90% of the potential federal capital gains tax, which would be accumulated over a nine-year period (Saez et al., 2021). See below for more on this model.
Decision Tree: Withholding Tax on Unrealized Capital Gains
Withholding Tax Example for Jeff Bezos
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Adjusting the Cost Basis
To ensure that unrealized capital gains are not taxed twice, one policy option is to adjust the cost basis (i.e., the cost used to calculate gains/losses) of these assets based on deemed realized gains or losses. For example, 2024 VT HB 827 would increase the cost basis of assets with deemed realized gains by the amount of gains that are actually recognized, which is the lesser of 50% of total deemed capital gains or the cap amount plus any gains that were offset with the deemed capital losses. This basis increase is proportionally allocated among all assets with deemed capital gains based on their share of total gains. To ensure that deemed capital losses are not taken into account more than once, the bill provides for reducing the basis of these assets by the amount of their recognized deemed capital losses (Gamage, 2024).
Adjusted Cost Basis Example for Jeff Bezos Going back to our example of a phased mark-to-market tax on Jeff Bezos:
The lower amount from these two calculations, $19.849 billion, would again be added to the taxable income and to the cost basis of the Amazon stock shares (for tax year 3). Eventually, all else being equal, the cost basis would become large enough to reduce the deemed and recognized realized gains to below the tax limit. |
Tax Administration
While different state revenue agencies promulgate administrative rules to implement their state’s unique tax code, there may be additional lessons to learn regarding how to design strong reporting requirements and enforcement tools.
Reporting Requirements
In the French tax system, taxpayers were required to report their wealth tax based on January 1st of the reporting year (Garbinti et al., 2023). For example, if a wealthy taxpayer was filing income tax forms in 2023 for income earned in tax year 2022, they would also complete wealth tax forms for assets as of January 1, 2023 (not 2022). The French tax system provided both a regular tax form and a simplified form for individuals without exemptions or deductions, but a recent study found that simplified reporting may lead to more misreporting of wealth (Garbinti et al., 2023).
A mark-to-market unrealized capital gains tax could follow current tax reporting practices, in which financial institutions share information on assets directly with customers/taxpayers and some third-party reports are shared with the IRS (Saez et al., 2021). This would require filing a new tax form and reporting to the state tax administration both the purchase price and the fair market value of financial assets held by the very wealthy, in order to estimate the taxable value of these unrealized capital gains (Saez et al., 2021). IRS Form 8854, which is used to calculate the federal expatriation tax, is an example of a mark-to-market calculation. Bank valuation of financial securities used as collateral for loans made as part of the “buy, borrow, die” loophole could also be reported to the relevant state tax authority.
Legislative Examples: Tax Forms
Legislative Examples: Tax Forms
An Illinois bill would require the state’s department of revenue to create or amend relevant tax forms, and the bill specified asset categories to include in these forms. A California bill with an ULTRA provision included additional reporting requirements that apply even if residents move to another state, as well as requirements placed on a deceased taxpayer’s estate.
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Illinois (2023 IL HB 3039)
(a) The Department of Revenue shall amend or create tax forms as necessary for the reporting of gains by assets. Assets shall be listed with (i) a description of the asset, (ii) the asset category, (iii) the year the asset was acquired, (iv) the adjusted Illinois basis of the asset as of December 31 of the tax year, (v) the fair market value of the asset as of December 31 of the tax year, and (vi) the amount of gain that would be taxable under this Act, unless the Department determines that one or more categories is not appropriate for a particular type of asset.
(b) Asset categories separately listed shall include, but shall not be limited to, the following:
(1) stock held in any publicly traded corporation;
(2) stock held in any private C corporation;
(3) stock held in any S corporation;
(4) interests in any private equity or hedge fund organized as a partnership;
(5) interests in any other partnerships;
(6) interests in any other noncorporate businesses;
(7) bonds and interest bearing savings accounts, cash and deposits;
(8) interests in mutual funds or index funds;
(9) put and call options;
(10) futures contracts;
(11) financial assets held offshore reported on IRS tax form 8938.
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California (2023 CA AB 259)
50310. (a) (4) If a taxpayer has initiated a LOUTCA in any prior year, until that LOUTCA has been reconciled and closed, the taxpayer shall annually complete and file any form or forms that shall be created by the Franchise Tax Board for the purposes of reporting any material transactions made with regard to the LOUTCA. These reporting requirements shall continue even if and after the taxpayer is no longer a resident and shall then be enforced as a legally binding contract with the state. Failure to file these annual forms shall be treated as a breach of contract and shall also be subject to the same penalties as failure to file income tax forms for residents who are required to file income tax forms. Upon the death of any taxpayer who has initiated a LOUTCA that has not been fully reconciled and closed, that taxpayer’s estate and assigns shall be required to reconcile the LOUTCA so as to fully liquidate the accumulated tax claims and to then pay all tax owed on those liquidated tax claims, treating these claims as an unpaid tax liability of the taxpayer owed to the state.
Enforcement Mechanisms
At the most basic level, the potential revenue from a wealth tax is simply: Tax base = total wealth × top wealth share × (1 − evasion rate) (Saez & Zucman, 2020). Minimizing evasion rates is critical to realizing the full benefits of a wealth tax.
The French wealth tax provided that if a wealthy individual is audited and found to be noncompliant with the wealth tax requirements, they may be required to amend their tax returns for up to the last 10 years, depending on the type of noncompliance issue found (Garbinti et al., 2023). A study looking at European wealth taxes found that tax evasion through the use of offshore accounts was a major detriment, along with weak enforcement due to heavy reliance on self-reported assets, and this study recommends the use of a common reporting standard for offshore assets (Piketty et al., 2023).
Legislative Examples: Penalties
Legislative Examples: Penalties
Legislation in Washington State would impose a penalty of either 30% or 50% for understating asset valuations, depending on the level of understatement or misstatement. The bill would also require audits of a percentage of wealthy taxpayers, with the required minimum ramping up from 10% in 2025 to 20% in 2027. Legislation in California would add claims, records, and statements made to comply with the proposed wealth tax’s reporting requirements to the state’s false claims act, which could result in civil action and treble damages for costs that the state incurs to recover penalties or damages when a false or fraudulent claim is made.
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Washington (2023 WA HB 1473/SB 5486)
Sec. 10. SUBSTANTIAL WEALTH TAX VALUATION UNDERSTATEMENT PENALTY IMPOSED. (1) Except as otherwise provided in this section, if any portion of an underpayment of tax due under this chapter is due to a substantial wealth tax valuation understatement, there must be added to the tax an amount equal to:
(a) In the case of any substantial wealth tax valuation understatement that is a gross wealth tax valuation misstatement, 50 percent of the portion of the underpayment due to the valuation understatement; or
(b) In all other cases, 30 percent of the portion of the underpayment due to the valuation understatement.
(2) The penalty imposed under subsection (1) of this section does not apply unless the portion of the underpayment attributable to substantial wealth tax valuation understatements for the calendar year exceeds $5,000.
(3) The penalty imposed in this section is in addition to any other applicable penalties imposed under this chapter or chapter 82.32 RCW on the same tax due, except for the penalty imposed in RCW 82.32.090(7).
(4) For purposes of this section, the following definitions apply:
(a) “Gross wealth tax valuation misstatement” means the fair market value of any financial intangible assets reported on a return required by this chapter is 40 percent or less of the amount determined to be the correct amount of such fair market value.
(b) “Substantial wealth tax valuation understatement” means the fair market value of any financial intangible assets reported on a return required by this chapter is 65 percent or less of the amount determined to be the correct amount of such fair market value.
Sec. 11. ENFORCEMENT. Beginning in calendar year 2025, to the extent that sufficient funds are specifically appropriated for this purpose, the department must initiate audits of at least 10 percent of individuals who are registered with the department to pay the tax imposed in this chapter, increasing to 15 percent in calendar year 2026, and 20 percent in calendar year 2027 and thereafter.
This Washington State bill would also add the following language to the statutory section on tax avoidance:
Sec. 16. RCW 82.32.655 and 2010 1st sp.s. c 23 s 201 are each amended to read as follows:
[...]
(d) Arrangements through which a taxpayer attempts to avoid tax under chapter 84A.--- RCW (the new chapter created in section 21 of this act) through intentional deception, such as by concealing assets or evidence of the location of the taxpayer’s domicile in this state, by transferring assets prior to December 31st when the taxpayer effectively retained control of the assets, or by effectively converting taxable assets into nontaxable assets prior to December 31st when the taxpayer engages in a substantially offsetting transaction. This subsection (3)(d) does not apply to substantial wealth tax valuation understatements subject to the penalty in section 10 of this act.
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California (2023 CA AB 259)
12651. (f) (1) This section shall apply to claims, records, or statements made under Part 27 (commencing with Section 50300) of Division 2 of the Revenue and Taxation Code only if the damages pleaded in the action exceed two hundred thousand dollars ($200,000).
(2) For purposes of this subdivision only, “person” has the same meaning as that term is defined in Section 17007 of the Revenue and Taxation Code.
(3) The Attorney General or prosecuting authority shall consult with the taxing authorities to whom the claim, record, or statement was submitted prior to filing or intervening in any action under this article that is based on the filing of false claims, records, or statements made under the Revenue and Taxation Code.
(4) Notwithstanding Section 19542 of the Revenue and Taxation Code or any other law, the Attorney General or prosecuting authority, but not the qui tam plaintiff, is hereby authorized to obtain otherwise confidential records relating to taxes, fees, surcharges, or other obligations under the Revenue and Taxation Code needed to investigate or prosecute suspected violations of this subdivision from state and local taxing and other governmental authorities in possession of such information and records, and such authorities are hereby authorized to make those disclosures. The taxing and other governmental authorities shall not provide federal tax information without authorization from the Internal Revenue Service.
(5) Any information received pursuant to paragraphs (3) and (4) shall be kept confidential except as necessary to investigate and prosecute suspected violations of this subdivision.
(6) This subdivision does not and shall not be construed to have retroactive application to any claims, records, or statements made under the Revenue and Taxation Code before January 1, 2024.
Withholding Model Enforcement
The unrealized capital gains tax withholding model could potentially reduce the risk of undervaluing financial assets, as this valuation could provide a future tax credit (Saez & Zucman, 2020). Enforcement could be supported by requiring financial institutions and private businesses to disclose relevant purchase prices and market value estimates, as well as valuing financial assets separately from business operations and assets held indirectly through private businesses, which could limit the risk of tax avoidance through shell corporations (Saez et al., 2021).
Another major benefit of this model for state tax collection is that it reduces “wealth flight,” which is more likely after retirement, as wealthy individuals would not be able to avoid paying taxes on their unrealized capital gains during “productive years” and then retire to a state with no income tax to avoid paying taxes on realized capital gains (Saez et al., 2021). Additionally, the tax withholding allowance would presumably only be useful for individuals who realize their capital gains in a state with a similar withholding tax system (Saez et al., 2021). This may mean that an interstate agreement or compact will become an important tool to avoid double taxation and to support cross-state retirement/establishment of residency.
Note on Wealth Flight “It is possible that the tax could encourage successful entrepreneurs to leave early to avoid the tax. For example, a [California] billionaire might decide to move to Florida now to avoid paying the withholding annual 1% tax on his accumulated gains (instead of moving to Florida later before realizing capital gains). However, it is difficult to move while you are still running a business (and moving the headquarters of the business is much more difficult). Therefore, mobility risk is most important for retired billionaires.” (Saez et al., 2021) An analysis by the Center on Budget and Policy Priorities on interstate migration data and academic studies found the following:
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Conclusion
A state tax on unrealized capital gains is a relatively new proposal in the U.S., but not globally, and academic experts have analyzed the strengths and weaknesses of various wealth tax models and developed innovative mechanisms to address some of the greatest challenges to practical implementation and political viability. These lessons can provide state policymakers with a starting point for policy design, but as “laboratories of democracy,” state legislatures should prioritize both collaborating with their communities and fostering a spirit of experimenting with, evaluating, and improving their state’s tax revenue laws.
The State Innovation Exchange (SiX) exists to advance a bold, people-centered policy vision in every state in this nation by helping vision-aligned state legislators succeed after they are elected. If you are working to strengthen our democracy, fight for working families, advance reproductive freedom, defend civil rights and liberties, or protect the environment, reach out to helpdesk@stateinnovation.org to learn more about SiX’s tailored policy, communications, and strategy support and how to join this network of like-minded state legislators from across the country.
Academic References
- Addo, F. R. & Darity, W. A. (2021). Disparate recoveries: Wealth, race, and the working class after the great recession. The Annals of the American Academy of Political and Social Science, 695(1), 173–192. https://doi.org/10.1177/00027162211028822
- Chamberlain, E. (2020). Wealth taxes in foreign countries. U.K. Wealth Tax Commission Background Paper, No. 130. https://www.wealthandpolicy.com/wp/BP130_Countries_Table.pdf
- Eckert, J. B. & Aebi, L. (2020). Wealth taxation in Switzerland. U.K. Wealth Tax Commission Background Paper, No. 133. https://www.wealthandpolicy.com/wp/BP133_Countries_Switzerland.pdf
- Galle, B. D., Gamage, D., & Shanske, D. (2022). Solving the valuation challenge: the ULTRA method for taxing extreme wealth. Duke Law Journal, 72, 1257. https://ssrn.com/abstract=4036716 or http://dx.doi.org/10.2139/ssrn.4036716
- Galle, B. D., Gamage, D., & Shanske, D. (in press). Money moves: Taxing the wealthy at the state level. California Law Review. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4722043
- Gamage, D. (2024). Testimony on Vermont H. 827: An act relating to applying personal income tax to unrealized gains. University of Missouri School of Law Legal Studies Research Paper, No. 2024-02. https://ssrn.com/abstract=4726478
- Gamage, D. & Shanske, D. (2022). Phased Mark-to-Market for Billionaire Income Tax Reforms. Indiana University Legal Studies Research Paper, 492. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4268368
- Garbinti, B., Goupille-Lebret, J., Munoz, M., Stantcheva, S., & Zucman, G. (2023). Tax design, information, and elasticities: Evidence from the French wealth tax. NBER Working Paper Series. https://gabriel-zucman.eu/files/GGMSZ2023.pdf
- McCaffery, E. J. (2019). The death of the income tax (or, the rise of America’s universal wage tax). USC Law Legal Studies Paper, No. 18-26. http://dx.doi.org/10.2139/ssrn.3242314
- Piketty, T., Saez, E., & Zucman, G. (2023). Rethinking capital and wealth taxation. Oxford Review of Economic Policy. https://eml.berkeley.edu/~saez/PikettySaezZucman2022RKTrevised.pdf
- Saez, E., Yagan, D., & Zucman, G. (2021). Capital gains withholding. https://gabriel-zucman.eu/files/SYZ2021.pdf
- Saez, E. & Zucman, G. (2020). Progressive wealth taxation. Brookings Papers on Economic Activity, Fall. https://www.brookings.edu/wp-content/uploads/2020/10/Saez-Zuchman-final-draft.pdf
Celebrate Black Maternal Health Week 2024 with SiX
Celebrate Black Maternal Health Week 2024 with SiX
Black legislators are spearheading the advancement of Black maternal health outcomes in their states. This year, Black Maternal Health Week (BMHW) will take place April 11-17th, 2023 and the theme is Our Bodies STILL Belong to Us: Reproductive Justice NOW!
Founded by Black Mamas Matter Alliance, BMHW was created to raise awareness, inspire activism and build community support for the issues and policies impacting the health and rights of Black mothers. This week centers the work, values, and traditions of the reproductive and birth justice movements.
In honor of #BMHW24, SiX is uplifting state legislators across the country who are committed to supporting Black maternal health.
Show your support as a legislator in the SiX network leading the fight to improve Black maternal health outcomes and please share the following graphic and messages on social media.
Sample tweets:
Message 1: I’m taking part in this year’s #BlackMaternalHealthWeek with @Stateinnovation & @blkmamasmatter! Come engage in unforgettable activities & conversations aimed at shifting the state of Black Maternal Health in the U.S. Learn more: blackmamasmatter.org/bmhw #BlackMamasMatter #BMHW24
Message 2: @BlkMamasMatter advocates for the advancement and investment in practices and solutions that incorporate the true needs, wants and desires of Black women and birthing people! Throughout the week, I’ll be sharing how I am uplifting & empowering Black Mamas through policy. #BMHW24
Message 3: It’s #BlackMaternalHealthWeek and I'm joining @Stateinnovation in centering Black women’s scholarship, maternity care work, and advocacy. #BlackMamasMatter #BMHW24
Message 4: Black women are 3 times more likely to die from preventable pregnancy-related causes than white women. This #BlackMaternalHealthWeek, let's raise awareness and center Black Mamas’ experiences to find solutions! #BMHW24 @Stateinnovation
*Official toolkit from Black Mamas Matter Alliance*
How States Can Stop the Corporate Campaign To Roll Back Child Labor Protections
How States Can Stop the Corporate Campaign To Roll Back Child Labor Protections
Executive Summary
The enactment of the Fair Labor Standards Act (FLSA) in 1938 marked the passage of the first federal standards for child labor in the U.S., prohibiting the long hours, dangerous jobs, and abusive practices that many children suffered at the time. Now, nearly nine decades later, state legislatures, spurred by political operatives working on behalf of deep-pocketed corporate interests, are the epicenters of a national campaign to turn the clock back on child labor protections.
Since 2021, at least 61 bills to roll back child labor protections have been introduced in 29 states, and at least 17 bills have been enacted in 13 states. The proposals, some of which would directly conflict with federal standards, include provisions that would repeal work permit requirements, extend work hours, legalize employment in hazardous occupations, allow children to be paid less than the state minimum wage, lower the minimum age for alcohol service, and preempt the passage of stricter child labor protections at the local level. Without adequate federal or state enforcement capacity, the recent onslaught of legislative activity to bring back 19th-century child labor standards promises to intensify a growing national crisis of child labor violations, especially among migrant youth.
State lawmakers and advocates have the power to organize and push back against these coordinated attacks and to put forward a different vision for the future where labor policies safeguard the safety, well-being, and education of children. This publication is intended to serve as a resource to legislators and state advocates in resisting efforts to deregulate child labor protections. It offers policy options that can strengthen labor protections for young workers. A stronger framework for child labor standards at the state level should consider the following:
- Enhancing child labor protections. States can and should establish labor protections that go above and beyond federal standards for young workers. Examples include time and hour restrictions for 16- and 17-year-olds, prohibitions on hazardous occupations, rest or meal break requirements, work permit requirements, repealing youth subminimum wage laws, and strengthening protections for children in agricultural work.
- Enhancing enforcement and penalties. States should adopt an enforcement strategy that maintains a credible ability to enforce against violations and includes a penalty regime that provides effective deterrence.
- State lawmakers can establish strong civil and criminal penalties, including minimum penalties and damages payable to workers, in addition to enhanced penalties for egregious violations.
- Legislators can also enhance enforcement by establishing anti-retaliation protections, extending the statute of limitations on violations, expanding agency enforcement powers, and boosting enforcement capacity, particularly by adding language and cultural capacity to appropriately support migrant children.
- State legislators can consider strategies that support enforcement on behalf of the state, like community enforcement programs, private attorneys general laws that authorize aggrieved employees to bring enforcement actions on behalf of the state, or dedicated grant funding to local prosecutors to support labor enforcement actions.
- Lawmakers can ensure that children have appropriate legal remedies when they are harmed by child labor violations by ensuring that injured or killed workers are not limited to workers’ compensation as an exclusive remedy and by establishing a private right of action.
- Extend liability to all entities that profit from child labor. State lawmakers should modernize child labor protections to account for 21st-century business structures that often allow the most powerful entities to evade accountability. Examples include laws that hold lead corporations responsible for violations committed within their supply chains and laws that establish joint liability for franchisors and franchisees.
- Establish public procurement compliance requirements. States can set a standard for strict compliance with child labor protections through the procurement process by requiring contractors to disclose child labor violations and maintaining compliance with child labor protections as a condition for eligibility for public contracts.
- Support education, outreach, and service coordination efforts. Legislators can also enable improved enforcement outcomes by supporting education and outreach efforts that ensure that children and their families are adequately informed of their rights under the law and by facilitating coordination among labor officials, public education systems, social services, and immigrant legal services to ensure that investigations of violations do not leave families without access to material and legal support.
The scheme to deregulate child labor state by state is inseparable from attacks on workers’ rights, safety net programs that help families get back on their feet during hard times, the right to an honest and quality education, a fair tax system where wealthy corporations pay what they owe, and our freedom to vote and our right to fair representation. Altogether, these conjoined efforts—driven by insatiable corporate greed and bolstered by outsized elite influence over our democracy—paint a bleak future of an endless race to the bottom for cheap labor, enshrined by the exploitation of children at the expense of their health, safety, and education.
Introduction
In recent years, state legislatures have been the focus of a national operation to repeal laws that protect young people’s health, safety, and educational rights. The campaign to drag labor protections back in time to the 19th century is part of a sweeping, multi-issue effort to further concentrate corporate power, undermine worker rights, and dismantle government regulation, all while cementing wealth inequality by stratifying access to public education and tearing down anti-poverty programs. Since 2021, at least 61 bills to weaken child labor protections have been introduced across 29 states, including 17 bills that have been enacted in 13 states.
The ultimate intent of the corporate lobby is clear: to pave a path to national deregulation of child labor, one state at a time. State lawmakers have the power to put a stop to the plot to build an economy that allows businesses to profit on the backs of children, even in the most dangerous jobs. This publication is intended to serve as a resource to legislators and advocates in responding to the ongoing efforts in state capitols to deregulate child labor. In addition to examining the industry-backed actors behind the corporate conspiracy to roll back child labor protections, the publication outlines the types of regressive legislation that states have considered and passed in recent years and offers potential policy options that legislators may consider to further strengthen state protections for young workers.
History Repeats Itself: A Look Behind the Curtain of the Campaign To Roll Back Child Labor Protections
In the years following the proposal of a constitutional amendment authorizing Congress to regulate child labor in 1924, a new organization called the Farmers’ States Rights League (FSRL) distributed over a quarter-million pieces of literature opposing the amendment, spreading false claims that children would be prevented from doing chores around the home and family farm. The propaganda spread through half-page advertisements in small-town newspapers, leaving readers with the misguided impression that the campaign was funded organically by a group of farmers who came together in opposition to the amendment.
In reality, the FSRL was operated by David Clark, a frontman for wealthy Southern textile factory bosses—an industry that thrived on child labor—to create the facade of public resistance to the amendment in rural America. Clark, a virulent white supremacist who frequently railed against integration as the publisher of the influential Southern Textile Bulletin, was also the mastermind behind a litigation strategy to stonewall new child labor protections. His efforts, which included selecting a friendly federal judge and cajoling young cotton mill workers to serve as plaintiffs in lawsuits he paid for, resulted in the U.S. Supreme Court striking down two newly enacted federal child labor protections. One of the plaintiffs handpicked by Clark, when interviewed by a reporter years later, reflected: “I’d been a lot better off if they hadn’t won it. Look at me! A hundred and five pounds, a grown man and no education.”
While the proposed amendment was never ratified, Congress eventually enacted the Fair Labor Standards Act (FLSA) in 1938, prohibiting children from being employed in certain types of hazardous work, establishing a minimum age of 16 for most types of work, and limiting the number of hours and the time of day that children are allowed to work to protect school attendance. Nearly a century later, a different set of actors, funded by the newest generation of billionaire industrialist barons, are playing the same cast of characters in another astroturfing production to fabricate the illusion of widespread support for policies that only serve to line the pockets of the wealthy through increasingly dangerous child labor.
Industry Fronts: Agribusiness, the Foundation for Government Accountability, and the Opportunity Solutions Project
Agricultural industry groups continue to be outspoken proponents of weakening child labor protections. In the same model as the FSRL, they point to these protections as being burdensome for family farmers when, in truth, these groups represent multinational agribusiness corporations. Groups opposing a proposed federal rule to increase child protections in the FLSA in 2011, for example, included some of the biggest actors in the industry, such as pesticide trade group CropLife America, the National Cotton Council, and the American Farm Bureau Federation (AFBF). The AFBF, in particular, was founded in 1919 as a contemporary of the FSRL but has remained a powerful lobby group in the century since—calling itself “the voice of agriculture” while representing large agribusiness interests. In addition to advocating for weaker child labor protections, the AFBF supported the repeal of both the Voting Rights Act of 1965 and the Affordable Care Act while consistently pressing for policies that harm the independent family farmers it claims to represent.
Other proponents of child labor rollbacks in statehouses across the country reflect a similar array of lobbyists and trade associations for other businesses and industries that stand to benefit most from child labor, including the restaurant, hospitality, and retail industries. During a hearing on a bill to repeal work permits in Arkansas, the legislative sponsor acknowledged that the legislation came from a Florida-based organization called the Foundation for Government Accountability (FGA). At the same time, emails obtained by reporters revealed that similar bills were sent by FGA lobbyists to Florida and Missouri lawmakers.
Before the organization turned its attention to making it easier for businesses to exploit child labor in recent years, the FGA spent over a decade parachuting into statehouses on behalf of corporate interests—in the past seven years, the FGA and its advocacy arm, the Opportunity Solutions Project (OSP), have deployed 130 lobbyists into 29 state capitols. The group’s parallel efforts to gut public assistance programs (which primarily serve children experiencing poverty and their families), push the long-discredited idea of work requirements for safety net eligibility, and weaken state unemployment benefits illustrate a clear agenda: to ensure that low-wage workers are forced to accept poverty wages or abusive working conditions. More recently, to dilute the political power of voters and lock states in minority rule, the FGA has also waged attacks on our freedom to vote and direct democracy.
Reflecting on its work during the 2021 legislative session in states across the country, the FGA boasted in its annual report that thanks to the expansion of its “Super State strategy, which involves doubling down in key states to drive national change with big reforms,” Arkansas legislators enacted 48 “FGA reforms,” while Florida had implemented 26 of the organization’s solutions. Just two years later, lawmakers in Arkansas and Florida, in addition to two of the newest FGA Super States, Iowa and Wisconsin, passed bills to weaken child labor protections.
The FGA and OSP are funded by a number of ultra-wealthy industrialists who have funneled billions into a vast network of organizations to do the bidding of large corporations and conservative extremists. Some known funders of the FGA and OSP are also behind other industry investments to capture judicial and legislative power:
- Leonard Leo, through the 85 Fund (formerly known as the Judicial Education Project), is best known as the architect of the Federalist Society’s multi-decade project to pipeline conservative jurists from law school to federal judgeships as high as the U.S. Supreme Court, with the goal of building, from the bottom up, a judicial branch friendly to corporations and conservative extremists. Leo, who recently took control of a new conservative advocacy organization that received a record-breaking $1.6 billion donation, is also known for brokering intimate face time between Supreme Court justices and wealthy donors—with millions in financial interest in cases pending before the court—during lavish fishing trips and exclusive donor retreats.
- David and Charles Koch, through DonorsTrust, are the billionaire oil tycoons behind two state-based networks, Americans for Prosperity (AFP) and State Policy Network (SPN), that provide the appearance of local support for policies generated by some of the country’s largest corporations. Together, AFP and SPN have worked in tandem with the American Legislative Exchange Council (ALEC) to drive an extremist agenda in states that enables the elite to amass even more wealth by evading their fair share of taxes, privatizing critical government institutions, exploiting workers and destroying their right to form a union, shredding the social safety net, pushing hardline immigration policies that drive a permanent underclass of workers into a shadow economy, and allowing for unfettered extraction of natural resources. In addition to driving a corporate agenda in statehouses, Koch-funded organizations have also led efforts to maintain indefinite control of state legislatures through voter suppression and partisan gerrymandering strategies.
The similarities between the tactics of modern pro-child labor groups and their forebears are striking: front organizations are financed by a wealthy network of elites to create the pretense of citizen-driven campaigns for policies that make benefactors even more profitable in their industries. When paired with the ongoing crusade to push our democracy, state by state, into crisis, policies designed to enact economic oppression on the most vulnerable workers promise to ensure that the power to hoard wealth and opportunity remains a feature of our nation’s laws for generations to come.
Federal and State Enforcement Capacity is Insufficient Amidst Increased Violations and Conflicting State Laws
The Supremacy Clause of the Constitution provides that federal law takes supremacy over conflicting state laws. While states may enact laws that provide legal protections above federal law, they may not lower the “floor” set by federal law. State legislatures have a long tradition of establishing and enforcing higher labor standards for their residents, including establishing some of the country’s first child labor protections a century before the passage of the FLSA.
States that roll back state child labor standards are actively diminishing their important, long-standing roles in enforcing child labor protections, leaving more and more of the enforcement burden to an already short-staffed federal Department of Labor (DOL) at a time when employer violations are sharply increasing. Weakening state standards signals to unscrupulous employers that child labor violations are less likely than ever to be investigated in a certain state while creating new confusion, even for well-intentioned employers, about what is and is not legal, increasing the likelihood of additional violations.
During the 2023 legislative session, federal DOL officials responded to a request from Iowa lawmakers regarding a bill (2023 IA SF 542), which has since been enacted into law, to confirm that several provisions were inconsistent with federal law. The DOL more recently alerted employers that they remain legally obligated to comply with federal child labor protections rather than newly enacted and weaker state laws, reminding employers that “[w]here a state child labor law is less restrictive than the federal law, the federal law applies. Where a state child labor law is more restrictive than the federal law, the state law applies.”
Despite the legal impotence of some provisions contained in new state child labor laws, they are deliberately intended to introduce confusion to the existing regulatory framework, take advantage of a vastly under-resourced and understaffed federal labor enforcement agency, and heighten conflicts between state and federal standards to build a case for lowering standards nationwide. The ultimate goal, as the FGA outlined in a recent report, is to “open the door to federal regulatory reform” by getting “enough states to successfully implement a reform.”
In response to an 88% increase in child labor violations since 2019, federal officials have announced new enhanced enforcement efforts and provided additional guidance to local Wage and Hour Division (WHD) offices to ensure full utilization of the agency’s enforcement authority. Still, the WHD recently reported that it lost 12% of its staff between 2010 and 2019 due to its funding remaining flat. In 2019, WHD investigators were responsible for twice as many workers as they were four decades ago, while compliance officers with the Occupational Safety and Health Administration (OSHA) were responsible for three times as many workers over the same time period.
The Realities of the Child Labor Catastrophe
Proponents of weakening child labor protections frequently trot out feel-good stories suggesting that the rollbacks will open opportunities for teenagers working at the local movie theater or grocery store to save up for a prom dress when, in reality, these types of jobs are already fully legal options for teens as young as 14 in all states. Deregulation is instead aimed at stripping long-standing safety and scheduling standards that protect the health and education of children. Removing these guardrails will have the most dire, life-threatening consequences for children who are working to survive in some of the most dangerous and hidden jobs in our economy. This is made all the more urgent by a recent increase in unaccompanied migrant children driven from their home countries by economic desperation. State legislatures are the most important stopgap today for preventing the continued abuse, serious injury, and death of children in the workplace.
Compounded by violence and the disastrous effects of climate change, the economic fallout from the pandemic pushed many in Central America into a severe economic crisis. Many families facing extreme hunger and poverty had little choice but to send their children to the U.S. through a narrow opening in an otherwise broken immigration system that, until recently, closed the southern border to unauthorized arrivals and asylum seekers, except for children.
Nearly 350,000 unaccompanied children were released by federal officials in a three-year period between 2020 and 2023—almost a 180% increase from the previous three years. Whereas the majority of unaccompanied minors in years past were primarily released to parents already living in the country, today, only one-third are sponsored by parents, with the remainder being sent to relatives, acquaintances, or strangers. Unaccompanied children are held temporarily at shelters under the care of the U.S. Department of Health and Human Services (HHS) while caseworkers vet sponsors to identify red flags for potential trafficking, such as sponsors that have claimed responsibility for dozens of unrelated children.
About one-third of unaccompanied children who are identified as high-risk continue to receive case management services after release. In most instances, children are released to sponsors with the number of a national hotline and receive a phone call from federal officials within a month of release. In 2022, HHS reported not being able to contact one-third of minors in the month after their release to sponsors, while trafficking reports to the national hotline have increased by 1,300% in just five years.
Child Labor Violations Are Widespread and Largely Unchecked
The stories gathered from interviews with migrant children themselves, as well as the caseworkers, teachers, and community members around them, all bear strikingly repetitive refrains. Upon arriving in the country alone and without work permits, unaccompanied migrant children, often saddled with debt from their journey and with the obligation to support families back home, inevitably end up filling some of the most undesirable jobs that are often outsourced and persistently vacant due to the refusal of corporations to pay fair wages. These children frequently end up dropping out of school or never enrolling at all.
Though federal law prohibits children from being employed in many of these roles, employers frequently look the other way, as was in the case of a 13-year-old worker who presented documents that identified them as a 30-year-old. Even when multimillion-dollar corporations are caught in a federal investigation, the maximum civil penalty for child labor violations—less than 1% of the penalty for insider trading—is trivial to those corporations when balanced against the profits generated by ignoring labor protections. Some of the most egregious violations have been at worksites that are within the supply chain of major household brands like Tyson, Hyundai, and General Mills, which are insulated from liability by layers of subcontractors and third-party agencies.
Over and over, reporters and federal investigators have laid bare the widespread nature of child labor violations in today’s economy. Each story below, alongside many more, shares similar themes of exploitation and willful ignorance by employers, who often face little to no accountability, even in cases involving serious injury or death:
- In rural Virginia, a 14-year-old who would finish his overnight shift in a Perdue chicken slaughterhouse 20 minutes before getting on the bus to school was maimed when a conveyor belt caught his arm. Without full function restored to his arm, which still requires at least three additional surgeries, he has no choice but to focus on school—a rare opportunity for unaccompanied migrant children—even as interest accrues on the debt that his family took on to send him to his adult cousin in Virginia. When notified of the maiming incident, OSHA officials handed the investigation to officials in Virginia, who permitted the company to complete a “self-inspection,” resulting in no citations for the company and no reference to the worker’s age.
- Reporters recently interviewed more than 100 child roofers working in nearly two dozen states, painting a bleak picture of an industry that relies on children as young as 10 to fill a workforce shortage. The stories are nauseating: a 15-year-old who fell to his death in Alabama with a crew of nine people and only six harnesses; a 15-year-old in Florida who slipped and burned his body when he fell into a vat of tar; a 17-year-old in Louisiana who was electrocuted to death while operating a forklift for the first time; and Antoni, a 15-year-old who fell 30 feet onto concrete from the roof of a South Carolina beach house. The sheer asymmetry between the deadly risks that children take on and the consequences that their employers face is breathtaking—of the three deaths referenced in the article, none has resulted in any child labor fines. As for Antoni, who woke up from a three-month coma and was unable to access rehabilitation services to address memory loss and mobility issues without health insurance, three tiers of roofing contractors each contend the other is liable for workers’ compensation, and only one has been fined $500 by state labor investigators.
- A 2022 DOL investigation found at least seven underage workers, including two brothers aged 13 and 15, illegally employed by a Hyundai manufacturer in Alabama through a third-party staffing agency. The brothers, who were also living in a house owned by the president of the staffing agency, reported that one of the intermediaries that recruited them also led them to believe that the entity had the power to deport them. The manufacturer was fined just $30,000; Hyundai was shielded from legal liability by a complex web of suppliers and staffing agencies and is set to receive $2.1 billion in state and local tax breaks and incentives in Georgia.
- A massive federal DOL investigation found at least 102 teens working in violation of federal law across 13 facilities in eight states for Packers Sanitation Services Inc. (PSSI), a contractor that describes itself as the leading sanitation company for meatpacking plants. The investigators estimated there were at least five times as many children employed illegally based on observations. According to court records, the children handled high-pressure hoses, scalding water, industrial solutions that caused chemical burns, and power-driven machines like 190-pound saws. Meanwhile, PSSI, which is owned by Blackstone, the world’s largest private equity firm controlling over $1 trillion in wealth, paid a $1.5 million civil fine, or 1% of the company’s cash on hand, and faces no criminal charges.
- At one Southern California poultry plant, federal investigators found children as young as 14 deboning chickens and operating forklifts outside of allowable work hours. The investigation also revealed that the processor, which supplies poultry to brands like SYSCO Corp. and Kroger, committed wage theft violations by paying workers less than minimum wage and refusing to pay overtime wages while retaliating against workers who cooperated with the investigation. In total, the poultry processor was ordered to pay $3.5 million in back wages and damages to workers, in addition to over $201,000 in civil penalties. The owner of the plant was recently the subject of an investigation by state labor officials that resulted in a $1.47 million settlement, including over $900,000 in wages stolen from 300 workers.
- Federal regulators at the WHD announced an investigation of three McDonald’s franchisees that identified 305 children working in violation of child labor laws—including two 10-year-olds who worked as late as 2 a.m. at a Louisville restaurant. In total, the franchisees were assessed over $212,000 in civil penalties for violations and recovered nearly $15,000 in back wages and damages from one franchisee who failed to pay overtime wages. Since 2021, McDonald’s franchisees have been assessed over $577,000 in civil penalties for violations involving 825 minors. Franchise agreements with brands like McDonald’s are often vague when it comes to compliance with labor laws, to limit the brand’s liability exposure.
- A recent OSHA investigation concluded that Mar-Jac Poultry, a Mississippi poultry processing plant, “disregarded safety standards,” resulting in a fatal incident where a 16-year-old was pulled into a machine that he was sanitizing in July of 2023—an occupation prohibited under federal child labor laws. Mar-Jac Poultry was cited with 17 safety violations and fined $212,646; the company is still in the process of contesting a penalty of $27,306 from another fatal incident in 2021. A nonprofit that owns a three-quarters stake in the parent company of the poultry processor, Mar-Jac Holdings, recently reported that its ownership stake in the holding company was equal to over $235 million in assets in 2022.
On its own, the idea of allowing children to work full-time or on graveyard shifts while attending school, to operate dangerous industrial equipment sharp enough to butcher cattle, to work in a bar at the age of 14, to toil in fields while inhaling toxic pesticides at 12, or to handle caustic cleaning solutions while wearing protective gear several sizes too large for less than minimum wage and without oversight is shocking and dangerous. But when taken together with the other priorities of the shadowy network of industry-funded groups that have cloaked their campaign to deregulate child labor as simply a matter of cutting “red tape,” the effort presents an existential threat to the future that most of us envision for our children.
Given the improbability of federal action on child labor, even in the face of rising violations, new conflicting state laws, and lack of federal enforcement capacity, state lawmakers have a central role to play in protecting the health and safety of children in the workplace. In addition to fighting back against continued child labor rollbacks, legislators can strengthen child labor standards and boost enforcement capacity at the state level.
The Campaign To Weaken Child Labor Protections
Since 2021, at least 61 bills to weaken child labor protections have been introduced across 29 states:
- 17 bills were enacted in 13 states—Alabama, Arkansas, Illinois, Iowa, Kentucky, Michigan, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Tennessee, and West Virginia. Two additional bills were enacted in Michigan and Wisconsin but were vetoed by the governor in each state.
- 29 bills (and counting) are currently pending in 19 states—Alabama, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, and Wisconsin.
Recent legislation to weaken protections for children in the workforce has generally included some combination of the following provisions.
- Eliminating employment certification requirements. In most states, minors of certain ages must be issued work certificates, sometimes referred to as work permits, in order to be employed. Employment certificates, issued by either state labor officials or school officials, typically document the minor’s work and proposed schedule, affirm parental consent, and verify the child’s age. Many recent bills include proposals to eliminate work permits, bypassing parents while also eliminating documentation that can be used in investigations of potential violations and that serves as notice to children, families, and employers of state child labor laws.
- Extending work hours. Federal law limits the times of day and number of hours that 14- and 15-year-olds may work: outside of school hours, no more than 3 hours on a school day, no more than 8 hours on a non-school day, no more than 18 hours during a week when school is in session, no more than 40 hours during a week when school is not in session, and between 7 a.m. and 7 p.m. (or 7 a.m. to 9 p.m. between June 1 and Labor Day). Some states additionally have more restrictive limits on the number of hours or times of day that children are allowed to work, including guidelines for the employment of 16- and 17-year-olds enrolled in school. Several states are contemplating changes to their laws that would increase the number of hours that children are permitted to work on a daily or weekly basis or allow children to work later on school nights—even in violation of federal law, in the case of at least one bill (2023 IA SF 542) passed in Iowa.
- Expanding types of permissible hazardous employment. Under federal law, the Secretary of Labor is authorized to identify jobs that 14- and 15-year-olds are permitted to do. Any job not expressly identified by the Secretary of Labor is prohibited, and the Secretary of Labor additionally identifies a set of jobs that are expressly prohibited for 14- and 15-year-olds. Federal law additionally prohibits the employment of children under age 18 in occupations identified by the Secretary of Labor to be especially hazardous based on injury and fatality data, which currently includes 17 occupations. In violation of these standards, some recent bills proposed by state legislators would authorize employers to hire children in hazardous industries like construction (2023 MN SF 375/HF 260) or to operate power-driven industrial machinery (2022 IA SF 2190).
- Establishing a subminimum wage. Federal law allows employers to pay young workers and students subminimum wages and excludes occupations often held by youth. Some states have considered bills to establish a subminimum wage for workers under a certain age, below the minimum wage required by federal or state law.
- Lowering alcohol service age. The minimum age to serve alcohol in most states is at least 18 years, but in recent years, pushed by industry lobbyists, several states have enacted or considered bills to lower the minimum age to serve alcohol, with one proposal in Wisconsin (2023 WI AB 286) contemplating a minimum age of 14.
- Weakening protections for homeschooled children. State laws vary regarding homeschool accountability and oversight. In some instances, homeschooling parents are not required to monitor their child’s academic progress or record it in any way. State deregulation of child labor laws may include further loosening of homeschool oversight, or take advantage of already weak regulations, to make it completely legal for a child’s education to be effectively abandoned. One proposal in Florida (2024 FL HB 49) explicitly allows homeschooled children to work during school hours.
- Preventing local governments from passing stronger child labor protections. Local communities should have the power to develop policies that reflect the values and needs of the people living there. Some states are also considering child labor legislation that would block local policies that strengthen child labor protections above a state standard, expanding a longer-standing and troubling pattern of state interference with local governments’ ability to strengthen labor standards.
See Table 1 for a summary of legislation to weaken child labor protections that have been considered since 2021.
Strategies for Organizing Against the Rollback of Child Labor Protections
In organizing against the campaign to deregulate child labor, state legislators should consider the following strategies:
- Center people. The people most impacted by these proposals should be the center of our work. Organize with community groups, parents, and children impacted by these laws. Worker centers, farmworker associations, student groups, and labor unions are valuable partners in public education, media engagement, legislative strategy, and coalition-building.
- Build coalitions. It is important to partner with advocacy on the ground. In addition to worker centers, farmworker associations, student groups, and labor unions, consider public educators and state public education advocates, faith organizations, and anti-poverty organizations as partners. Small businesses and responsible employers (for example, unionized construction contractors who take pride in maintaining high standards for safety and training) can also be key allies.
- Name opponents. Effective campaigns have a clearly identified and tangible opponent. Name who is financing these campaigns, as well as their financial contributions to lobbying and elections. This includes the FGA and their key financier billionaire Dick Uihlein, as well as the industry trade associations supporting these bills such as the state Chamber of Commerce, state Retail Federation and Restaurant Association, and the brand-sensitive corporations that make up their membership.
- Paint the big picture. Be clear about who is funding this campaign, the history behind this effort, and the interconnectedness between efforts to privatize public education while simultaneously rolling back child labor protections. These laws are about denying young people the freedom to decide their futures in exchange for exorbitant corporate profits.
- Use research and data. This report highlights research on the families most impacted by these laws, the deadly dangers associated with child labor, and the impact rolling back child labor has on overall worker wages, benefits, and safety. It is also important to understand the current exemptions in your state law, as well as federal law, in the specific industries the bill impacts. Gathering data on youth employment, high school completion, injury and fatality rates for young workers, and federal and state violations of child labor laws can also help to illustrate the realities of young workers in the economy. This helps debunk myths pushed by proponents, such as that these bills are simply about young people learning new skills or that they align with and do not violate federal law.
- Engage with unlikely allies. As noted, industry trade associations such as the Chamber of Commerce and Retail Federation are generally in support of these bills. However, individual companies may oppose them and can be invited in as allies in this effort. There may also be a need for public pressure campaigns to secure opposition from such unlikely allies.
- Engage with the media in coalition. Engaging the media on these bills in collaboration with partner organizations and coalitions is an important tactic to educate and organize the public. This includes traditional and nontraditional media, as well as non-English-speaking outlets.
- Learn from peers in other states. The campaign to roll back child labor protections is a national campaign rooted in the states; it is important that we don’t operate in state silos but instead learn from peers across the country facing the same legislation. Tools like amendments, questions for the bill sponsor, debate, and public testimony are already publicly available in many states and critical in building public opposition to these bills. State Innovation Exchange can support these efforts.
Table 1. State Child Labor Legislation
Note: This table summarizes the provisions of state legislation related to child labor identified by the authors as of February 9, 2024. The status of each bill reflected in this table may not reflect its current status.
Opportunities To Strengthen Child Labor Protections
State lawmakers have the power to take immediate action to protect young workers against the staggering uptick in child labor violations, especially among children working in dangerous industries. The following sections include examples of provisions that lawmakers may consider in developing a stronger framework for child labor protections in their states, drawn from bills that have been considered at the federal and state levels. In addition to legislation specific to child labor, this section also includes enforcement approaches from other areas of labor law that may be effective against child labor violations.
See Table 1 for a summary of bills referenced in the following sections, in addition to other bills with similar provisions.
Enhancing Labor Protections
State lawmakers have the power to counteract the spread of child labor deregulation by ensuring that state-level protections continue to prioritize the health, safety, and education of young workers. At a minimum, legislators in states where child labor protections are weaker than the FLSA should raise state standards to align with federal requirements.
- Establish labor protections for children that exceed federal standards. Federal child labor standards do not include time and hour restrictions for 16- and 17-year-olds, establish rest or meal break requirements, or require work permits for youth to be employed. Many states already have time and hour restrictions or occupational prohibitions that provide additional protections for young workers beyond what is required in the FLSA. Missouri lawmakers are considering a bill (2024 MO HB 1536) that would prohibit overnight shifts for 16- and 17-year-olds on school nights. In Michigan, where existing law already prohibits overnight shifts for 16- and 17-year-olds except if a deviation is granted by the state labor agency, legislators have introduced a bill (2023 MI HB 4932) that would narrow the circumstances in which a deviation may be granted to exclude certain hours or occupations that are “hazardous or injurious to the minor’s health or personal well-being.” Additionally, while most states already require that a work permit be issued to minors for employment, such requirements do not apply to all ages of minors or all occupations, and in most states, the permit includes no process for verifying the ages of minors.
- Repeal exceptions that allow minors to be paid less than minimum wage. In addition to increasing the state minimum wage for all workers, lawmakers can ensure that young workers are paid the same as their adult co-workers for performing the same work. Legislators in the 34 states and the District of Columbia, where state law allows subminimum wages or excludes youth from minimum wage protections, can enhance protections for young workers by repealing subminimum wage laws. Rhode Island lawmakers are considering a bill (2024 RI H 7172) that would repeal provisions of existing law that allow some minors under the age of 19 to be paid less than the state minimum wage.
Modernizing Agricultural Labor Protections
While federal law clearly identifies the certain occupations considered unsafe for children under 18, the law remains extremely weak when it comes to employment in agriculture: even children under the age of 12 can work on farms in certain circumstances. The exclusion of farmworkers from child labor protections, much like the exclusion of farmworkers and domestic workers from other areas of labor and employment law, has deep roots in slavery and subjugation in the name of profit.
Much of the progress that has been made to improve conditions for farmworkers, including children, has been the result of decades of sustained organizing by farmworkers and their allies across the country. Some of these efforts have yielded legally binding codes of conduct between farmworkers and employers, which prohibit child labor and provide other important standards for worker safety and dignity. The Fair Food and Milk With Dignity Codes of Conduct are two models; these may offer inspiration for policy change.
Lawmakers can bring protections for farmworkers into the 21st century by raising state standards to minimize the risks that children face in agricultural work.
- Limit the employment of children in agricultural work. Some states have already raised the minimum age for farmwork above the federal minimum for employment during and outside of school hours or under other specific circumstances, such as migratory labor. At the federal level, the Children’s Act for Responsible Employment and Farm Safety (CARE) Act (2023 US HR 4046) would align the minimum age and work hour standards for agricultural work with that of all other industries. In New York, lawmakers previously considered a bill (2022 NY A 9235) that would have raised the minimum age for agricultural labor to 16 and established new civil penalties for violations of oppressive agricultural child labor. Under the bill, a violation resulting in serious injury, serious illness, or death would be punishable by a penalty between $15,000 and $60,115 and/or five years of imprisonment, with the penalties doubling in instances where such violations are repeated or willful.
- Establish stronger protections for the most hazardous types of farmwork. State lawmakers may also consider establishing new protections that apply to the most serious hazards that children face in agricultural work. The federal CARE Act (2023 US HR 4046), for example, would authorize the Secretary of Labor to create new regulatory guidelines for pesticide exposure for children in farmwork. Legislators in Virginia (2022 VA HB 876) recently considered a bill that would have prohibited the employment of a child under the age of 18 in any work involving direct contact with tobacco plants or dried tobacco leaves, which are known to be a significant occupational health risk for children.
- Align labor protections for farmworkers with existing standards for other industries. Though not specific to protections for minors employed in agricultural labor, legislators can bring protections for all farmworkers into the 21st century by applying basic labor standards that already exist for all other workers to agricultural workers. Colorado lawmakers recently enacted legislation (2021 CO SB 87) that repealed provisions of state law that exempted farmworkers from wage and hour protections, in addition to granting agricultural workers the right to unionize, certain meal and rest breaks, and whistleblower protections.
Enhancing Enforcement and Penalties
The growing incidence of egregious child labor violations suggests that existing enforcement mechanisms—and the likelihood that enforcement will occur at all—are insufficient to deter employers from violating the law. For profit-driven corporations, the decision is simple math: one analysis of DOL data found that federal penalties for minimum wage and overtime violations are “often relatively small when weighed against the small probability of detection of the violation for many firms.” In other words, an effective enforcement strategy must consider the cost of noncompliance in addition to maintaining a credible ability to enforce.
Increasing Penalties
Research shows that higher penalty amounts are an effective deterrent for labor violations; one study comparing minimum wage violations with state employment laws across all 50 states and the District of Columbia found that “the stronger the state’s employment laws, the lower the incidence of minimum wage violations…states that implemented the strongest penalties—treble damages—experienced statistically significant drops in violation rates.”
- Establish strong civil and criminal penalties, including minimum penalties and damages payable to aggrieved workers. State lawmakers can consider proposals that would impose harsher civil and/or criminal penalties or establish minimum penalty amounts to ensure that all violations are met with an appropriate financial penalty. The Children Harmed in Life-Threatening or Dangerous (CHILD) Labor Act (2023 US HR 6079) would increase the existing federal maximum civil penalty amount tenfold and increase the maximum criminal penalty by a factor of 75 to $750,000. Another federal proposal, the Stop Child Labor Act (2023 US S 3051), would establish a new minimum civil penalty of $5,000 and increase the maximum penalty from $11,000 to $132,270. Legislators in Virginia are considering a bill (2024 VA HB 100) that increases the maximum civil penalty for child labor violations resulting in serious injury or death from $10,000 to $25,000 per violation, in addition to establishing a new minimum civil penalty of $500 and raising the maximum civil penalty from $1,000 to $2,500 for all other violations. Under existing California law, violations of child labor laws are subject to civil penalties (Cal. Lab. Code § 1288), ranging from a minimum of $500 to a maximum of $10,000 per violation, in addition to criminal penalties (Cal. Lab. Code § 1303), which carry a minimum fine of $1,000, up to a maximum fine of $10,000 for willful violations. Importantly, an effective penalty regime should also ensure that children subject to child labor violations receive monetary compensation in the form of damages or a portion of assessed penalties.
- Enhance penalties for egregious violations. Under federal law, child labor violations that cause serious injury or death or willful or repeated violations that cause serious injury or death are punishable by a higher maximum civil penalty; state lawmakers can consider a similar approach that heightens penalty amounts for the worst offenses. For example, the CHILD Labor Act (2023 US HR 6079) would double maximum penalty amounts for repeated or willful violations, violations involving employment in a hazardous occupation or place of work, violations occurring within 10 years of the final disposition of another violation, and for employers that have employed more than 10 children in a violation. Michigan lawmakers are considering legislation (2023 MI HB 4932) that would create a new felony offense for violations that result in death or great bodily harm, punishable by up to five years of imprisonment for a first offense, up to 10 years for a second offense, and up to 20 years for a third or subsequent offense. In California, severe violations, such as underaged employment in hazardous occupations, employment in excess of daily hour limits, or other violations that present an imminent danger to the youth, are subject to harsher civil penalties as Class A violations (Cal. Lab. Code § 1288(a)). Class A violations involving minors 12 years of age or younger are further subject to a minimum civil penalty of $25,000 and a maximum of $50,000 per violation (Cal. Lab. Code § 1311.5).
Enhancing Enforcement
State lawmakers can also ensure that more employers are compelled to comply with child labor laws by the plausible belief that officials have the capacity to enforce the law. In order to be effective, an enforcement regime must give aggrieved workers the confidence that they will be protected and made whole throughout the process of an investigation.
- Establish anti-retaliation protections for workers. Lawmakers can consider applying anti-retaliation protections to child labor laws, which may include establishing a rebuttable presumption that retaliation has occurred under certain circumstances, clearly defining types of protected activity or prohibited adverse actions, providing for increased damages when retaliation occurs, and ensuring that workers can receive injunctive relief before the conclusion of any investigation. For example, the federal CHILD Labor Act (2023 US HR 6079) would create a new anti-retaliation provision within the FLSA for any complaint or proceeding relating to child labor, punishable by a civil penalty of up to $75,000 per violation, in addition to legal or equitable relief. Under California’s Child Labor Protection Act (2014 CA AB 2288), youth workers who have suffered retaliation by their employer for filing a claim or civil action alleging a violation of child labor laws are entitled to treble damages.
- Extend statute of limitations for enforcement. Child labor violations involve children who may not come to understand their rights under the law for years to come; an extended timeline for enforcement may allow more investigations to come to light. The federal CHILD Labor Act (2023 US HR 6079) would extend the statute of limitations for child labor enforcement actions from 2 years to 10 years after the cause of action accrued. In California, lawmakers enacted a bill (2014 CA AB 2288) that “tolled” the statute of limitations on child labor violations, effectively suspending the clock on the statute of limitations to begin counting only once a worker reaches the age of majority.
- Expand administrative enforcement powers and deterrence strategies. State lawmakers can also give agency officials a wider range of enforcement tools throughout an investigation. States could consider establishing a state-level version of the “hot goods” provisions of federal labor law, which authorize the DOL to seek a court order to stop the shipment of goods produced in violation of the FLSA. The federal CHILD Labor Act (2023 US HR 6079) would authorize the Secretary of Labor to issue a stop work order that applies to one or more worksites of an employer in violation of child labor laws and requires that employers continue to compensate employees affected by the order. In Texas, lawmakers enacted a bill (2023 TX HB 2459) that authorized the state attorney general to seek injunctive relief against employers for repeated violations of child labor laws. Michigan lawmakers are considering legislation (2023 MI HB 4932) that would authorize the Director of the Department of Labor and Opportunity to bring an action to “obtain an injunction against a person who is engaging in, or about to engage in, a method, act, or practice” in violation of child labor laws. State lawmakers may also consider providing resources to labor agency officials that specifically provide the capacity to widely publicize child labor violations, including publicly naming offenders and sharing the results of investigations, such as the penalties assessed and other amounts recovered.
- Add labor enforcement capacity, particularly to support migrant children. State lawmakers can also consider approaches that add language and cultural capacity for working with children who are most affected by child labor violations, especially unaccompanied minors, in addition to training that ensures appropriate engagement in ways that do not re-traumatize children. Under California’s Dymally-Alatorre Bilingual Services Act, every state agency serving a “substantial number of non-English-speaking people” is required to employ a “sufficient number of qualified bilingual persons in public contact positions to ensure the provision of information and services to the public, in the language of the non-English-speaking person” and further requires the translation of any materials explaining public services. Michigan lawmakers recently passed legislation (2023 MI SB 382/HB 4720) that creates new requirements for state agencies to “provide meaningful language access to public services for individuals with limited English proficiency,” which includes oral language services and translation of documents.
Authorizing Enforcement on Behalf of the State
To add to state enforcement capacity, state legislators can also consider options that empower other entities to carry out enforcement actions on behalf of state officials. As recent reporting on the child labor crisis shows, migrant children and their families, concerned by the looming threat of deportation, are fearful of government officials. However, they may be eligible for programs like the Deferred Action for Labor Enforcement (DALE) program, which provides temporary protection against deportation and work authorization to noncitizen workers who have witnessed or been victims of labor violations.
- Establish grant funding for community-based enforcement. Lawmakers in California enacted a bill (2021 CA AB 138) that authorized a pilot program for community-based enforcement of labor violations against garment workers. Under the pilot, organizations are eligible to receive funds to provide educational programming, direct assistance to workers in filing a wage claim, and legal assistance to garment workers. Community enforcement programs (also known as co-enforcement and strategic enforcement partnerships) allow nongovernmental organizations, often worker organizations, legal nonprofits, or community-based organizations (CBOs), to closely collaborate with governmental enforcement agencies to improve enforcement outcomes. For the purposes of labor enforcement, this approach harnesses the trust that CBOs can build with workers—especially immigrant workers who may be wary of government officials—while also leveraging existing nongovernmental capacity and funding for other efforts that support effective enforcement, such as worker education and outreach.
- Authorize aggrieved employees to act as private attorneys general. Under California’s Private Attorneys General Act (PAGA), individual workers are authorized to file a claim on behalf of the state to recover civil penalties for labor violations. Aggrieved workers can bring enforcement actions on their own behalf and on behalf of other similarly situated employees, and civil penalties recovered under such actions are distributed between the workers and the agencies to support continued enforcement. In 2019, over $88 million in penalties were remitted back to the state labor agency through PAGA actions, allowing the agency to increase staffing and language efforts.
- Establish grant funding for enforcement by local prosecutors. In the state’s 2023-24 budget (2023 CA SB 101), lawmakers approved an $18 million appropriation for the Workers’ Rights Enforcement Grant Program, which provides funding to local prosecutors for the investigation and enforcement of state labor laws.
Establishing Legal Remedies for Aggrieved Children
As an additional layer of deterrence against the most grievous violations of child labor protections, lawmakers can also ensure that aggrieved children have pathways to seek adequate legal remedies against their employers.
- Create an exception to exclusive remedies available to workers who are injured or killed and increase benefits for illegally employed workers. Generally, workers and their families are limited to compensation through workers’ compensation as the sole remedy in cases where injury, illness, or death has occurred on the job. In exchange for benefits received through workers’ compensation insurance, workers lose the right to file lawsuits against their employers, who may only face an increased premium payment. Some states have created an exception to workers’ compensation as the exclusive remedy in cases where a child has been injured and employed in violation of child labor laws. Colorado lawmakers recently enacted legislation (2023 CO HB 1196) to clarify that in cases involving injury “during a week when the employer intentionally required the minor to work hours” prohibited by law, or when engaging in work prohibited by law, aggrieved children are entitled to pursue legal action against employers in addition to remedies through workers’ compensation. Under New Jersey law (N.J. Rev. Stat. § 34:15-10), minors who are injured while employed in violation of child labor laws are eligible for twice the amount of benefits available through workers’ compensation, with employers—not insurance carriers—being responsible for the extra compensation or death benefit.
- Establish a private right of action. At the federal level, the Stop Child Labor Act (2023 US S 3051) would establish a private right of action for minors who have been aggrieved by child labor violations and hold employers liable for compensatory and punitive damages of up to $250,000.
Extending Liability to All Entities That Profit from Child Labor
The increasingly complex nature of businesses that utilize temporary workers, staffing agencies, contract workers, independent contractors, and other work structure strategies “challenge the nearly century-old workplace policies built around direct, bilateral employment relationships.” Federal employment law generally holds that more than one entity may be held responsible as joint employers for the purposes of labor violations. In announcing its Interagency Child Labor Task Force, the DOL recently signaled that its enhanced enforcement efforts would apply scrutiny to violations committed by entities within an employer’s supply chain, including contractors or staffing agencies. At the state level, legislators can extend liability to include the most powerful and well-resourced entities that have escaped accountability.
- Establish lead corporation liability for violations committed within supply chains. At the federal level, the CHILD Labor Act (2023 US HR 6079) creates a new standard for “secondary oppressive child labor,” which creates new responsibilities for employers to take steps to ensure that contractors and subcontractors are compliant with child labor laws. Though not specific to child labor violations, lawmakers in Minnesota recently enacted an omnibus labor bill (2023 MN SF 3035) to hold construction contractors liable for wage and hour violations committed by a subcontractor. In California, such laws exist to extend liability for labor violations committed by labor contractors (2014 CA AB 1897); contractors in the long-term care, janitorial, and gardening industries (2015 CA SB 588); contractors on private construction projects (2017 CA AB 1701); major retailers for shipping logistics contractors (2018 CA SB 1402); and fashion brands for claims made by garment workers employed by manufacturers or contractors (2021 CA SB 62).
- Establish joint liability for franchisors and franchisees. Licensing agreements that allow independent owners, or franchisees, to operate businesses under the brand of a franchisor are typically comprehensive and precisely drafted to ensure brand consistency. However, franchise agreements are vague when it comes to compliance with labor laws to avoid liability, even though name-brand franchisors have the power and resources to protect against child labor violations. California lawmakers recently enacted a bill (2023 CA AB 1228) that, as introduced, would have made fast food franchisors jointly liable for labor violations committed in a franchisee’s establishment, though the provisions were stricken from the bill prior to passage. As proposed, the bill would have also voided any agreement between franchisors and franchisees to indemnify the franchisor from liability, allowed franchisees to sue franchisors if the terms of a franchise agreement prevent compliance with labor laws, and established a notice and cure process for franchisors regarding violations at franchisee establishments.
Establishing Public Procurement Requirements
State lawmakers can also amend public procurement processes to require strict compliance with child labor protections by government contractors and their supply chains.
- Establish strict disclosure and compliance requirements for public contracts. By setting a state standard for compliance with child labor laws, lawmakers can ensure that no taxpayer funds are spent on contractors that rely on illegal child labor. At the federal level, the Preventing Child Labor Exploitation Act (2023 US S 3139) would require federal contractors to annually disclose child labor and worker safety infractions within the preceding 3-year period, in addition to establishing a new criminal penalty for employers knowingly failing to make such disclosures. The bill additionally authorizes the Secretary of Labor to determine corrective measures that contractors which have committed a violation must complete in order to remain eligible for contracts and to publish a list of entities that are determined to be ineligible for federal contracts due to their history of serious, repeated, or pervasive labor violations or their failure to address corrective measures.
Supporting Education, Outreach, and Coordination of Services
Adequate enforcement of any labor law requires that workers are supported with knowledge that empowers them to exercise their rights. In the case of children, who are new to the workforce and may be unaware of their rights under child labor laws, education and outreach efforts can yield long-term benefits in a workforce well-versed in their rights. States can also fill a critical role by identifying service gaps that exist for children vulnerable to labor exploitation, especially migrant children and children in families with language or literacy barriers.
- Develop education and outreach programming for children and families. States can leverage school systems as an access point to ensure that children and their families are aware of their rights under the law. California lawmakers recently enacted a bill (2023 CA AB 800) designating one week as Workplace Readiness Week, during which high schools provide information to students on their rights as workers. The bill also requires that minor work permits include information on workers’ rights in “plain, natural terminology easily understood by the pupil.”
- Support coordination among labor officials, social services, and immigrant legal services. Recent reporting shows that in many instances, children subject to child labor violations are often in an extremely precarious and even captive position, in danger of deportation or retaliation against family members in small company towns or eviction when their employer is also their landlord. To minimize barriers to federal programs that offer legal relief from deportation and material assistance with basic needs, lawmakers can lead the coordination of resources across state agencies and with community-based organizations to develop supports that are sensitive to the distrust that families may have for government officials and to the traumatic experiences of young workers.
Conclusion
Industry-driven attacks on child labor standards rely on a false narrative that children universally have the opportunity to “choose” a job where they can learn important lessons for adulthood and “sock away” savings in a Roth IRA. And yet, that narrative couldn’t be further from reality for the children who would be most affected by the deregulation of child labor. As recent reporting and data show, the children most subject to child labor violations have no good choices; they have only the choice to survive.
Trapped in the jaws of our nation’s profit-driven economy and brutally inhumane immigration system, both designed by a relentless corporate lobbying machine that has captured statehouses and courts, migrant children are pushed into the shadows where they are exploited without recourse. In some of the most shocking investigations, employers receive a slap on the wrist, if any at all, and continue operating with their reputations and profit margins intact. Even in cases of injury and death, these children’s families are not afforded the dignity of any measure of accountability or care.
In defending against the corporate conspiracy to deregulate child labor, state legislators should be clear that the campaign is just one piece of a massive and generational project to remake the economy into one that gives corporations license to extract exorbitant profits from increasingly unregulated and dangerous child labor. Other critical pieces of the destructive plan seek to eviscerate the social safety net to ensure that workers have no choice when faced with unsafe and abusive working conditions; to dismantle critical institutions like public schools by robbing taxpayer coffers to pay for colossal corporate tax subsidies; and by demonizing and punishing immigrants, to create a class of workers who suffer violations in silence for fear of deportation and family separation.
Additional Resources
Economic Policy Institute
- Child Labor Laws Are Under Attack in States across the Country: Amid Increasing Child Labor Violations, Lawmakers Must Act to Strengthen Standards (December 2023)
- Youth Subminimum Wages and Why They Should Be Eliminated: Young Workers Face Pay Discrimination in 34 States and DC (January 2024)
- Florida Legislature Proposes Dangerous Rollback of Child Labor Protections: At Least 16 States Have Introduced Bills Putting Children at Risk (November 2023)
- As Some States Attack Child Labor Protections, Other States Are Strengthening Standards (November 2023)
- States across the Country Are Quietly Lowering the Alcohol Service Age: An Industry Already Rife with Abuse—Including Child Labor Law Violations—Would Like Your Server to Be an Underage Teenager (July 2023)
- Iowa Governor Signs One of the Most Dangerous Rollbacks of Child Labor Laws in the Country: 14 States Have Now Introduced Bills Putting Children at Risk (June 2023)
Migration Policy Institute
- Four Strategies to Improve Community Services for Unaccompanied Children in the United States (December 2022)
- Strengthening Services for Unaccompanied Children in U.S. Communities (June 2021)
Acknowledgements
A special thank you to Jenn Round, the Director of Beyond the Bill at the Workplace Justice Lab@Rutgers University, for her insightful comments and valuable improvements to this publication.
A State Legislator's Guide to Direct Pay: Building Jobs & Sustainable Public Energy
A State Legislator's Guide to Direct Pay: Building Jobs & Sustainable Public Energy
Executive Summary
The Inflation Reduction Act (IRA) includes Direct Pay tax credits that have the potential to bring nearly unlimited funding for clean energy projects into the communities that need them most. Direct Pay tax credits will radically expand publicly owned energy, support communities transitioning away from polluting energy sources, generate affordable—and potentially free—electricity, and create good jobs for local communities. This guide is designed to help state lawmakers seize this historic opportunity for their communities through:- Community education and outreach: State legislators are trusted messengers who can spread the word about this opportunity to local governments, community organizations, and other eligible entities within their state.
- Implementation: State legislators can ensure that the state government enthusiastically implements the IRA and secures Direct Pay funding for their state by implementing eligible projects across all levels of state government.
- Funding and policy making: State legislators can help other eligible entities like local governments and nonprofits implement Direct Pay projects by providing matching funds, creating revolving funds or low/no-interest loans, creating technical assistance programs, and building in policy incentives to increase equity and protect workers within Direct Pay programs in the state.
About Direct Pay
For the first time ever, thanks to the IRA, the federal government will give tax-free direct cash funding to tax-exempt entities like state governments, local governments, schools, hospitals, public utilities, houses of worship, and nonprofit organizations to build renewable energy projects like solar arrays, wind turbines, EV charging infrastructure, and storage resources like batteries. This provision—called Direct Pay, or sometimes Elective Pay—gives tax-free cash payments from the IRS. These Direct Pay tax credits create an opportunity to radically expand publicly owned energy, support communities transitioning away from polluting energy sources, generate affordable—and potentially free—electricity, and create good jobs for local communities.Understanding the Funding Available Through Direct Pay
The funding available through Direct Pay can be unlimited! Direct Pay funds come in the form of refundable tax credits. Since eligible entities like state governments are tax-exempt, the tax credits are cash payments from the federal government and are paid directly to the eligible entity once the project begins generating energy. The credits last until 2032, and once the IRS determines that the project qualifies, the eligible entity will receive direct tax-free funds covering 30% to 70% of the project costs or an amount for each kilowatt generated. Every project that completes a pre-filing process and meets the IRS’ requirements will get Direct Pay funds. Projects that meet worker protection standards, buy American-made materials, and support communities with the greatest need will also qualify for more funding. The state governments, cities, counties, nonprofit organizations, and other eligible entities can all access this funding simultaneously and do not need to compete with each other for it. Eligible entities are not limited in the number of eligible projects they can undertake. For example, state governments could put solar panels on state-owned buildings, invest in EV charging infrastructure for state fleets, and create a program to build state-owned solar panels and wind turbines in communities across the state. Each of these projects would be eligible for Direct Pay funding once completed, and there is no limit to the number of eligible projects that the state could complete.Expanding Racial and Economic Justice Through Direct Pay
Creating Good Green Jobs
Eligible entities can maximize economic justice for working people by meeting the IRA’s requirements to pay workers a prevailing wage and use registered apprentices on projects so workers get the training they need to build careers. State and local governments can also ensure their projects create safe, high-quality jobs and that projects stay on time and budget by using union labor. State governments can also maximize their impact on economic justice by attaching additional worker protection requirements for Direct Pay-eligible projects that receive state grants or state technical assistance. See the Congressional Progressive Caucus Center’s (CPCC) FAQs on How to Protect Direct Pay Project Workers and Guide to IRA Worker Protection Requirements for more information.Lowering Energy Burdens
In addition to creating good green jobs, states can use Direct Pay to increase economic and racial justice by lowering the burden of high energy costs on low-income households. Twenty-five percent of all U.S. households struggle with a high energy burden (i.e., spend more than 6% of their income on energy bills), and 67% of low-income households face a high energy burden. Black households have a 43% higher rate of energy burden compared to non-Hispanic white households. Native American households face a 45% higher burden, and Hispanic households face a 20% higher burden than non-Hispanic white households. Renters and older people also face disproportionate burdens. Publicly owned clean energy infrastructure can play a critical role in lowering energy costs for households struggling to afford to heat and cool their homes because publicly owned energy can serve the public interest rather than shareholder profits, keeping costs down.Addressing Environmental Racism
Governments can maximize racial justice by taking on projects that serve the communities that have been hardest hit by racist policies, fossil fuel extraction, and pollution. Black, Indigenous, and other people of color are more likely to live in communities with high pollution burden, that are near dirty power plants, or that are facing catastrophic harm in the climate crisis. For example, the American Lung Association found that people of color are 3.7 times more likely than white people to live in a county with high levels of air pollution. People of color are also disproportionately likely to live in areas affected by heat or flooding and work in occupations where they are exposed to toxic conditions. A rapid and just green energy transition is critical to achieving racial justice. The unprecedented funding offered by Direct Pay is a critical opportunity to begin investing in the communities that have borne the greatest burden under the current extractive energy economy. For example, a state government might build publicly owned resilient power in communities prone to blackouts and outages. Similarly, a state government could build publicly owned utility-scale renewable energy projects to transition away from coal-fired power plants, install community solar for public housing units, or install public EV charging stations in frontline communities.Redressing Redlining and Bluelining
Environmental racism subjects communities of color to higher rates of toxic exposure and climate risk. Decades of disinvestment and racist policies like redlining also mean that these same communities are more likely to need help securing the up-front funding to pay for green energy projects. The impact of disinvestment and redlining is magnified in many communities by bluelining and systematic financial discrimination against communities because of perceived environmental risk. This financial discrimination could prevent communities of color and low-income communities from securing the financial resources to build clean energy infrastructure and benefit from the green energy economy. State governments can play an important role in ensuring an equitable implementation of Direct Pay by creating grant programs or revolving funds that provide no-cost or low-cost funding for green energy projects, especially by reserving funding for projects serving communities of color and other environmental justice communities.Centering Community Voices
Direct Pay is a perfect opportunity to engage directly with frontline communities so that state-run and state-funded projects reflect the needs and demands of communities themselves. Governments can also prioritize workers of color when hiring for Direct Pay project jobs. Tools like pre-hire collective bargaining agreements can include hiring targets for workers of color, women, workers with disabilities, or veterans. These agreements bring jobs to target communities and shrink racial and gender pay disparities.The Role for State Elected Champions
State-level elected champions can help their communities seize this historic opportunity in three key ways:- Community education and outreach: State legislators are important and trusted messengers who can spread the word about this opportunity to local governments, community organizations, and other eligible entities within their state.
- Implementation: State legislators can ensure that the state government enthusiastically implements the IRA and pursues Direct Pay projects across the state government and state agencies.
- Funding and policy making: State legislators can use their policy-making function to help other eligible entities implement Direct Pay projects by providing matching funds, creating revolving funds or low/no-interest loans, creating technical assistance programs, and building in incentives to increase equity and protect workers within Direct Pay programs in the state.
Community Education and Outreach
Many eligible entities are unaware of the Direct Pay provision in the IRA and its potential to create good green union jobs, lower energy costs, clean up our air and water, and more. State legislators are trusted messengers who can help spread the word about this opportunity to city and county governments and other eligible entities among their constituencies, including school districts, public universities, nonprofit hospitals, houses of worship, and nonprofit community organizations. Opportunities to spread the word about Direct Pay include:- Host a town hall or public meeting on Direct Pay opportunities in your community.
- Host a meeting with city and county officials, school board members, key community groups, and leaders of key anchor institutions in your district, such as large public universities, nonprofit hospitals, and school districts, to encourage them to take action with Direct Pay.
- Host a meeting with utilities serving your district to encourage them to actively support Direct Pay projects by making interconnection agreements simple and equitable.
- Host a meeting with local community foundations and other local philanthropists to encourage them to offer grants and funding to support the construction of Direct Pay projects by small eligible entities.
- Share information about Direct Pay on social media.
Sample Direct Pay Communications Materials
- The CPCC has created a partner toolkit on Direct Pay that includes sample messaging, sample social media posts, shareable graphics, and a shareable video explaining Direct Pay.
- CPCC has created a sample presentation on Direct Pay that you are free to use without attribution or adapt for your purposes however you see fit.
State Implementation
State governments and state agencies are eligible entities under the Direct Pay provisions. The scale of projects possible at the state level helps ensure that the promise of the IRA is made real. Example state-level sustainable Direct Pay projects:- A state implements a 100% clean energy plan or other climate action plan and uses Direct Pay to supplement the cost of implementing widespread clean energy projects across the state. According to the Initiative for Energy Justice’s Environmental Justice Scorecard, New York’s Climate Leadership and Community Protection Act (SB 6599) and Washington’s Clean Energy Transformation Act (SB 5116) reflected more environmental justice principles in the creation, implementation, and design of their programs than most existing state 100% clean energy plans. Many of the plans envisioned in these laws would now qualify (at least in part) for Direct Pay tax credits.
- A state uses Direct Pay to supplement the cost of electrifying the state fleet through building out solar-powered EV charging infrastructure for state-owned and -operated vehicles. Oregon, Hawaii, Minnesota, and Washington have announced plans to electrify state fleets. Today, building EV charging infrastructure as part of those plans would be eligible for Direct Pay tax credits, and many other parts of the IRA include funding for clean vehicles that could further supplement these plans.
- A school district in Batesville, Arkansas, installed solar panels and made its buildings more energy efficient, saving nearly $300,000 per year. The district then used the money saved to raise teacher pay. Today, adding solar panels to school buildings or other state-, city-, or county-owned buildings would also qualify for a Direct Pay tax credit, reducing the cost of the initial investment and creating even more savings that can be applied to teacher pay or other critical community priorities.
- A state puts solar panels on state-owned buildings from the state house to state agencies, creating good green jobs and lowering energy costs for the state. States can add solar, wind, or other clean energy infrastructure to state-owned buildings directly and claim Direct Pay tax credits or create grant programs to add clean energy infrastructure to other publicly owned buildings.
- A state housing agency updates public housing and affordable housing units, including adding rooftop solar to lower energy costs. For example, investments in public housing such as the Massachusetts’ Affordable Homes Act could be expanded using Direct Pay.
- A state supports state-funded schools to transition to electric buses by matching federal funds to transition local bus fleets and building solar-powered charging stations on school property. For example, Delaware and Maryland are among the states that are moving toward school bus electrification. The school system saves money and reduces dangerous diesel emissions that put our kids at risk. The school system would be able to claim a reimbursement for up to 70% of total project costs with Direct Pay credits for building EV charging stations and solar panels to help offset the costs of transitioning the school bus fleet and could match that with other federal funding for the purchase of electric vehicles.
- A state builds publicly owned utility-scale renewable energy projects on state-owned land, including Brownfield land or equity-focused community solar projects, and uses that clean energy to transition away from coal- and natural gas-fired power plants.
State Policy, Funding, and Incentives
Eligible entities will face a number of challenges in seizing the Direct Pay opportunity, including navigating an unfamiliar process with the IRS, planning and implementing sometimes complex energy projects, and finding the up-front capital to cover the cost of construction and bridge the difference between project costs and the portion eligible for Direct Pay funds. State legislators have a central role in ensuring that their communities can fully embrace this opportunity to take urgent action on the climate crisis, lower energy costs, clean up our air and water, and create good-paying green jobs. Beyond ensuring that state governments implement Direct Pay-eligible programs, state legislators have the opportunity to help other eligible entities make the benefits of the IRA real in their communities by using state funding and state policymaking tools to help other entities access Direct Pay tax credits. Policies like those that call for 100% sustainable energy by 2030 create the demand and market assurance necessary to fully maximize the benefits of the IRA, but only if they are created and implemented with a central focus on improving life for communities on the frontlines of the extractive energy economy and the climate crisis. This must include community participation in the lawmaking and implementation process and significant, measurable, and enforceable programs designed to restore the communities that have been most harmed. Providing matching funding will be especially critical for communities with the least access to resources, including frontline and fenceline communities, communities of color, communities transitioning away from extractive economies, rural communities, and low-income communities. Below, we outline some possible examples of Direct Pay financing. We plan to update this when we have more information from the federal government.Funding for Direct Pay Projects
While Direct Pay tax credits can provide substantial funding for renewable energy, these projects will need additional funds to cover the full project completion costs. Eligible entities will have to cover the cost of project construction before they receive the tax credit. Depending on the exact Direct Pay tax credit, the payment will either be disbursed as a one-time credit covering between 6% and 70% of total project costs when the project is completed or as a payment based on electricity production over ten years. To learn more about the structure of the specific tax credits, see the CPCC’s in-depth explanation of how the investment tax credit (ITC), the production tax credit (PTC), and other bonus credits work here. The Center for Public Enterprise has produced a financial model that makes it possible to compare the ITC and the PTC for a planned project. Many under-resourced communities must raise funds to complete a project before Direct Pay funding is available, which poses a significant obstacle. Access to reliable public funding to match federal funds is necessary for many communities to access the benefits of Direct Pay, or they may be vulnerable to predatory lending. State governments can dramatically increase the reach of the Direct Pay tax credits by providing direct funding through grants and by helping local governments and other eligible entities find safe, reliable, and low-cost financing options that do not undermine the public nature of the ownership of these new sustainable energy generation assets. State funding for Direct Pay-eligible projects increases equity and justice in implementation by adding additional incentives or requirements to target funds toward projects that create good local union jobs and projects that serve frontline communities. The federal government set the floor with the IRA. Now, state legislators can break through the ceiling in achieving maximized benefits for vulnerable communities, the environment, and workers. For example, it is critical to prioritize projects that include community input and reflect community demands rather than simply defining projects by geography, which may unintentionally result in funding projects that disempower or further harm frontline communities. For more information on how to define environmental justice communities in order to prioritize funding for the communities that have been harmed the most, see the Climate and Clean Energy Equity Fund’s report on defining environmental justice communities in policy. Truly just and equitable implementation of Direct Pay will only be possible if policymakers ensure that frontline communities have access to nonpredatory funding. State policymakers can play a critical role in expanding access to Direct Pay in a number of ways, including:Direct State Funding
States can appropriate funding for grants to local governments or other eligible entities to cover the up-front costs of projects. States can maximize equity and justice in implementation by requiring projects that receive state funds to meet higher labor and community benefit standards. Additionally, they can prioritize grants for the communities that need them most, such as frontline communities and communities of color. For example, several states have implemented grant programs to fund clean energy projects. Washington State’s Department of Commerce provides grants for school sustainability, and Minnesota has proposed a grant program to support the installation of solar panels on public buildings. Minnesota also established a state competitiveness grant fund to award grants to local and tribal governments, utilities, nonprofits, and other eligible entities when they required matching funds to access IRA funds. This type of state grant program is critical because it allows local governments or community nonprofits to finance their projects, and Direct Pay ensures that state funds go further.State Revolving Funds
To maximize state funds, states could provide funding in the form of a no- or low-cost loan from a revolving fund. While there is not a federally created revolving fund for clean energy, states can establish their own revolving funds to finance clean energy projects. Direct Pay makes those revolving funds considerably less risky, as eligible entities will have a head start on repayment with their Direct Pay reimbursement funds. A no- or low-cost revolving loan fund could work as follows:- A state establishes a no- or low-cost revolving loan fund for local governments, tribal governments, and nonprofit entities within the state. States can add additional worker protections, community participation, and targeting for projects serving the hardest hit communities to the loan fund.
- Eligible entities apply to the state for a loan and use the loan funds to complete their project.
- The eligible entity pre-files with the IRS once their project is near completion and then applies for Direct Pay tax credits once their project is completed.
- The eligible entity receives their Direct Pay funds from the IRS and can apply that toward repaying their loan to the state.
- The state reinvests in the next eligible project.
State and Municipal Bonds for Matching Funds
States, cities, and other government entities can authorize the use of bonds to cover the costs of Direct Pay-eligible projects. States can use bonds to fund state-owned Direct Pay projects or authorize bonds to collectively fund smaller projects at the local level. More information on using bonds for renewable energy is available in the Department of Energy bond resource guide for state and local officials. In 2024, California voters will vote on a ballot measure to authorize $15.5 billion in bonds to finance projects for climate resilience, extreme heat mitigation, and clean energy programs, including a $500 million appropriation to the State Energy Resources Conservation and Development Commission for grants to assist in obtaining or receiving a state match to regional hubs for IRA funds. In addition to securing federal grant funds, many of the projects financed by this bond, if it passes, may be eligible for Direct Pay.State Green Banks
Some states have Green Banks, which are financial institutions designed to lower energy costs and encourage the construction of sustainable energy infrastructure by blending public and private capital and financing a broad range of sustainable energy projects. While “Green Bank” is often used as an umbrella term for many types of public-private partnerships that finance sustainable energy projects, the IRA contains specific requirements for Green Banks to be able to receive funding. Many states already have established some form of Green Bank, but some are still creating theirs or are still working to meet the new Green Bank requirements in the IRA.Using Other Federal Funding Sources
In some cases, eligible entities will be able to further supplement Direct Pay funding by using other sources of funding in the IRA (for example, using grant funding for rural electric co-ops) or using funding from other federal programs such as funding in the Infrastructure Investment and Jobs Act or remaining American Rescue Plan funding.Going Beyond the Worker Protection Requirements in the IRA
State funding and state technical assistance programs offer an opportunity to support community uptake of Direct Pay, go beyond the IRA labor requirements, and impose additional protections as a condition of receiving state funds. For example, a state revolving fund to support renewable energy programs could require that programs that receive the state matching funds use union labor. Similarly, state funding could be contingent on the use of pre-hire agreements like local hire programs, Project Labor Agreements (PLAs), Community Workforce Agreements (CWAs), and Community Benefits Agreements (CBAs). It is critical that any state incentives or requirements include strong community input and strong enforcement mechanisms. For more information, please see the CPCC’s Guide to IRA Worker Protection Requirements and FAQs on How to Protect Direct Pay Project Workers. States have a critical role to play in supporting workforce development efforts to build the diverse skilled workforce needed to fully embrace a green energy economy. In addition to the jobs created by the IRA and the growth in green energy infrastructure, more than 1.7 million workers are expected to retire over the next decade. Black, Latino, Native, and Asian individuals, and women are dramatically underrepresented in these growing fields, and state agencies must help build inclusive and equitable workforce development programs. The National Skills Coalition has published a report with recommendations for states in building a just workforce development plan.Technical Assistance and Coordination
States can maximize the number of eligible entities that can access Direct Pay by coordinating technical assistance programs. Creating programs that will qualify for the Direct Pay provisions often requires specialized planning, including conducting an energy audit, creating an interconnection agreement with a utility, and more. Many smaller nonprofit organizations, local governments, and communities that have been systematically excluded, like low-income communities and communities of color, will need help.Technical Assistance
State governments can reduce barriers by funding technical assistance that could include:- Public information campaigns about the opportunity
- Free energy audits
- Hands-on support in planning projects
- Support in creating interconnection agreements
- Help finding reputable high-road union contractors
- Support in completing pre-filing paperwork and IRS documentation. By definition, eligible entities do not usually file complex taxes with the IRS and may lack information and experience in navigating the process.
State Direct Pay Coordination Program
Centralizing efforts within a state-run program or with a cross-agency coordinator can help maximize Direct Pay programs that would actively identify possible Direct Pay projects and build them using the state as the eligible entity. A state entity could actively search out Direct Pay-eligible opportunities within communities and build the projects directly (for example, put solar panels on all the schools in a local school district, perform energy retrofits on nonprofit-owned affordable housing units, or build utility-scale solar farms on Brownfield land). If the state retained ownership of the energy-generating facility, the state should claim the credit directly and lift the burden of paperwork from the smaller eligible entity. If the smaller entity plans to retain ownership of the energy-generating facility, the state could still carry out the project and receive funding by creating a side agreement with the eligible entity to transfer the credit to the state in exchange for the state completing the process. Either of these models would streamline the need for many smaller governments and nonprofit organizations to take on the administrative burdens of designing and building eligible programs and navigating the process to receive the tax credit. These types of programs would be embedded within a relevant state agency such as a state department of energy and would need to work closely with local communities to identify projects that reflect community needs, desires, and priorities. This type of approach requires a larger commitment from state champions, but it could significantly increase the speed at which projects could be implemented, reduce administrative burdens on other eligible entities, and allow the state to prioritize projects that serve historically excluded communities.Further Resources
The Congressional Progressive Caucus Center will provide regular updates and further resources on Direct Pay. You can sign up for CPCC updates, including invitations to webinars, technical assistance to help your community get Direct Pay funds, resources to build support for Direct Pay projects, and more. You can also find additional materials, like FAQs on Direct Pay, on the CPCC’s website. You can also request technical assistance on a Direct Pay project through the CPCC’s website by filling out our technical assistance intake form. The State Innovation Exchange (SiX) exists to advance a bold, people-centered policy vision in every state in this nation by helping vision-aligned state legislators succeed after they are elected. If you are working to strengthen our democracy, fight for working families, advance reproductive freedom, defend civil rights and liberties, or protect the environment, reach out to helpdesk@stateinnovation.org to learn more about SiX’s tailored policy, communications, and strategy support and how to join a network of like-minded state legislators from across the country. For a constantly updated roundup of resources on the Inflation Reduction Act, Direct Pay, and equitable implementation strategies, please visit the Direct Pay master resources list.
Fractured: Stories From a Post-Roe America
Fractured: Stories From a Post-Roe America
A new series coming June 24, 2023 chronicles the experiences of state legislators from across the country as they fight to defend abortion rights and expand access for all Americans.
American Responsibility to Afghan Refugees
After twenty years of war in Afghanistan—after 800,000 Americans serving in Afghanistan, after 20,744 American service members were injured, and after 2,461 American personnel were lost—President Biden refused to send another generation of America’s sons and daughters to fight in a war that should have ended long ago. We must continue to support the Afghan people through diplomacy, international influence, and humanitarian aid while also supporting Afghan families seeking refuge here.
Here are some ways to use your power as a legislator to advocate for Afghan families seeking refuge.
Examples of state legislation to support Afghan and other refugees:
- New York legislation to provide payment to Afghan allies who assisted our service members in various roles, including as interpreters and guides
- Oregon legislation to create a state grant program for refugee resettlement agencies, which builds on 2019 legislation that appropriated $2 million in grants
- A 2019 Colorado law codified the state’s refugee services program (originally implemented by executive order) and provided refugees access to cash assistance, medical assistance, and social services
- Enacted legislation in Colorado and Virginia created an Office of New Americans to provide support for citizenship, housing, employment services
- Enacted legislation in California that provides enhanced services to asylees and vulnerable noncitizens to provide resettlement services
- In-state tuition legislation for Special Immigrant Visa (SIV) holders in California, Colorado, Oregon, and Virginia (and here)
- Enacted bill from California that expedites professional licensing for refugees, asylees, and SIV holders
- A Virginia budget bill created a workgroup to 1) identify barriers that recent refugees face entering the workforce and 2) make recommendations for addressing any barriers that prevent them from using their work experience gained outside of the United States to obtain employment in these occupations in Virginia
- The New Jersey Governor issued an executive order that creates a cross-agency task force on Afghan refugee assistance to coordinate state efforts to appropriately prepare for and respond to the arrival of Afghan refugees and SIV holders in New Jersey
Speak out
- Make public statements on social media welcoming refugees to your communities or advocating for support. See below for examples
- Write letters to the President and/or your Congressional delegation, like this letter from Governor Polis or this letter from 16 Florida state lawmakers
- Write an op-ed or LTE in your local paper urging the quick and safe evacuation of Afghan refugees and advocating for policies to support their resettlement in your state
Redistricting and Public Health
Redistricting reforms will be considered by state legislators across the country in several states in the Fall of 2021, including Arizona, Florida, and North Carolina. Unfair redistricting practices such as gerrymandering exacerbate disparities in public health outcomes, while fair and equitable redistricting has the potential to help communities better address inequities in public health, including reproductive and maternal health and wellbeing.
- More on The Redistricting Landscape 2021-2022 from Brennan Center for Justice
The Impact of Redistricting on Public Health
Fair, transparent, and accountable redistricting led by independent commissions ensures more equitable representation in state legislatures and increases the likelihood that public health concerns (physical, environmental, and social) are addressed with policy solutions.
This is particularly important for communities of color, who, due to systemic and structural racism, experience greater disparities in public health outcomes (including mental and physical health during and after pregnancy) than white communities.
- APHA Policy #LB20-04: Structural Racism is a Public Health Crisis
Legislatures created with gerrymandered maps allow legislators to pass policy that the majority of their constituents do not support- including policies that can cause significant public health harm such as restrictions on abortion care and contraceptive access.
- Center for American Progress: Redistricting and Representation
Gerrymandering keeps conservative politicians in power and hinders the ability of states to expand Medicaid. Communities of color are underrepresented in state legislatures (and Congress) due to gerrymandering and deliberate voter suppression. Medicaid expansion is associated with improvements in health outcomes, mortality rates, lower rates of housing evictions, lower rates of medical debt, and higher rates of financial wellbeing.
- SiX and N.O.B.E.L Women: No Democracy without Black Women
- Center for American Progress: How Partisan Gerrymandering Limits Access to Health Care
- Ibis Reproductive Health and Center for Reproductive Rights: Evaluating Priorities
Prison gerrymandering—the counting of incarcerated individuals in the county where they are imprisoned rather than their home communities—impacts representation, power building, and community funding, and disportionately affects communities of color who are incarcerated at higher rates due to the discriminatory judicial system. For example, the Wisconsin legislature's refusal to switch to vote by mail in the midst of the 2020 COVID pandemic resulted in long, crowded, lines and increased risk of voter exposure to infection.
- SiX and Prison Policy Initiative: Ending Prison Gerrymandering- How State Legislators Can Ensure Accurate and Equitable Redistricting
- States with gerrymandered districts create a monopoly on power that can exacerbate public health crises when they happen.
- The Brennan Center: Gerrymandering Meets the Coronavirus in Wisconsin
The Impact of Public Health on Redistricting
The COVID-19 pandemic has delayed the 2020 census...which has delayed the redistricting cycle.
Delaying the map-drawing process could mean that new maps are not ready before legislative elections in some states, such as Virginia. Delayed maps may force other states, such as Texas, to address redistricting during special sessions. Special sessions have less oversight and increase the risk of unfair maps being drawn.
- Brennan Center for Justice: The Redistricting Landscape 2021-2022
Digital Tips: Smartphone Photography
As state legislators, you juggle many hats, and sometimes have to be your own photographer.
These five tips will help you capture high-resolution photos using your smartphone:
Smartphone Photography Tips
1) Avoid zooming; instead, move closer to the subject. Most smartphones have a "digital zoom" that enlarges the image artificially, which decreases the resolution. The more you zoom in, the more resolution you lose. So when it's safe to step closer, move towards your subject rather than pressing zoom.
2) Stabilize your shot with a tripod or by simply leaning up against a wall.
3) Hold down the shutter button until the photo is complete. If you move your finger away too quickly, the image may be blurry. On an iPhone, you can reduce motion by using the volume controls instead of the shutter button.
4) Find the best lit setting for the photo. Most smartphones can take pictures in low-light conditions, but the photo's quality will suffer as a result. Where possible, use a window or the sun as your primary light source. Generally, you should not shoot facing the main light source. (That's why sunset pics are so hard to nail!) Instead, position the light source behind the person shooting the picture.
5) Finally, don't text that photo! Ever wondered why pictures you receive via text message look grainy? The likely culprit isn't the phone itself but the method used to send the photo. Most text messaging apps highly compress images sent via cellular networks. (The same issue holds for videos.)
Instead of texting, save the photo to Google Drive, Dropbox, SendAnywhere, or your preferred file storage or photo app, and then share the link with others. You can also use AirDrop or e-mail, but be careful: some e-mail programs also significantly compress images.
With all that being said, rules are meant to be broken. Sometimes, the best photos are unintentional or gloriously blurry. But when you're taking a professional picture for use in press, print, or the web, be sure to reference the recommendations above.
Fighting Back Against Anti-Trans Legislation
Anti-transgender lawmakers set records this year with their harmful and hateful legislations: thirty-three states introduced more than 100 anti-transgender rights bills across the country.
SiX convened a panel with Colorado Rep. Brianna Titone, Dominique Morgan (Black & Pink), and Corinne Green (Equality Federation) to discuss how state legislators can fight differently and fight better against anti-trans legislation.
Q&A: Fight Better Against Anti-Trans Bills
Can you give us an overview of what's been going on across the country?
Corinne Green: The largest attacks have come in the form of medical care bans and athlete bans. As broader attacks on the LGBT community start to find less purchase in statehouses around the country, we've seen our opponents hone in on trans youth—the most vulnerable segment of our population. They've found that taking advantage of people's lack of education around trans people, and their wiring to care about children has worked really well.
The number of anti-trans bills is double what we saw just five years ago. These bills are designed to ban transgender kids—specifically transgender women—from participating in school sports, and then also make it very difficult for transgender children to access gender-affirming care.
Unfortunately, these aren't the only kinds of bills we're seeing. There are still efforts to prevent trans people from using the correct restrooms. One of the most egregious bills we saw this session is the Tennessee bill requiring a specific warning sign be placed outside any bathroom that a trans person is allowed to use; it's supposed to be 6x8", use scary red lettering, etc.
We've also seen:
- attempts to increase penalties for trans people who are perceived to be in the wrong restroom
- limits on people's ability to update their identity documents
- limits around including trans healthcare in insurance plans in various states
- targeted attacks to exclude trans women from women's shelters when they're on the streets and need a place to stay
So while the moneymakers for our opposition tend to be the athlete bans and the medical care bans, it's still a broad attack.
We're also finding that they're rolling our issues into the intersectional issues that our community has always dealt with. Bills that attempt to limit teaching around racism in America often also have a component limiting teaching around gender identity and sexual identity. And so there's abroad pushback that we need to respond to as a coalition of marginalized people.
Corinne Green is the policy and legislative strategist at Equality Federation. In this role, she tracks all LGBTQ related legislation across the country and provides policy analysis and support to Equality Federation members. Corinne is a harm reduction and queer rights activist from New Orleans, Louisiana. Prior to joining the Equality Federation, she worked for Transgender Law Center, where she oversaw the passage and implementation of California’s Gender Recognition Act, the country's largest expansion of access to non-binary gender markers, and created the Protect Trans Health campaign to defend gender identity protections and the Affordable Care Act.
What tools have you used to combat anti-trans legislation? And what else might you need to be helpful on the ground?
Anti-trans legislation happens all the time. And sometimes, it's not blatant. Sometimes it is hidden.
So, when I was debating bills on the floor, one of the bills said "pregnant people" right in the title. And one of my colleagues came up and said, "We're going to change that to biological women." I heard that and I was like, "Oh, no, no, no, they did not just do that." And I walked down to the well to defend trans people because they were trying to erase us.
So I told them, "You need to understand that biological women are not the only people who can get pregnant. Trans men can also get pregnant, people with uteruses can get pregnant." And I said, "We're not erasing trans people today."
I really put myself out there for my colleagues to understand who I am. And why what they do or say is hurtful to me. And I have to defend myself often.
Not every legislature has a trans person or non-binary person there. So you know, we're relying on allies to stand up for us. And that's really important when we can't be there to defend ourselves in person.
When it comes to legislation in general, especially in committees, I've found that personal stories are important. It's super important to communicate that we're people and we're your constituents.
Representative Brianna Titone was elected in 2018 as the first openly transgender legislator in the Colorado General Assembly. She serves as the Vice Chair of the Joint Technology Committee and serves on the Health and Insurance Committee and Energy and Environment committees. Additionally, she serves as the chair of the House Democrats LGBTQ caucus and is dedicated to eliminating gaps in consumer protections, health care and LGBTQ rights in Colorado.
Many national trans rights organizations are white-led. As a black trans woman leading the largest prison abolitionist organization in the country, how do you hold the importance of visibility in this moment?
Dominique Morgan: I've driven three hours to be heard for two minutes. I've tried to show the world the deepest, darkest parts of how I've been harmed, [all] to sit in front of three or four legislators in Nebraska who acted like I was reading them my grocery list.
I don't want us to keep pushing people to be exposed and go through trauma to prove that they should be treated as human beings. And I don't think [political] positions are the be-all-end-all. But I think it's a step. If you were to look at the queer and trans people in power in our community, you would think that Black and brown trans people don't exist. You would think that our existence is predicated on Pose and sex work. And for many of us, that is our truth. But we also have girls out here who are in tech. There's a spectrum of our experience, right? And I think that's what's really important.
We're talking about amplification; we're talking about a centered experience for trans Black folks. And we're talking about challenging and calling in white, trans and gender non-conforming folks to get comfortable with being de-centered. To be de-centered with love.
Now, I don't know how y'all did in y'all households, but if an elder walks in, did y'all just sit there and look at that elder stand there, or did you get up and give that chair up? You got up and gave them the chair. "Get up, your Auntie need to sit down." "Get up your grandmother's coming in the house." Because you understood what that person went through that day; your body hadn't gone through the same thing. So they needed that seat. I need white folks who are within our queer community to have that sort of grace.
Dominique Morgan is an award-winning artist, activist, and TEDx speaker. As the executive director of Black and Pink, the largest prison abolitionist organization in the United States. She works to dismantle the systems that perpetuate violence on LGBTQ and gender non-conforming people and individuals living with HIV and AIDS, partnering her lived experience of being impacted by mass incarceration, including 18 months in solitary confinement, with a decade of change making artistry, advocacy, and background in public health. She continues to work in spaces of sex education, radical self-care, and transformative youth development with intentions of dismantling the prison industrial complex, and its impact on our communities.
What SCOTUS’s Latest Blow to Voting Rights Means for States
The Supreme Court has dramatically weakened one of the remaining, most vital tools we have to defend and advance multi-racial democracy in America: Section 2 of the Voting Rights Act.
In today’s 6-3 decision, Brnovich v. Democratic National Committee, the Court held that two Arizona voting laws that disproportionately disenfranchise Latino, Black, and Native voters do not violate the Voting Rights Act. While the Court did not eviscerate Section 2 wholesale, as many feared, it imposed stricter standards for evaluating future voting rights claims. Moving forward, it will be significantly harder to challenge and overturn racially discriminatory voting laws in federal courts – including the wave of anti-voter bills enacted in 2021.
To help unpack the details of the case, check out pieces from The Guardian, Election Law Blog, Vox, and Slate. You can read the Court’s opinion here, including Justice Kagan’s powerful dissent (starting on p. 45).
Why the Brnovich decision matters for states
Our democracy is at a turning point. In 2021 alone, conservative legislators in nearly every state have introduced over 400 anti-voter bills in a coordinated, national strategy to win elections for the Right. This wave of laws poses an alarming threat to our freedom to vote and intentionally silences the voices of voters of color, young voters, low-income voters, and new Americans. With Republicans in control of 61 of 98 state legislative chambers, there is no end in sight to the assault on our democracy.
The Supreme Court already struck down the Voting Rights Act’s crucial preclearance requirement in Shelby v. Holder (2013), and the For The People Act – which would create national standards for voting – is being blocked by conservatives in Congress. By narrowing the application of Section 2 in Brnovich v. DNC, the court damaged one of the last, most vital tools we have to defend and advance multi-racial democracy in America.
In his majority opinion, Justice Alito endorsed conservative state legislators’ baseless lies and policies on election fraud, noting that a state “may take action to prevent election fraud without waiting for it to occur within its own borders” – even if those laws discriminate against Black and Brown voters. SCOTUS’s nod to a known conservative strategy – invoke fraud to deny our freedom to vote – makes the threat to our democracy even more urgent.
What To Do
State legislatures are the key battlegrounds to protect the freedom to vote. Absent federal legislation, it's crucial that legislators in every state step up. Following the Brnovich decision, legislators can:
- Review and strengthen your state’s voting rights protections and legal remedies (like Virginia just did in passing their own voting rights act this year, and as Campaign Legal Center’s report recommends);
- Speak boldly about protecting the freedom to vote (using these messaging resources);
- Connect directly with your constituents on voting rights (like these legislators in North Carolina and Florida);
- Collaborate with your caucuses to advance a cohesive pro-voter and defensive democracy strategy, well in advance of the 2022 legislative season;
- Make every effort to engage communities directly in the 2021 redistricting process to ensure political maps are fair and representative (as we discussed in a recent webinar); and,
- Advocate for national standards for voting, redistricting, and campaigns proposed in The For the People Act and John Lewis Voting Rights Act.
Additional Information on the Case
The Brnovich v. Democratic National Committee decision substantially narrows Section 2 of the Voting Rights Act – one of the last remaining tools Americans have to fight racial discrimination in voting.
In 2016, the Democratic Party challenged two Arizona voting laws as racially discriminatory under Section 2 of the VRA and the 15th Amendment. Section 2 enables voters to dispute policies that disproportionately prevent minority voters from casting ballots and electing representatives of their choice. The two Arizona policies in question barred mail ballot collection by anyone other than a voter’s immediate family, and required election officials to discard all ballots cast by voters in the wrong precinct.
While Section 2 has been primarily used to defend against racial gerrymanders and minority “vote dilution,” this section has become much more important for election policy cases after SCOTUS halted the VRA’s preclearance requirements in Shelby v. Holder (2013). Before Shelby, places with histories of racial discimination in elections had to preclear all voting policy changes with the federal government before going into effect. In fact, Arizona’s ballot collection policy in question in Brnovich was effectively blocked by preclearance in 2011.
In January 2020, the Ninth Circuit Court of Appeals ruled that – in Arizona’s context – ballot collection and out-of-precinct voting restrictions have discriminatory impacts on Native, Latino and Black voters in violation of Section 2. Native Arizona voters who live far away from precincts and mailboxes are much more likely to rely on community ballot collection than White voters. Native, Latino, and Black Arizonans are also much more likely to move residences and to have their precincts relocated than White voters. The Ninth Circuit also found evidence that the ballot collection law was purposefully enacted to target minority voters.
Arizona Republicans petitioned the Supreme Court to take up the case, and conservatives nationwide urged the Court to limit the application of Section 2 going forward. Amid an unprecedented wave of racialized, anti-voter laws, Brnovich v. DNC further restricts options for protecting voting rights in America. And it could reshape our democracy for years to come. For additional background on Brnovich, check out resources from The Brennan Center and Harvard Law School.
Digital Tips: Using Instagram Highlights
This resource is adapted from our Digital Tips e-mail series. To sign up to receive these resources in your inbox regularly, join our network.
Did you know you can see how many people visit your Instagram profile each month? Every visitor may not opt to follow your Instagram, but each visit is a valuable chance to introduce yourself to constituents and shed light on your current priorities.
Instagram Stories Highlights are an easy way to ensure new visitors can easily find updates about you and your work. You can use Instagram Stories Highlights to highlight legislative updates, break down important issues, and share your personal story.
Below, find three steps to create a quick Instagram Highlight. I did all of the following steps on my iPhone 7 in a few minutes.
Creating a quick Instagram Highlight
1. Find visuals: Start with an app like Unsplash (also available on desktop) to find free, high-quality photos related to the theme of your Instagram Story.
If the subject matter is difficult or inappropriate to visualize, use a photo of your legislature instead, or search "texture" on Unsplash to find an abstract background.
2. Create the first Story: In the first Story, add a photo and a large title to introduce the topic.
3. Add details in consecutive Stories: You can use the same background photo or a different one in the next set of stories. Break up your explanatory text across multiple stories, so the information is not overwhelming. And always provide context: keep in mind that visitors to your profile may be entirely new to the issue you're discussing or even to how a state legislature works.
If you'd rather create a selfie video instead of using text, go for it! Just be sure to add captions, which can be auto-generated within Instagram Stories.
Use emojis and GIFs to help illustrate the information, but don't go overboard. (Tip: You can paste in any photo or GIF from your phone to Instagram Stories!)
4. Create the Highlight: After posting your Story, you can easily create an Instagram Highlight. Then, give the Highlight a short title and "cover." or thumbnail.
Free Downloads
Here's a little help to get started: download one of SiX's Instagram Stories templates and use our collection of icon thumbnails to make your highlights easy to identify. You can also screenshot all of these resources in SiX's Instagram Highlights!
Digital Tips: We ❤️ Legislator Tweets
This resource is adapted from our Digital Tips e-mail series. To sign up to receive these resources in your inbox regularly, join our network.
In this issue of Digital Tips, we'll help inspire your social strategy by analyzing three tweets from legislators in our network.
Tutorial: Tweets from Legislators
A check-in tweet from Sen. Julie Gonzales
Why We Love It
Colorado State Sen. Julie Gonzales' tweet illustrates how informal but genuine posts can enrichen your social media strategy. Asking your audience a question—and then engaging with their answers— is a great way to build community and connect directly with constituents.
Tips
It takes time to build a space where people feel comfortable sharing publicly. Don't be discouraged if, at first, you don't get responses. Try enlisting a colleague or friend to answer the question (using their account) so that you can reduce the barrier to participation for other followers.
You can also tailor your question to a particular issue you're championing. For example, if you're advocating for expanded child care access, you can ask, "Parents and caretakers: what's been your experience finding child care for your kids?"
An accessible explainer thread from Rep. Rayner-Goolsby
Why We Love It
This tweet from Florida Rep. Michele Rayner-Goolsby is the first in a four-part thread about the ongoing battle over voter restrictions in Florida. Sometimes, it's precisely when an issue is front-page news that an accessible explainer is needed.
Tips
In addition to drawing upon facts, use personal anecdotes (or constituent experiences) to present a complete picture and leave readers with a memorable mental image.
Whenever possible, avoid legislative jargon if there's a more straightforward way to get across the same point.
A heartfelt message from Sen. Polehanki
Why We Love It
Michigan State Sen. Dayna Polehanki's video for Teacher Awareness Week is an excellent example of how a thoughtful message—whether written or on video—can set your content apart and make your followers feel seen.
Tips
Captioning your videos is essential, and there are lots of low-cost and free ways to do it. Here are a few tools I like: MixCaptions (free or paid; for desktop and mobile), Kapwing (free or paid; best for desktop), and Rev.com (paid; for desktop.)
Finally, note that the length of Sen. Polehanki's video is just 37 seconds. Though Twitter videos can be up to 140 seconds long, it's best to keep them short.
Quick Links: Digital Resources From Around The Web
📱 Why Do Videos Sent from My iPhone Vary so Much in Quality?
🪄 How to Make The Facebook Algorithm Work For You
Digital Tips: Text Spacing in Graphics
This resource is adapted from our Digital Tips e-mail series. To sign up to receive these resources in your inbox regularly, join our network.
Tutorial: Line Height
Look at the paragraphs below. Which one is easiest for you to read?
If you chose option 2, you, like most people, find proper spacing essential to readability.
One of the most important elements to consider when adding text to graphics is line spacing, also known as leading.
Here's a handy rule: Line spacing should be 125% to 150% of your font size. Different programs measure line spacing differently; since many legislators use Canva for graphic design, I'll use it in this example.
In Canva, the line spacing value (called "line height") is relative to the font size. So you should set your line spacing to a value between 1.2 and 1.5.
Bonus Tip: Don't squash too many details in one graphic! Remove unessential information and include extra details in the post or tweet's caption.
Quick Links: Digital Resources From Around The Web
🗣 Tips for Getting Used To The Sound of Your Own Voice
🏳️⚧️ The Gender Spectrum Collection: Stock Photos Beyond the Binary
📸 Twinsta: Share Your Tweets on Instagram
🔠 The Ultimate List of Social Media Acronyms and Abbreviations
Against Hate: Responding to Anti-Asian Violence
Asian American communities have experienced an alarming rise in racially-motivated attacks since the beginning of the COVID-19 pandemic, and experts fear many incidents are going unreported.
No one should have to live in fear of being attacked for who they are. The resources below can help you and your constituencies report, respond, and join in collective action against anti-Asian attacks.
Learn how to intervene and stand against racism
- Bystander Intervention Guide (Hollaback)
- How to Respond to Coronavirus Racism (Teaching Tolerance)
- COVID-19 Resources to Stand Against Racism (Asian Americans Advancing Justice)
- Bystander Intervention Training (Asian Americans Advancing Justice)
Take action in your state
- Use examples from other electeds to help model your state's response:
- NY Attorney General Letitia James launched a hotline for New Yorkers to report hate crimes and bias incidents.
- Michigan lawmakers encouraged constituents to report hate crimes to the state e-mail and hotline.
- The New Jersey legislature introduced a resolution denouncing hate crimes and calling for the governor and AG to provide victims' assistance and enhance security at targeted institutions. Legislators introduced similar resolutions condemning anti-Asian violence in California and Hawaii.
- Legislators in Kansas, Massachusetts, Nebraska, and Ohio introduced bills to create state advisory commissions on Asian and Pacific Islander (API) affairs. Existing API commissions in other states have centralized resources for residents and facilitated meetings for the public in the wake of anti-Asian violence.
- California lawmakers approved $1.4 million in funds to support research on anti-Asian violence and the development of multilingual COVID-19 resources for API communities.
- Lawmakers in New York introduced legislation to require the collection of demographic information on the sexual orientation, gender identity, and race and ethnicity of both alleged perpetrators and victims of hate crimes.
- Use your platform to speak out. One horrible aspect of this crisis is the lack of media coverage—we cannot afford to be silent.
- Access pro bono assistance and other legal responses to hate crimes from the National Asian Pacific American Bar Association (NAPABA.)
Document incidents
By sharing what you experienced or witnessed, you can educate the public, empower others, show service providers where help is needed, and strengthen advocacy efforts for hate crimes response and prevention.
- Submit an incident to Stand Against Hatred
- Submit an incident to OCA National
- Submit an incident to Stop AAPI Hate
Other resources
- Anti-Asian Hate Crime During the COVID-19 Pandemic: Exploring the Reproduction of Inequality (American Journal of Criminal Justice)
- Hate crime laws state-by-state (Anti-Defamation League)
- They Blamed Me Because I am Asian: Findings from Youth-Reported Incidents of AntiAAPI Hate (The Asian Pacific Policy and Planning Council - A3PCON)
What Should I Post? Building a Social Media Strategy for Legislators
Legislators and staffers often wear many hats, including the role of social media manager. Is it possible to build an engaged social media following while juggling other priorities? Yes! And having a solid strategy can help.
A successful social media strategy requires more than tweeting regularly—it involves identifying realistic goals and concrete steps to reach those goals. Use the prompts and resources below to start developing a social strategy today.
Strategy Prompts
Big Picture
- Who is my audience? What content can I uniquely offer them?
- What should my social media profile convey at first glance?
- What should my followers know or feel when they see my content?
Style & Tone
- What visuals should be most prominent? (GIFs from popular culture, personal photos, community events, etc.)
- Should my tone be conversational? Formal?
- How often do I respond to constituents? (This may change depending on the platform.)
- Where is my voice needed? Where can I elevate someone else’s voice?
- What holidays and commemorative dates do I want to post about?
Content
- What parts of my personal life am I comfortable sharing? How often do I want my face to appear on my feed?
- What information can I provide that my constituents may not be seeing elsewhere?
- What issues should be reflected on my account?
- Who am I aligning myself with? What organizations, thought leaders, other electeds should I be retweeting or engaging with?
Cheatsheet: Help! What Should I Post?
Got time?
- Write a thread: Explain your priorities for the session or some of the barriers to the work you're doing.
- Tip: Use simple language and link to articles that have more information.
- Compare and contrast to other states
- Tip: Browse NCSL’s list of legislature social media accounts and look at what legislatures in other states are posting about. Look for an issue relevant to your state and use it as an example to draw a comparison.
- Cite a statistic: Use an engaging stat to start a discussion about an issue area.
- Tip: Find a reliable source (e.g. Guttmacher for repro, Brennan Center for voting rights) and find a stat that captures the importance of the issue. The more localized the stat, the better. (If you have space in the post, credit the source by tagging them—you may get an RT!)
- On This Day: Use Google Photos or Twitter advanced search to find a photo you took on this day (or thereabouts) in a previous year. Or use OnThisDay.com, Equal Justice Initiative's calendar, and similar sources to find a societal date or holiday to recognize.
- Tip: Set a reminder in advance of the date.
- Tell a constituent story: Share an anonymized (unless you have permission) story about a constituent’s experience or an anecdote about a recurring theme you're hearing from constituents.
- Ask a question: Ask your constituents a question—but be prepared for the responses!
Don't have time?
- Repost a Tweet: Use Twinsta or TweetPik to repost a recent tweet to Facebook and/or Instagram. In the caption, re-emphasize the messaging in your original tweet or add more insight.
- Quote an Article: What’s the last great article you read? Pull your favorite quote from it and post. Even better: add a little insight after the quote.
- Tip: Paste the article's URL in the Twitter search box, and see who else has posted the article.
- Respond: Instead of publishing an original tweet, reply to someone else’s tweet.
Tools & Resources
(All of these websites are free to use, but some have premium options for more features.)
- Animoto: online video creation
- Buffer: Simple social media scheduling
- Burst, Pexels, Pixabay, & Unsplash : Free high-quality stock photos
- Canva: Ready-made graphic templates and graphic creation tools
- Feedly: News aggregator app
- Google Alerts: Set up alerts about keywords
- Tip: Use Google search operators to refine your results
- Hootsuite: More advanced social media scheduling
- Omnilink and Linktree: Instagram “link in bio” manager
- Pocket: Save and organize a reading list of articles.
- Spark: Make simple videos on desktop or mobile
Articles:
- Search Twitter More Efficiently with These Search Operators | LifeHacker
- Is Your Social Media Accessible to Everyone? These 9 Best Practices Can Help | Shondland
Downloads
Preparing for Statehouse Violence
Table of Contents
Following the January 6 attacks, we have compiled important information with recommendations on how legislators can protect their personal and digital safety, demand accountability, and commit to a generation of cultural transformation.
Govern Safely
- Protect your personal/family safety. Take any threats of violence seriously, and report all threats to the appropriate law enforcement agency in your state, and the FBI.
- Transition to full remote governance. Due to the heightened security risk at state capitols–both due to threats of violence and the raging global pandemic–work with your legislative and constitutional officers to move to full remote governance. Many states have already moved their legislative work online in accessible, democratic ways. For more information on how to make this transition, please reference these materials we produced earlier last summer with our partners, Demand Progress, and U.S. Representative Katie Porter.
- Minimize the risk of violence at your state capitol. If remote governance is not a possibility, focus on understanding your safety risks at your place of work. Demand clear and sufficient information about how your security team is prepared for attacks. Do not force a public written response, as that may compromise everyone's safety if details of the security plan are publicly known. Advocate for swift gun-safety changes at the capitol, including banning the open or concealed carry of weapons, even for legislators (some who may have had a hand in the recent violent insurrection in the U.S. Capitol). Michigan was recently able to ban open carry in their capitol with bipartisan support. For direct support on gun safety policies, contact stategovaffairs@everytown.org.
- Demand accountability. Impeach. Expel. Investigate. Demand that Trump and his co-conspirators, from Senators and House Members to state legislators, who fed, fueled, and fomented these attacks on our democracy must also be removed or resign.
- Expose and document extremist behaviors in your institutions. Join this public call for individuals, elected officials (local & state), and law enforcement to publicly condemn white supremacist groups and violence. Join together with your neighbors and proclaim that this type of violence will not be permitted in our backyards. Commit to exposing it, pushing back on it, protecting against it, and punishing it when you see it. Consider the tools you have available to you to expose extremist behaviors in your state government, including open records requests and other tools to expose those who conspired to commit violent insurrection and sedition against our nation.
Commit to transformation
- Acknowledge that violent white extremism is an ongoing threat to democracy. Do not attempt to minimize these attacks or assign blame to fringe elements of our society. The current violence is the result of centuries of white supremacy combined with a political system that more often than not rewards anti-democratic measures and racist and anti-Semitic means. The rise of authoritarianism, violent white supremacy, and populism is front-and-center in our global political discourse. The work ahead to find truth, reconciliation, and healing will require deep, ongoing transformative work. It is unfair and unwise to place this vast social challenge at the feet of police and armed guards whose only known response mechanism is more violence, or who may have been involved in the attacks.
- Use your position to change the definition of public leadership. Take a bold public stand against white supremacy in your official capacity. You can amend existing state loyalty oaths for legislators, legislative candidates, and/or state employees to include the denunciation of white supremacy groups. See an example from Illinois here.
- Deeply invest in multi-racial organizing rooted in race equity. It is not a coincidence that the attack on the Capitol was on the same day that the transformational organizing work of Black and Brown communities flipped two U.S. Senate seats, changing partisan control of the chamber. Violent white backlash is a hallmark of American history and this type of terrorism demonstrates that extremists are afraid of the ascending power of BIPOC communities across this country.
As we allow ourselves the space to grieve and rage, let us also be emboldened by the knowledge that our strategy is working. We must continue to fight tirelessly to build a robust, multi-racial democracy and dream of the country we want to live in.
Downloads & Other Resources
- E-mail helpdesk@stateinnovation.org to request access to the recording of a training withClick to watch training with the Digital Defense Fund, SiX, and Local Progress or view slides below to learn how to take proactive measures to prioritize your physical and digital safety.
- Additional resources shared during the presentation:
- Guidance for Reporting on Extremist Groups & Threats
- Violence Prevention & De-escalation Resources for State & Local Officials
- Many states have address confidentiality programs for various folks; more info at https://victimconnect.org/resources/address-confidentiality/
- On collecting doxxing evidence: endtechabuse.org
- Additional resources shared during the presentation:
What Just Happened in the States
Partisan Control of State Legislatures Remains Largely Unchanged
In November 2020, nearly 6,000 of the nation’s 7,383 state legislative seats were up for election. Come January 2021, the partisan control of state legislatures will look almost identical to how they looked two years prior: of the 98 chambers that have partisan control, 59 are held by Republicans, 37 by Democrats (as of this writing, the Arizona Senate and House remain in flux; Nebraska is a unicameral, nonpartisan chamber).
Though communities of color in Arizona, Nevada, Georgia, Pennsylvania, Wisconsin, and Michigan beat back Donald Trump’s fascism and division federally, gerrymandering and other structural barriers kept their state legislatures relatively unchanged. For example, in Wisconsin, Joe Biden won 49.4% of the vote (as of November 5th), but Republicans retained 61% of all state legislative seats.
Progressive Policy Victories Were Achieved via Ballot Measure
Voters of all political persuasions overwhelmingly support progressive public policy options, mostly through direct democracy in the ballot measure process.
- Alabama voters removed racist language from their state constitution.
- In California, voters restored voting rights to individuals serving parole for felony convictions.
- In Colorado, voters rejected a ban on later abortion—in even higher numbers than they voted for Joe Biden—again affirming broad bipartisan support for abortion access.
- In Colorado, voters also approved a new national standard for paid family and medical leave, which will begin in 2024.
- In Florida, almost 61% of voters approved raising the minimum wage to $15 by 2026.
- In Utah and Nebraska, voters stripped the “slavery as a punishment” clause from their state constitutions.
- Marijuana was decriminalized, legalized, and/or taxed in five states: Arizona, Mississippi, Montana, New Jersey, and South Dakota.
Statehouses Across the Country Will Be More Diverse
The 2020 election produced a diverse new class of progressive electeds in red and blue states alike.
- Oklahoma elected the country’s first openly nonbinary state legislator, Mauree Turner– and they are a Muslim millennial!
- In New Mexico, there is now a 37–33 majority of women in the House.
- Five newly elected state legislators will become the first Muslim legislators in their states: Mauree Turner in Oklahoma, Madinah Wilson-Anton in Delaware, Iman Jodeh in Colorado, Samba Baldeh in Wisconsin, and Christopher Benjamin in Florida.
- Several LGBTQIA “firsts” were celebrated throughout the country: In Delaware, Sarah McBride became the first transgender person elected to a state Senate. Two other Democrats became the first openly transgender people to win seats in their states’ Houses: Taylor Small in Vermont and Stephanie Byers in Kansas. Tenessee elected its first openly gay and openly bisexual legislators, Eddie Mannis and Torrey Harris, respectively.
- In Washington state, the number of Black women legislators tripled from the previous year.
The pipeline of public leadership is starting to look more like America— but we still have far to go. We can never achieve justice if our decision-makers are older, whiter, and more affluent than the people they represent; only 29% of state legislators who hold office are women and 78% are white.
In many states, legislators are part-time, paid very little (if at all,) and required to drop everything to be fully available for their legislative sessions. This has led to state legislatures being disproportionately composed of retirees, independently wealthy people, and those whose educational and career privileges allow them to hit pause on their careers for up to several months per year without repercussions.
What Comes Next
The most immediate challenge facing all state legislatures next year will be swelling budget deficits due to the pandemic and the recession. At the same time, state legislators face an extreme risk across the progressive movement—that all hopes are laid at the feet of the new President without an acknowledgment that state legislatures have significant power to shape the political terrain for generations to come.
We know that bold champions can make a difference in every legislative context — majorities, minorities, and split governance states — and our champions need resources and support to create transformative change. SiX is designed precisely for this work.
The road ahead isn’t easy, but the work to transform this country is a long arc. We stand on the shoulders of our ancestors and are so grateful to be in this generational struggle.
COVID Response: Resources for State Legislators
As the coronavirus situation continues to unfold, we’re compiling resources here to help you navigate the many challenges this presents to your community. We know that crises like these have disproportionate impacts on vulnerable and low-income communities and want to make sure we stand up for those most at risk. As legislators, you are uniquely positioned to find solutions that mitigate the harm for at-risk medical populations (people with chronic health conditions, people with disabilities, the elderly), hourly workers, the millions of Americans without access to health care or paid sick days, and everyone who is one health emergency away from financial ruin.
The resources we've linked to below can help you use your platform to provide clear, scientifically-based information to the public and advocate for better policies.
If you have actions or new policies that are happening in your states, please share them so we can provide them to other legislators across the country. Please email helpdesk@stateinnovation.org.
Race and the Virus: Bias, Data, Testing, and Impact
The spread of COVID-19 took longer to reach rural America, however, once it did, it highlighted some basic infrastructure needs that are lacking for rural residents. During COVID-19, rural people have faced many of the same challenges as urban residents, yet have struggled to access adequate information, medical services, food and medicine due to an erosion of public investment in rural infrastructure.
See more here.
Health Care
In addition to the risks to individuals’ physical health, the COVID-19 pandemic affects every health care system in the United States (medical, public health, insurance) and each of their corresponding workforces. State legislatures have a responsibility and opportunity to ensure that these systems are operating effectively and equitably for the health of all people.
See more here.
Unemployment and Worker Protections
The Covid pandemic has had devastating impacts on every single worker and every aspect of our economy, particularly women and Black, Brown, and Indigenous workers. Too many are grappling with how to pay for the basic necessities they need to survive and many are being forced to decide between going back to a job that may be unsafe or protecting their health. Fortunately, legislators and partners can implement innovative solutions that will make our workforce and our local economies safer and stronger.
See more here.
Preventing Evictions
Our nation is in the midst of a housing crisis, exacerbated by the COVID-19 pandemic. Under our nation’s system of racial capitalism, housing serves more as a financial asset or investment than a basic human right. The current system disproportionately harms working-class, Black, Indigenous, and communities of color (BIPOC)—leaving them out of both asset building opportunities and housing protections. Evictions already place a disproportionate harm on Black women and their families, who are almost four times as likely to be evicted as households led by white men. Housing stability has always been a civil rights issue that directly descends from our nation’s history of segregation and racist housing practices.
See more here.
Democracy and Voting
2020 Census
- The 2020 Census is still on and it is more important than ever to get out the count and encourage communities to self-respond. SiX’s Census Get Out the Count Toolkit for State Legislators has everything you need to promote the census digitally with your constituents during the pandemic and is being updated regularly. Here’s the most important message the all legislators should be lifting up:
- “Responding to the census has never been easier. You can fill out the form from the comfort of your home—online, over the phone, or by mail—all without having to meet a census taker in person.”
- To make sure you’re staying informed and sharing the latest information with your constituents, check out the Census Bureau’s news room and overview of 2020 Census Operational Adjustments Due to COVID-19.
- On April 13, the Bureau announced major operational changes for the 2020 count. All field data collection activities have been suspended until June 1, and the enumeration period has been extended until October 31, 2020. That means households will now have until the end of October to self-respond to the census, though legislators should still encourage communities to participate as soon as possible.
Voting & Elections
- COVID-19 poses an incredible threat to voter access and participation in our elections and requires a multi-pronged, well-funded solution. To meet this challenge, states must rapidly ensure that voting systems are safe, resilient, and flexible. Democracy advocates across the country are uniting behind the below areas of reform to protect our democracy during the pandemic:
- Expanded voter registration, including online registration, same-day registration, and automatic registration;
- Expanded mail voting, including pre-paid postage and fair and consistent ballot verification and cure processes;
- Expanded early voting and in-person voting opportunities;
- Reforms to polling station locations, setups, and sanitation protocols (following CDC guidelines); and
- Robust public education.
- For a detailed overview of these policy recommendations see the following resources from SiX’s national partners:
- Brennan Center for Justice: How to Protect the 2020 Vote from the Coronavirus, Voters Need Safe and Sanitary In-Person Voting Options, Why a Vote-by-Mail Option Is Necessary, and Estimated Costs of Covid-19 Election Resiliency Measures
- National Taskforce on Election Crises: COVID-19 Election Guide
- The Leadership Conference on Civil and Human Rights: Voting Rights Coalition Letter: Protect Voting Rights and Public Safety in Response to COVID-19
- Brennan Center for Justice: How to Protect the 2020 Vote from the Coronavirus and Estimated Costs of Covid-19 Election Resiliency Measures
- Center for American Progress: Election Contingency Planning During the Coronavirus Pandemic
- Campaign Legal Center: Three Measures to Ensure Ballot Access During the Coronavirus Pandemic
- Fair Fight Action Fund: Protecting Our Democracy Amid COVID-19
- Marc Elias: Four Pillars to Safeguard Voting Rights with Vote by Mail
- For technical recommendations on expanded vote by mail, check out the National Vote at Home Institute’s extensive reference library and Scale-Up Roadmap to Secure the 2020 Election. This article from Washington Monthly outlines Utah’s path to scaling vote by mail. SiX’s 2018 Modern and Secure Elections Playbook also includes policy guidance and legislative language on vote by mail systems.
- For additional resources, see the Election Assistance Commission’s (EAC) Coronavirus (COVID-19) Resources page, National Association of Secretaries of State’s (NASS) Issue Briefing: Election Emergencies & COVID-19, and NCSL’s COVID-19 and Elections page.
Reproductive Rights
COVID-19 poses specific threats to reproductive health care access and needs; further, some states have taken advantage of the crisis to play politics and restrict abortion care access. But research shows that even in the midst of COVID—and despite disinformation spread by the anti-choice opposition—people continue to oppose restricting access to reproductive freedom.
See more here.
Education
The Department of Education and the White House are pressuring schools to open in the fall but are providing little to no guidance for doing so safely, threatening to withhold funding for states or districts who do not comply. While the pressure to reopen schools in the fall grows, so does the number of coronavirus cases, leaving school districts and states scrambling to keep up with a quickly changing situation. States will have to consider how to keep all students, teachers, faculty and support staff safe—not just those in wealthy communities—through budget considerations, remote learning options, financial aid, school meals, testing and tracing, and more.
See more here.
Food Systems and Agriculture
Covid-19 demonstrated that the corporate food supply chain is one crisis away from failing, which puts communities at risk of being food insecure and could cause barriers for local farmers working to address the food needs of their community. In order to ensure that communities are resilient in their ability to access food during a crisis, legislators should work to ensure that there is a sound regional and/or local alternative food supply chain with a plan to get food to those who need it while also ensuring that food and farm workers are adequately protected in their workplaces.
See more here.
Immigration
Undocumented Immigrants make up a disproportionate share of frontline workers and are especially concentrated in high-risk industries such as food production, health care, and transportation. However, these same immigrant workers have been excluded from any economic relief included in the CARES Act and are unable to access unemployment insurance. To compound this devastating situation, Trump’s immigration enforcement machine continues to target undocumented residents and separate families at astounding rates, which has led to extreme health risks within immigration detention centers across the United States.
See more here.
Rural Communities
The spread of COVID-19 took longer to reach rural America, however, once it did, it highlighted some basic infrastructure needs that are lacking for rural residents. During COVID-19, rural people have faced many of the same challenges as urban residents, yet have struggled to access adequate information, medical services, food and medicine due to an erosion of public investment in rural infrastructure.
See more here.
Defend Against Harmful Policies
State legislatures are on the frontlines of the coronavirus pandemic, trying to do their best to protect and provide vital social services to their constituents. While some states are passing inclusive policies to stabilize our local economies, others are using the pandemic as an opportunity to pass harmful policies that will have devastating impacts on our communities. Additionally, some policies are intended to support struggling families but are having unintended consequences.
See more here.
COVID Resources: Unemployment and Worker Protections
The Covid pandemic has had devastating impacts on every single worker and every aspect of our economy, particularly women and Black, Brown, and Indigenous workers. Too many are grappling with how to pay for the basic necessities they need to survive and many are being forced to decide between going back to a job that may be unsafe or protecting their health. Fortunately, legislators and partners can implement innovative solutions that will make our workforce and our local economies safer and stronger.
Resources:
- Unemployment benefits and preventing wage theft of stimulus checks
- The National Employment Law Project highlights six key priorities for strengthening unemployment systems
- The EARN network hosted a webinar about unemployment solutions
- The National Consumer Law Center lists a number of states who are working to protect stimulus checks from garnishment
- Worker Health and Rights
- A Better Balance produced an emergency paid sick leave tracker for States, Cities and Counties
- Labor and Worklife Program at Harvard University in partnership with NELP collected a number of measures that state and local officials can take to protect workers as economies reopen, as well as tools to help encourage the use of communication to keep workers safe
- Workers compensation - Vermont Governor Phil Scott signed into law a bill that provides temporary workers compensation
- Hazard pay - Any employer that provides COVID-19 essential services shall provide hazard pay if it employs at least six individuals. See this bill from Massachusetts .
- The Colorado Legislature passed CO HB 20-1415 (enacted on July 11, 2020) which prohibits employers from discriminating or retaliating against any worker who raises concerns about workplace health and safety practices related to a public health emergency.
- NELP provides an overview of 14 states that have adopted comprehensive worker safety protections
- Many states are fighting back against corporate immunity that lets businesses off the hook if they don’t protect workers. A state level toolkit to push back is here.
- Farm & Food Worker Safety
- Appropriate funds for farmers to purchase PPE for farm and food workers. See this bill from New Jersey.
- Ensure that state information related to farm worker safety is communicated in both Spanish and English. Here is what Vermont did and this is the bill being considered in California.
- Through executive action, Governors from California and Michigan have taken action to protect farm workers. An Executive order from California Governor Newsom requiring paid sick leave for workers, while Michigan Governor Gretchen Withmer issued an Executive Order on migrant housing camps during COVID-19.
COVID Resources: Reproductive Health Care
COVID-19 poses specific threats to reproductive health care access and needs; further, some states have taken advantage of the crisis to play politics and restrict abortion care access. But research shows that even in the midst of COVID—and despite disinformation spread by the anti-choice opposition—people continue to oppose restricting access to reproductive freedom.
Always work with your state’s reproductive rights, health, and justice coalition - contact us for support if needed!
Resources:
- Communicating about Reproductive Freedom During COVID
Attacks on reproductive freedom have not disappeared during the coronavirus pandemic. In fact, politicians in some states are using the pandemic to try to ban or restrict access to abortion in new ways. But research shows that even in the midst of COVID—and despite disinformation spread by the opposition—people continue to support reproductive freedom. Click here for messaging guidance.
- Actions State Legislators Can Consider to Protect Reproductive Health Care
From removing existing barriers to abortion care to expanding tele-health services, state lawmakers can facilitate easier access to reproductive health care that reflects our current realities. And any COVID-19 response should be viewed through the lenses of racial and gender justice.- Ten Things State Policymakers Can Do to Protect Access to Reproductive Health Care During the COVID-19 Pandemic. Guttmacher Institute. May 2020.
- Expanding Telemedicine Can Ensure Abortion Access During COVID-19 Pandemic Center for Reproductive Rights and Columbia University. Spring 2020.
- Promoting Equitable Access to Health Care in Response to COVID-19. National Women’s Law Center. Spring 2020.
- 5 Ways State Policymakers Must Center Gender Justice in Their COVID-19 Response. National Women’s Law Center. Spring 2020.
- COVID-19 Policy Platform Demanding Reproductive Self-Determination for All of Us. If/When/How. Spring 2020.
- COVID-19’s Impact on Accessing Reproductive Health Care and Maternal Health
To help make the case, consult the most recent data and research on how reproductive and maternal health care are being impacted by COVID-19.- Surveying State Executive Orders Impacting Reproductive Health During the COVID-19 Pandemic. Guttmacher Institute. July 2020.
- The COVID-19 Outbreak: Potential Fallout for Sexual and Reproductive Health and Rights. Guttmacher Institute. March 2020.
- Early Impacts of the COVID-19 Pandemic: Findings from the 2020 Guttmacher Survey of Reproductive Health Experiences. Guttmacher Institute. June 2020.
- Safeguarding Maternal Health and Rights in the United States During the COVID-19 Pandemic. Center for Reproductive Rights and Columbia University.
- COVID-19 Abortion Bans Would Greatly Increase Driving Distances for Those Seeking Care. Guttmacher Institute. April 2020.
- Youth Reproductive Rights & the COVID-19 Response. Advocates for Youth, Center for Reproductive Rights, URGE, SIECUS, If/When/How. Spring 2020.
- Protecting and Promoting Women’s Rights Is Key to Defeating the Coronavirus at Home and Abroad. Center for American Progress. May 2020.
- Abortion as Essential Care during COVID-19
Abortion was under attack as Governors around the U.S. saw an opportunity to capitalize on a crisis to ban abortion care. These resources make it clear that abortion is critical, timely care, and that a global health pandemic and economic crisis are the exact wrong reasons to limit access to abortion care.- VIDEO: Abortion is Essential featuring SiX, ACLU, an abortion provider and OH State Rep. Tavia Galonski. State Innovation Exchange. April 2020.
- Abortion is Essential Care. Center for Reproductive Rights and Columbia University. Spring 2020.
- COVID-19 Underscores the Nonessential Nature of Abortion Restrictions. Center for Reproductive Rights and Columbia University. Spring 2020.
- How State COVID-19 Orders Can Impact Abortion Access. Center for Reproductive Rights and Columbia University. Spring 2020.
- Contact us at reproductiverights@stateinnovation.org for:
- Communications and messaging guides for abortion care and COVID-19
- State-specific research and support
- To convene or facilitate a briefing or strategy session with your legislative colleagues and state coalition partners
COVID Resources: Race, the Virus: Bias, Data, Testing and Impact
Existing demographic data has revealed the disproportionate health effects of the coronavirus on Black and Brown people, communities of color, and Indigenous people. However, comprehensive racial and ethnic data does not exist in every state nor are there uniform reporting guidelines across the country. In order to better address racial disparities, legislators are pushing for improved data collection, an investment in contact tracing programs, and greater transparency on racial impact.
Resources:
- General Information on Racial Disparities and Equity
- APM Research Lab demonstrates key findings on COVID-19 deaths based on race and ethnicity in the U.S.
- Community Catalyst summarizes the COVID-19-related health and economic challenges for communities of color
- An in-depth overview of COVID-19-related racial disparities
- Data for Black Lives issued a report with research on and policy demands for racial data transparency
- SiX led a webinar on “Principles for an Anti-Racist State Equitable Response to COVID-19” that discussed a paper from Center on Budget and Policy Priorities
- Improved Data Collection and Analysis
- PolicyLink developed policy recommendations for disaggregating data on race and ethnicity to advance a culture of health
- Examples of comprehensive racial data transparency bills from Massachusetts, New Jersey, and Michigan
- Contact Tracing Programs
- United States of Care: executive summary of state actions on contact tracing
- New York requires city contact tracers to be representative of the cultural and linguistic diversity of the communities they will serve
- Examples of appropriations bills that support contract tracing from Hawaii, Minnesota, and North Carolina
- Addressing Racial Disparities
- This comprehensive racial equity checklist from Community Catalyst includes policy options for addressing racial inequities in response to COVID-19
- Ohio and Massachusetts introduced bills that would require a racial impact and health disparities analysis for health-related initiatives and policies
- South Carolina developed a testing plan that emphasizes testing in rural and under-resourced minority communities, urban areas, and congregate living areas
COVID Resources: Preventing Evictions
Our nation is in the midst of a housing crisis, exacerbated by the COVID-19 pandemic. Under our nation’s system of racial capitalism, housing serves more as a financial asset or investment than a basic human right. The current system disproportionately harms working-class, Black, Indigenous, and communities of color (BIPOC)—leaving them out of both asset building opportunities and housing protections. Evictions already place a disproportionate harm on Black women and their families, who are almost four times as likely to be evicted as households led by white men. Housing stability has always been a civil rights issue that directly descends from our nation’s history of segregation and racist housing practices.
Now, with the pandemic and economic crisis already harming Black Americans and people of color at astonishing rates, inaction by policymakers will drastically intensify the housing crisis, destroy the lives of millions of people, and destabilize our entire nation.
As of September 4, there is now a federal eviction moratorium from the CDC that extends protections to some renters at risk of eviction for nonpayment of rent during the COVID pandemic. For more on this, see NLIHC for this overview of the moratorium and this FAQ for Renters. At-risk renters should contact their local legal aid offices, tenant associations, or local bar associations ASAP.
In addition to pressuring Congress to pass emergency rental assistance, broaden eviction preventions, and suspend rent and mortgage payments, what action can state lawmakers take?
First, see how your state ranks on Eviction Lab’s COVID-19 Housing Policy Scorecard. Then consider what immediate emergency measures your state needs to prevent mass evictions and what longer-term solutions should come next.
IMMEDIATE MEASURES
Whether by bringing legislation (if in session) or by pressuring the governor, these are key policies to consider to immediately put in place:
- Rent and Mortgage Cancellation
- Rent cancellation has been pushed at both the state and federal level
- At the federal level, H.R. 6515 would cancel all rent and mortgage payments
- Several states have also introduced legislation which would cancel rent for tenants financially harmed by COVID-19. Illinois, New York, and New Jersey all introduced legislation to cancel rent, and Massachusetts introduced legislation which would have placed a freeze on rent increases.
- Rent cancellation has been pushed at both the state and federal level
- Eviction freezes and moratoriums
- States across the country took action to place a moratorium on evictions either for the duration of the crisis or a shorter time period through executive, legislative, and judicial action. While the moratoriums prevented the immediate evictions of renters, they have been criticized by tenants and housing justice groups as simply differing an inevitable “avalanche of evictions”, without broader relief.
- State legislatures across the country passed legislation either extending, expanding, or establishing their own eviction moratoriums. Two of the stronger bills were passed in Massachusetts and Oregon.
- States across the country took action to place a moratorium on evictions either for the duration of the crisis or a shorter time period through executive, legislative, and judicial action. While the moratoriums prevented the immediate evictions of renters, they have been criticized by tenants and housing justice groups as simply differing an inevitable “avalanche of evictions”, without broader relief.
- Rental grace period/ Reasonable repayment plans: Once eviction moratoria lift, tenants who miss their rent payment will still be liable for unpaid rent, but few will be able to pay that rent all at once. Legislators should mandate that landlords provide reasonable rent repayment plans.
- Oregon HB 4213 gives tenants a six-month grace period following the end of the moratorium to pay the balance of unpaid rent
- Emergency rental assistance and cash directly to Americans:
- States like Pennsylvania, Illinois, Colorado, New Jersey, and New York have established rental and mortgage assistance funds to assist renters and homeowners struggling to make their housing payment
- Extend access to rental assistance funds to all people, regardless of immigration status.
- See NILC’s resources for more information.
- 8 USC 1621(b) creates an exception for emergency disaster relief and certain assistance programs
LONGER TERM
The national housing crisis will exist past the end of the pandemic, and we need systemic solutions to provide affordable housing and protect renters. These are key policies that states can pursue:
- Rent control and rent stabilization
- New York, California, and Oregon became the first states to pass statewide rent control legislation in 2019, limiting the amount landlords can increase rents year-to-year.
- Legislators Illinois, Massachusetts, and New Jersey each introduced rent control bills in 2020, while New York and California attempted to strengthen and expand their existing laws
- Just Cause eviction laws
- Just cause eviction extends protections to renters by limiting the reasons landlords can evict a tenant to failure to pay rent and material breach of a lease
- Cities like Seattle, Oakland, Berkeley all have just-cause protections, while New Jersey, California, and Oregon have enacted legislation at the state level.
- Homes for All
- Homes for All has emerged as a demand for renewed investment in publicly-owned, permanently affordable housing, also known as social housing.
- At the federal level, Homes for All legislation has been introduced that would construct 9.5 million units of public housing, and 2.5 million units of affordable, privately-owned housing.
- At the the state level, legislators in Maryland introduced legislation which would construct 2,000 units of permanently affordable, publicly-owned, mixed-income housing.
- Homes for All has emerged as a demand for renewed investment in publicly-owned, permanently affordable housing, also known as social housing.
- Take housing out of the rent court system
- Establish housing as a human right
- Local governments, like Dane County, WI, have passed resolutions to acknowledge housing as a human right, and other states like Hawaii, Connecticut, and California have attempted to pass legislation at the state level.
- Affordable housing trust funds; protect existing stock of affordable housing
- Change zoning laws
- The city of Minneapolis ended single-family zoning and increased the minimum zoning density in its 2020 comprehensive plan
- Oregon enacted legislation in 2019 to require cities over 10,000 people to allow duplexes on single-family zoned lots, and requires the city of Portland to allow quadplexes and “cottage clusters” on single-family zoned lots.
- Source of income as protected category
- Multiple states and local jurisdiction have banned landlords from discriminating against working-class tenants by making source of income a protected category. These protections often include social security, Temporary Assistance for Needy Families, housing vouchers, alimony, child-payments, and other public assistance programs
- Automatic moratorium on eviction filings, execution of writs, and utility shutoff during an emergency like a public health epidemic.
- Suppress court records to prevent the permanent “Scarlet E:” Evictions and eviction filings result in an adverse housing record for tenants. A statewide eviction moratorium should include a provision to suppress court records related to a tenant’s eviction and rental debt accrued due to pandemic-related hardship.
- Minneapolis and Portland have both limited the ability for landlords to screen tenants. Among the protections, landlords can not consider evictions which occurred over three years prior.
- Colorado passed legislation that suppresses eviction records while cases are proceeding, and removes them if a case is dismissed. Unfortunately, the eviction is not suppressed if the landlord wins and an eviction is ordered.
- Boost enforcement and penalties: Eviction law should prevent unlawful evictions and increase penalties for landlords who cut power, threaten their tenants, or otherwise attempt to push tenants out of their homes while eviction moratoria are in place.
- Develop rental relief funds
- Extend tenant cure periods
- Right to counsel for eviction cases and advice services
- Court-based programs and policies
RESOURCES:
To watch and listen:
- The Impending Eviction Crisis: Housing as Health Care and Racial Justice (June 25, 2019. Hosted by ABA Section of Civil Rights and Social Justice)
- Local Progress and SiX Network Call on Housing and Homelessness (April 5, 2020)
Organizations, online resources, and written materials:
- Eviction Lab
- Spreadsheet of eviction moratoria and utility shutoff changes from across the country
- State scorecards and policy explanations
- Housing and Health Care for All! Demands from the Movement 4 Black Lives
- National Housing Law Project. They offer a whole set of resources including:
- Summary and Analysis of Federal CARES Act Eviction Moratorium
- Model State Moratorium: This is NHLP’s model moratorium to stop all five phases of the eviction process, with provisions on late charges, landlord access to premises, and payment plans.
- Coronavirus Eviction Moratoria: Considerations and Best Practices is an NHLP analysis for federal, state, and local eviction moratoria.
- Emergency Rental Assistance Recommendations This NHLP resource highlights principles for emergency rental assistance administration at the federal, state, and local levels.
- Safe at Home: Non-Monetary Relief for Tenants During the COVID Emergency This NHLP document outlines a number of strategies besides rent relief to help tenants remain housed and to preserve stability during this time of economic uncertainty and health risk. (June 2, 2020)
- National Low Income Housing Coalition Has a great set of timelines and collection of federal and state actions.
- National Alliance for Safe Housing, COVID-19 Response Resources Provides links to a number of resources for advocates who serve survivors of domestic and sexual violence.
- Eviction Innovations: an an inventory of services being piloted and proposed to address the eviction crisis
- National Alliance to End Homelessness: Framework for an Equitable COVID-19 Homelessness Response
- National Law Center on Homeless and Poverty - COVID-19 Protections for Homeless Populations
- Policy Link: Centering Racial Equity in Housing
- Homes Guarantee: A National Home's Guarantee Briefing Book
COVID Resources: Immigration
Undocumented Immigrants make up a disproportionate share of frontline workers and are especially concentrated in high-risk industries such as food production, health care, and transportation. However, these same immigrant workers have been excluded from any economic relief included in the CARES Act and are unable to access unemployment insurance. To compound this devastating situation, Trump’s immigration enforcement machine continues to target undocumented residents and separate families at astounding rates, which has led to extreme health risks within immigration detention centers across the United States.
Resources:
- Economic relief for immigrant families: According to the Migration Policy Institute, the citizen restrictions in the CARES Act has excluded 15.4 million people from the $1,200 stimulus payments: 9.9 million undocumented immigrants, along with 3.7 million children and 1.7 million spouses who are either U.S. citizens or green-card holders.
- California’s Governor allotted $75 million in state disaster relief funds to provide undocumented state residents with one-time cash transfers of $500 per adult. Office of Governor Gavin Newsom, April 2020.
- Colorado’s legislature expanded the state’s Earned Income Tax Credit during the 2020 session to increase cash payments to low-income families and became the first state in the nation to include undocumented workers in the tax credit. Colorado General Assembly, July 2020.
- Municipalities such as Austin and Minneapolis have created funds to help low-income families who have been economically impacted by COVID-19 to pay rent or other expenses and specifically prioritize families who have been left out of federal relief efforts. Migration Policy Institute, April 2020.
- Healthcare for frontline workers: The Families First Coronavirus Relief Act passed by Congress in March authorized COVID-19 testing to be covered by Medicaid, leaving 3.7 million low-income, uninsured non-citizens without coverage for testing and treatment under Medicaid.
- California’s legislature expanded Medicaid access to undocumented immigrants under the age of 26. DHCS, January 2020.
- California’s legislature expanded Medicaid access to undocumented immigrants under the age of 26. DHCS, January 2020.
- Worker Health Protections: Six million immigrant workers are at the frontlines of keeping U.S. residents healthy and fed during the COVID-19 pandemic. While the immigrants represent 17 percent of the 156 million civilians working in 2018, they account for larger shares in coronavirus-response frontline occupations: 29 percent of all physicians and 38 percent of home health aides, for example. They also represent significant shares of workers cleaning hospital rooms, staffing grocery stores, and producing food.
- Paid Sick Leave: Twelve states, as well as Washington D.C. and Puerto Rico, have paid sick leave laws, which largely cover immigrant workers.
- Paid Family and Medical Leave: Eight states, and Washington D.C., have paid family and medical leave programs, which largely include immigrant workers and their families.
COVID Resources: Health Care
In addition to the risks to individuals’ physical health, the COVID-19 pandemic affects every health care system in the United States (medical, public health, insurance) and each of their corresponding workforces. State legislatures have a responsibility and opportunity to ensure that these systems are operating effectively and equitably for the health of all people.
Resources:
- Health Data
- CDC guidance on COVID-19 symptoms and protection are updated regularly (Spanish version)
- Kaiser Family Foundation keeps an up-to-date tracker of state data (cases, deaths, and tests)
- The American Public Health Association hosts a series of evidence-based webinars on the science behind COVID-19 for the benefit of policymakers, public health/health care officials, and the general public
- State Policy Trackers
- Create and download custom state policy reports on the Kaiser Family Foundation
- Select from several health care policy categories in NCSL’s state actions database for summaries of state legislation on COVID-19 (both bill content and legislative progress)
- Testing and Tracing
- Guidance for state governors on COVID-19 testing capacity and strategies for consideration from the National Governors Association
- The Association of State and Territorial Health Officials provide summaries of contact tracing legislation introduced in the states and key considerations for drive-through and mobile testing
- State examples: South Carolina developed a testing plan that emphasizes testing in rural and under-resourced minority communities, urban areas, and congregate living areas
- Telehealth
- State-by-state policy actions on telehealth compiled by the Center for Connected Health Policy
- KFF analysis, infographics, and examples of state efforts to expand telehealth under Medicaid
- State Examples:
- New Jersey, Colorado, and Rhode Island introduced legislation that would expand telehealth coverage for audio-only appointments
- New Jersey enacted a bill that waives cost-sharing for telehealth services
- North Carolina, Iowa, Rhode Island, and New Hampshire are examples of states that introduced bills on ensuring telehealth payment parity
- Support for Health Care Professionals
- Minnesota passed a comprehensive health care bill to support front-line workers and their work environments
- The Federation of State Medical Boards keeps up-to-date lists of the states that have waived in-state licensure requirements, modified CME requirements, and expedited licenses for retired physicians and medical schools in several states have expedited graduation to get new providers out into the workforce
- The Center for American Progress outlines why it is important to provide child care for health care workers and to remove barriers for immigrant medical workers during COVID-19
- Public Health officials and workers are facing heightened attacks as they work to protect the health of communities around the country prompting professional associations to call on elected officials for increased protections.
- Insurance Regulations and Coverage
- This comprehensive COVID-19 resource page from Community Catalyst includes policy options and messaging tools, including general and state-specific social media graphics
- Track state plan amendments and other administrative actions to address COVID-19 on KFF’s Medicaid Emergency Authority tracker
- The Commonwealth Fund’s map of state coverage policies has a dropdown of actions that go beyond the federal minimum or existing state standards
- 8 recommendations for Medicaid and CHIP from State Health and Value Strategies
- State Examples:
- Louisiana and New Jersey enacted similar laws that waives or lowers cost-sharing for COVID-19 testing and treatment
- Ohio introduced a bill that would temporarily waive certain Medicaid requirements and expand financial eligibility to 200% for adults
- North Carolina, South Carolina, Alabama, Kansas, and Florida made efforts to expand their state’s Medicaid plan
COVID Resources: Food Systems and Agriculture
Covid-19 demonstrated that the corporate food supply chain is one crisis away from failing, which puts communities at risk of being food insecure and could cause barriers for local farmers working to address the food needs of their community.
In order to ensure that communities are resilient in their ability to access food during a crisis, legislators should work to ensure that there is a sound regional and/or local alternative food supply chain with a plan to get food to those who need it while also ensuring that food and farm workers are adequately protected in their workplaces.
Resources
Support for Farmers
- Appropriate additional funds for their agriculture community. Here are bills from Vermont and North Carolina and Utah.
Local Food Infrastructure
- Designate farmer's markets as essential local service providers. Here's a list of states that have done this.
- Provide opportunities for increased local meat infrastructure. Oregon, North Carolina, New Mexico, Hawaii, Utah, Wyoming have all been working on bills to bolster local meat production to service small and independent farmers who are providing meat for their local communities.
- Create working groups to assess food security and a local food supply to bolster community resiliency. New York and Utah have both done this.
Food Security
- Use new flexibility in SNAP to respond to COVID-19 challenges. Here is an overview of what states can do and here is what New Jersey did to increase access to SNAP benefits.
- Provide additional resources for food access, particularly to underserved communities. Here is one example from Minnesota. Mississippi attempted a bill to include reimbursements to local municipalities for a variety of services including food delivery to senior citizens and other vulnerable populations. Pennsylvania has a bill that includes resources for a food hotline, food banks and additional SNAP benefits.
- Provide additional support for Food Pantries. Here is what Colorado did and North Carolina appropriated additional funds as part of an omnibus package to be split equally among food banks.
- Provide grants to local organizations to purchase local food (this helps farmers too). An example from Minnesota.
- Provide emergency food assistance to undocumented persons like California did.
- Allow school buses to use the eight-light system when making food deliveries to families with school-aged children, as was done in Vermont.
Farm & Food Worker Safety
- Appropriate funds for farmers to purchase PPE for farm and food workers. See this bill from New Jersey.
- Ensure that state information related to farm worker safety is communicated in both Spanish and English. Here is what Vermont did and this is the bill being considered in California.
- An Executive order from California Governor Newsom requiring paid sick leave for workers, while Michigan Governor Gretchen Withmer issued an Executive Order on migrant housing camps during COVID-19. .
COVID Resources: Education
The Department of Education and the White House are pressuring schools to open in the fall but are providing little to no guidance for doing so safely, threatening to withhold funding for states or districts who do not comply. While the pressure to reopen schools in the fall grows, so does the number of coronavirus cases, leaving school districts and states scrambling to keep up with a quickly changing situation. States will have to consider how to keep all students, teachers, faculty and support staff safe—not just those in wealthy communities—through budget considerations, remote learning options, financial aid, school meals, testing and tracing, and more.
General Resources
- The Education Commission of the States has information, policy considerations, and examples from states in the following education topic areas:
- Assessments and Accountability
- Broadband and Technology Access
- Continued and Future Learning
- Early Learning
- Finance
- Instructional Time and Grade Promotion
- Postsecondary
- Remote/Virtual/E-Learning
- Special Education
- Student Health and Wellness
- Teachers
- Workforce
Resources: K-12
- Guidance for Reopening K-12
- National Education Association’s guidance for reopening has recommendations for school administrators and teachers (as opposed to state legislators) but will help legislators understand the challenges, risks and opportunities for intervention.
- American Federation of Teachers has a guide to reopening. PDF pages 12-14 has recommendations and information for legislators.
- CDC guiding principles for evaluating risk in school setting options.
- See a guide on school buildings and repurposing large common areas and calculating social distance spaces in classrooms: School Buildings and Social Distancing: A Downloadable Guide
- Broadband and Technology Access
- National Digital Inclusion Alliance has a list of state government initiatives to address access to the internet during Covid-19.
- Most states plan to use Governor’s Emergency Education Relief funds to expand or continue meeting student needs to access reliable, high speed internet and devices. Legislators can see how other states have used their funds and other opportunities to expand broadband.
- Urge the Federal Communications Commission to take measures to secure broadband access for those impacted by COVID-19 like New Jersey did.
- Invest in broadband activity to significantly increase rural broadband capacity for distance learning, remote working, telehealth and other critical services like Vermont did.
- Invest in existing rural cooperatives in order to support the expansion of broadband to rural communities. This is what Mississippi did.
- Establish a grant program for broadband expansion like was done in Minnesota and Mississippi.
- Food Security for Students K-12
- USDA’s Food and Nutrition Services response to Covid-19 includes lists of child nutrition programs, waivers, parent/guardian meal pick-ups, and other nationwide waivers for students (including students who receive free and reduced lunches).
- Funding for K-12
- For background, see What Congressional Covid Funding Means for K-12 Schools
- The CARES Act provides $13.5 billion in emergency aid for K-12 schools that may be directly impacted by how individual states cut their own education spending.
- An interactive tool that can be adjusted to look at any budgeting scenario: School Funding; what to expect and what states can do.
- Covid-19 Legislative responses: Interactive map to track education bills by state. Includes tracking for all education-related state action regarding the outbreak.
- Teacher Resources
- American Association of Colleges for Teacher Education (AACTE) state policy tracking map that is useful for highlighting present changes to policies for initial licensure, clinical experiences, hiring and induction, and state standards to support EPPs and teacher candidates during Covid-19.
- A guide to community conversations on reopening schools safely. Also includes information on bringing the community together around the conversation.
Resources: Institutions of Higher Education (IHE)
- Guidance for Reopening Institutions of Higher Education (IHE)
- CDC guidance: IHE general setting recommendations and on-campus housing settings including for lowest risk, more risk, and highest risk options.
- The CARES Act provides almost $14 Billion directly to IHE. ACE simulated distribution of funds that would be allocated by The Department of Education.
- Higher Education policy considerations from NCSL includes in-person vs. remote learning options, financial considerations, admissions and enrollment, and more, and can be found here.
COVID Resources: Rural Communities
The spread of COVID-19 took longer to reach rural America, however, once it did, it highlighted some basic infrastructure needs that are lacking for rural residents. During COVID-19, rural people have faced many of the same challenges as urban residents, yet have struggled to access adequate information, medical services, food and medicine due to an erosion of public investment in rural infrastructure.
Resources:
- General
- The CDC has compiled a list of resources that address the unique challenges of rural communities. You can find that list here.
- The CDC has also compiled a list of resources for tribal communities. That list can be found here.
- Broadband
- Urge the Federal Communications Commission to take measures to secure broadband access for those impacted by COVID-19 like New Jersey did.
- Invest in broadband activity to significantly increase rural broadband capacity for distance learning, remote working, telehealth and other critical services like Vermont did.
- Invest in existing rural cooperatives in order to support the expansion of broadband to rural communities. This is what Mississippi did.
- Establish a grant program for broadband expansion like was done in Minnesota and Mississippi.
- Rural Health Care
- For background, see this paper that looks at the urban - rural mental health disparities in the US During COVID-19. You can access it here.
- Designate funds specifically for rural health care and services. North Carolina did this as part of an omnibus bill.
- Appropriate funds to cover the costs incurred by rural hospitals as a result of responding to the COVID-19 pandemic. This is what Mississippi did.
- Reimburse rural health care providers for expenses incurred for telehealth services. This is what Colorado did.
- Rural Small Business
- When creating small business loan or grant programs, prioritize applicants who come from rural areas, women- or minority-owned businesses or businesses owned by veterans. See this bill in Colorado as an example.
- Rural Homelessness
- The National Healthcare for the Homeless Council has a list of resources that are unique to addressing homelessness in rural areas. You can access the resources here.
- For background, the US Interagency Council on Homelessness has a pre-COVID report that discusses the unique challenges of addressing homelessness in rural communities. You can access the report here.
- Ensure that supportive housing services are extended to rural communities, where people have less access to nonprofits and other easily accessible social services. This is what Colorado attempted.
Paid Sick Leave Policy Playbook Supplement and Polling Memo
See SiX's new resources: Paid Sick Days Policy Playbook Supplement and Pre-Session Polling on Paid Sick Leave.
Over 33 million people in the US do not have access to paid sick leave, and this has a disproportionate impact on low and moderate wage workers. Access to paid sick days is even more critical in light of the COVID-19 pandemic. The coronavirus health crisis has revealed the need for access to paid sick leave more than ever — particularly for lower wage, Black, or Hispanic workers and working mothers whose incomes and families are more directly affected by the coronavirus. Fortunately, states without robust paid sick leave laws are taking action to help increase access.
Since we first released our Paid Sick Days Policy Playbook in 2016, the number of states requiring employers to provide paid sick days has jumped from 5 to 14. In light of these changes, and folks’ urgent need for paid sick leave access, SiX has released the Paid Sick Days Policy Playbook Supplement. In addition to reflecting new paid sick leave legislation, SiX is releasing Pre-Session Polling on Paid Sick Leave which evidences the high public support for paid sick leave in three states where legislatures have yet to act — Florida, North Carolina, and Pennsylvania.
Abortion is Essential Healthcare
Crisis does not erase inequality. It lays it bare.
We've seen how low-income communities of color, have been hardest hit by the COVID-19 crisis. And we've seen how anti-abortion officials are pulling out all the stops to use this crisis as an excuse to ban abortion.
During this unprecedented pandemic, our elected officials should be focused on our families’ health and safety. It’s unconscionable that politicians would use a national crisis to try to deny critical health care to anyone. Now more than ever we should be coming together as communities to make sure everyone can safely get the healthcare they need, not actively working to deny our neighbors care--including and especially abortion care.
That's why SiX Repro Team worked with legal, medical, and legislative experts to release a 19-minute video on abortion as essential healthcare.
Legislating in a Pandemic: Transparent & Remote Governance
Contents
As a consequence of the COVID-19 pandemic, a growing list of state legislatures have postponed session and legislators themselves have started testing positive for the virus. While some states quickly moved to remote sessions and amended open meeting laws to prevent crowds at state capitols, many are struggling to make this transition in a transparent and accessible manner. Other states have limited or no government continuity plans in place, and some are grappling with constitutions or state laws that appear to prohibit remote governance and voting altogether.
While this is an unprecedented time in American history, where preserving the public health and the continuity of government collide, it will not be the last time that legislatures must shift how they do business. At extraordinary moments like today, state legislatures must adopt methods of flexible, remote governance while prioritizing transparency and public access.
State legislatures adapting to the new reality of governance can learn from early experiences, challenges, and critiques that other state and local governments have faced in the early weeks of the COVID-19 pandemic. We recognize that shifting your state’s approach to governance will not be easy and that there will be hiccups and mistakes along the way. To anticipate and overcome these challenges and to find viable solutions to keep government working and accessible, we encourage state legislators to work with their executive branch counterparts, state technology officers, local officials, state/local advocates, peer legislators from across the country, and of course, SiX.
After reading this blog, email democracy@stateinnovation.org with your remaining questions and your asks for direct support. We are all taking this transition one step at a time, and we want to meet you and your state where you are.
Considerations for Transparent & Accessible Governance in Emergencies
Common Cause released a strong set of transparency recommendations for national, state, and local officials to follow when transitioning to remote forms of governance and adjusting open meeting laws. SiX strongly recommends that state legislatures consider these guidelines when setting up new, emergency governance structures:
- “Postpone non-priority government action until the state of emergency has ended.
- Provide widespread public notice of scheduled government proceedings.
- Provide public access to observe government proceedings via live and recorded video available on government websites. [This requirement must apply in cases where public officials continue to meet in person but the public cannot be present for public health purposes.]
- Provide public ability to participate in government proceedings via videoconference where possible and, at a minimum, via telephone and submission of written testimony.
- Require all members of a public body participating in a meeting or proceeding to be clearly audible and visible at all times, including to the public.
- At the start of the meeting, require the chair to announce the names of any members of the public body participating remotely.
- In the event audio or video coverage of a proceeding or meeting is interrupted, require the presiding official to suspend discussion until audio/video is restored.
- Require all votes to be roll call votes.
- At the beginning of any executive session, require all members of the public body to state that no other person is present or can hear them.
- Record all open sessions of meetings and make such recordings available to the public via government website.”
SiX also recognizes that, even by following the above principles, a rapid transition to remote governance can and will exacerbate barriers to participation in governance for many community members. While continuity of governance through remote voting and committee hearings is key as this crisis evolves, legislators must consider how this transition will impact equitable access for marginalized constituents and work to find creative solutions. This includes (but is not limited to) ensuring access for people with:
- poor internet connectivity;
- low technology proficiency or access;
- disabilities (e.g. vision or hearing loss); and
- limited English proficiency and lack of access to translation.
Examples of Remote Governance Transitions
Below we highlight several examples of rule changes, statutory changes, and executive orders that have enabled states to adapt and govern flexibly during the COVID-19 pandemic. Note that these are not perfect examples and many could benefit from stronger or clearer transparency provisions in line with the above guidance from Common Cause. That said, we hope sharing these examples offers a helpful base of information for other states to analyze and build on.
We will continue to update this list with new examples as more states make this transition and learn from each other.
Vermont
Vermont legislators and other public bodies must now convene electronically and provide virtual public access to all meetings. Legislators are primarily using Zoom to convene and deliberate. (This Tweet from a Vermont government reporter offers a taste of what remote legislating looks like!)
Sec. 5. LEGISLATIVE INTENT; COVID-19 RESPONSE AND OPEN MEETINGS BILL AS PASSED BY THE HOUSE AND THE SENATE
It is the intent of the General Assembly that during the continued spread of coronavirus disease 2019 (COVID-19) in the State of Vermont public bodies should organize and hold open meetings in a manner that will protect the health and welfare of the public while providing access to the operations of government. Public bodies should meet electronically and provide the public with electronic access to meetings in lieu of a designated physical location. Accordingly, this act sets forth temporary Open Meeting Law procedures in response to COVID-19.
Sec. 6. OPEN MEETING LAW; TEMPORARY SUSPENSION OF DESIGNATED PHYSICAL MEETING LOCATION REQUIREMENTS
(a) Notwithstanding 1 V.S.A. § 312(a), during a declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19:
(1) a quorum or more of the members of a public body may attend a regular, special, or emergency meeting by electronic or other means without being physically present at a designated meeting location;
(2) the public body shall not be required to designate a physical meeting location where the public may attend; and
(3) the members and staff of the public body shall not be required to be physically present at a designated meeting location.
(b) When the public body meets electronically under subsection (a) of this section, the public body shall use technology that permits the attendance of the public through electronic or other means. The public body shall allow the public to access the meeting by telephone whenever feasible. The public body shall post information on how the public may access meetings electronically and shall include this information in the published agenda for each meeting. Unless unusual circumstances make it impossible for them to do so, the legislative body of each municipality and each school board shall record its meetings held pursuant to this section.
(c) In the event of a staffing shortage during a declared state of emergency under 20 V.S.A. chapter 1 due to COVID-19, a public body may extend the time limit for the posting of minutes prescribed in 1 V.S.A. § 312(b)(2) to not more than 10 days from the date of the meeting.
Rhode Island
On March 16, Rhode Island Governor Gina Raimondo issued Executive Order 20-05 which relieved state/local officials from open meeting law prohibitions on the “use of telephonic or electronic communication to conduct meetings.” Though the Executive Order provided for virtual public access to government meetings, technical challenges and ambiguities to these rules became apparent in just the first week. Common Cause Rhode Island and the American Civil Liberties Union (ACLU) of Rhode Island quickly sent a letter to state officials urging modifications to the Executive Order including: clarifications to transparency requirements for government bodies that continue to meet in person but are no longer accessible to the public (i.e. because of closed capitols) and protocols to safeguard public participation in the event of technological glitches or connectivity issues (i.e. dropped video conference or conference call lines). Other states can anticipate and learn from the Rhode Island experience.
Pennsylvania
Pennsylvania lawmakers enacted multiple pieces of legislation to enable remote governance. Legislators in both the House and Senate are now able to vote on legislation and participate in committee hearings remotely. As of March 26, 2020, the State Capitol remained open for (in-person) session but a large portion of legislators intentionally participated remotely via video chat to enable social distancing.
2020 Pennsylvania HR 834 RESOLVED, That a member who is not present in the Hall of the House may designate either the Majority or Minority Whip to cast the member's vote on any question as to which there has been consultation between the Majority Leader and the Minority Leader; and be it further
RESOLVED, That, after consultation between the Majority Leader and the Minority Leader, if the process permitted for designated voting under this temporary rule is not agreed upon, the vote shall be cast pursuant to the Rules of the House of Representatives in existence on March 15, 2020; and be it further
RESOLVED, That a designation shall be accomplished by filing an attestation with the Chief Clerk which affirms that the member will not be present in the Hall of the House and identifies either the Majority or Minority Whip as the designee; and be it further [...]
RESOLVED, That, unless amended or revoked by the House, the temporary rules adopted in this resolution shall expire when the declaration of disaster emergency issued by the Governor on March 6, 2020, is terminated by executive order, proclamation or operation of law.
2020 Pennsylvania S.R. 318 RESOLVED, That, notwithstanding Rule 14(h) of the Senate, members may remotely participate in committee meetings as follows: remote participation means simultaneous, interactive participation in a committee meeting by committee members not physically present at the location of the meeting, through means of communication technologies designed to accommodate and facilitate such simultaneous, interactive participation; committee members participating remotely shall be counted for the purpose of determining a quorum; a quorum shall be established through a roll call; and technology employed for remote committee meetings must safeguard the integrity of the legislative process and maintain the deliberative character of the meeting by providing for simultaneous, aural and verbal communication among all participants.
Maine
Before adjourning early for 2020, Maine lawmakers enacted legislation to allow public bodies covered by the state’s open meeting law to conduct business remotely provided that the public is given advance notice, all participating members are able to hear and speak to one another, there is a clear method of electronic public participation, and all official votes are taken by roll call.
2020 Maine LD 2167 §403-A. Public proceedings through remote access during declaration of state of emergency due to COVID-19
1. Remote access. Notwithstanding any provision of law or municipal charter provision or ordinance to the contrary, during a state of emergency declared by the Governor in accordance with Title 37-B, section 742 due to the outbreak of COVID-19, a body subject to this subchapter may conduct a public proceeding through telephonic, video, electronic or other similar means of remote participation under the following conditions:
A. Notice of the public proceeding has been given in accordance with section 406, and the notice includes the method by which the public may attend in accordance with paragraph C;
B. Each member of the body who is participating in the public proceeding is able to hear and speak to all the other members during the public proceeding and members of the public attending the public proceeding in the location identified in the notice given pursuant to paragraph A are able to hear all members participating at other locations;
C. The body determines that participation by the public is through telephonic, video, electronic or other similar means of remote participation; and
D. All votes taken during the public proceeding are taken by roll call vote.
2. Application to legislative proceedings. This section does not apply to public proceedings of the Legislature, a legislative committee or the Legislative Council, except that while the state of emergency as set out in subsection 1 is in effect, the Legislature, a legislative committee or the Legislative Council may restrict attendance by the public to remote access by telephonic, video, electronic or other similar means. This section also does not apply to town meetings held pursuant to Title 30-A, section 2524 or regional school unit budget meetings pursuant to Title 20-A, section 1483.
3. Repeal. This section is repealed 30 days after the termination of the state of emergency as set out in subsection 1.
Nebraska
On March 17, 2020, “Governor Pete Ricketts issued an executive order [(Executive Order No. 20-03)] to permit state and local governmental boards, commissions, and other public bodies to meet by videoconference, teleconference, or other electronic means through May 31, 2020. The Governor’s order stipulated that all such virtual meetings must be available to members of the public, including media, to give citizens the opportunity to participate as well as to be duly informed of the meetings’ proceedings. The Governor’s order did not waive the advanced publicized notice and the agenda requirements for public meetings [(set forth in (Neb. Rev. Stat. § 84-1411)].”
New Jersey
The New Jersey legislature enacted a fairly simple statute to allow lawmakers to use technology or electronic means to conduct business if the Governor has declared a state of emergency. It does specifically outline transparency requirements. Lawmakers simultaneously enacted a law that allows local government bodies to govern remotely as well (see 2020 New Jersey A 3850).
2020 New Jersey A 3852
b. All sessions of the Legislature shall be held at Trenton or, on a temporary basis, for ceremonial or commemorative purposes or, notwithstanding section 1 of P.L.1963, c.118 (C.52:1-1.1), by reason of emergency or other exigency, at such other locations in the State as shall be designated by the Legislature by concurrent resolution.
c. During a period of emergency or exigency, as determined by the Governor pursuant to the laws of this State or by the Legislature pursuant to concurrent resolution, the Legislature may use any technology or electronic means to conduct its business or otherwise carry out its purposes, or to comply with the requirements of paragraph 6 of Section IV of Article IV or, for the purpose of ensuring the continuity of governmental operations, of paragraph 4 of Section VI of Article IV of the Constitution of the State of New Jersey.
Texas
On March 16, 2020, Texas Governor Greg Abbott suspended provisions of the state’s open meeting law that requires “government officials and members of the public to be physically present at a specified meeting location,” while emphasizing key transparency provisions for remote meetings. According to the Governor’s office:
- “Members of the public will be entitled to participate and address the governmental body during any telephonic or videoconference meeting.”
- “To hold a telephonic or videoconference meeting, a governmental body must post a written notice that gives the public a way to participate remotely, such as a toll-free dial-in number, and that includes an electronic copy of any agenda packet that officials will consider at the meeting.”
- “A governmental body must provide the public with access to a recording of any telephonic or videoconference meeting.”
The directive also allows state and local officials to contact the Texas Department of Information Resources for information and support setting up teleconferences and video conferences. Governor Abbott invoked emergency authority under Texas Gov. Code § 418.016 to change these requirements.
Reads & Resources
- During COVID-19 State of Emergency, Transparency and Public Access to Government Proceedings Must Be Maintained, Common Cause, 3/18/20
- Letter to Rhode Island Governor Gina Raimondo Re: EO 20-05, Common Cause and ACLU of Rhode Island, 3/19/20
- As Lawmakers Fall Ill, Congress and State Legislatures Must Enact Continuity Plans, Demand Progress
- Memo: Continuity of Legislatures, Daniel Schuman, Demand Progress Policy Director, 3/17/20
- Legislative Sessions and the Coronavirus, National Conference of State Legislatures (NCSL)
- Continuity of Legislature During Emergency, NCSL
- States Suspend Legislatures Without Passing Emergency Coronavirus Legislation. Could Remote Voting Provide a Fix?, The Intercept, 3/19/20
- Virus Concerns Lead to 'Public' Meetings Without the Public, New York Times, 3/21/20
- States Adapt Governance and Public Access to Telecommuting in Wake of Coronavirus, CT Examiner, 3/19/20
COVID-19 Repro Resources
In this urgent global health pandemic, anti-abortion lawmakers are once again playing politics with people's lives and health, and there are very real reproductive health impacts and needs this moment presents.
Click here for general RFLC talking points on the coronavirus.
Important: Here are some issues that you should talk to your repro coalition and abortion and family planning providers about. In some states, they may want public support and in other places, it may be harmful to raise these issues at all, even within the administration or with other, less friendly, legislators or officials. Your support of reproductive health care is crucial at this time. Please check in with the state coalition organizations and reproductive health care providers to see how best you can support them during this difficult time, and we encourage you to reach out to us to connect you if you don’t already have an existing relationship.
- Ensure patients can get the reproductive health care they need. Abortion is an essential and time-sensitive procedure.
- After the ban was briefly lifted, Texas will again be allowed to implement its temporary ban on abortions "not medically necessary to preserve the life or health" of the patient as part of the state's directive suspending "non-essential" medical procedures amid the coronavirus pandemic. Read more.
- The coronavirus pandemic is deepening the divide on abortion access between blue and red states by sparking a debate over whether the procedure is medically essential. Read more. And find an updated list on where states stand from Rewire News here.
- In Massachusetts, a memorandum shared this week clarifies what constitutes a “nonessential, elective invasive procedure” that should be postponed or canceled while Massachusetts is under a state of emergency. Abortion care was classified as an essential procedure. Read more.
- In Michigan, an executive order was issued classifying pregnancy and pregnancy related procedures as essential. Read more.
- In New Jersey, an executive order explicitly includes family planning & abortion care services as essential services. Read more.
- The American College of Obstetricians and Gynecologists, along with seven other reproductive health organizations, issued a statement deeming abortion as an essential service. Read more.
- The National Abortion Federation (NAF) calls on leaders to ensure that outpatient abortion clinics can remain open and urges hospitals to continue to provide abortion care. Read more.
- In reality, both complications and emergency department visits related to abortion care are exceedingly rare as this research from Advancing New Standards in Reproductive Health illustrates.
- Ask your state’s coalition how court closures may impact young people seeking care in states that have parental involvement requirements: More than half of states have such requirements for young people seeking abortion care and provide access to judicial bypass alternatives.
- Consider how existing telehealth laws and services in your state might be helping or harming access to reproductive health care including abortion. Seventeen states ban telehealth for abortion, and the urgency of expanding telehealth has grown considerably. There is no reason other than politics to exempt medication abortion from telehealth services.
- As Rewire News reports, A visit to a primary care doctor or OB/GYN to get something relatively routine, like a birth control prescription, will likely take a backseat during the COVID-19 outbreak, as cities go into various states of lockdown and hospitals brace for an overload of patients. Read more.
- Click here for a fact sheet from the EMAA Project on how telehealth can help improve access to medication abortion.
- Guttmacher Institute offers a policy review of how telehealth can improve access to abortion here.
- Ibis Reproductive Health provides issue briefs here which explains how telehealth models have expanded access to abortion, and here which describes the safety, effectiveness, and satisfaction with telemedicine for medication abortion.
- Economic uncertainty and reproductive health care: As Americans consider facing new economic challenges, remember that all health insurance, public and private, should cover all reproductive health care needs, including abortion. Work to ensure your state’s Medicaid program and public employees’ health insurance covers abortion care and that private insurers do the same.
- The Guttmacher Institute updated their overview of where state funding of abortion under Medicaid stand. You can find your state here.
- All* Above All unites organizations and individuals to build support for lifting the bans that deny abortion coverage. Click here to learn more about their campaign to restore public insurance coveragefor abortion.
- Stay vigilant. Extremist legislators are still advancing outrageous abortion restrictions and bans despite a global pandemic.
- State Lawmakers Aren’t Letting the Coronavirus Stop Their Crusade Against Abortion Rights
- For full COVID-19 coverage from Rewire News, click here.
Fighting Back Against Anti-Transgender Legislation in the States
The bad news: Across the country, there's been a rise in hateful legislation that attacks the basic dignity and humanity of transgender youth.
The good news: These bills have already been stopped in states including South Dakota and Florida, and there are resources to help in every state!
The bottom line? Transgender young people know who they are and all of the data shows that when they are affirmed in their gender they have comparable outcomes to their peers. By contrast, when denied treatment and affirmation, transgender people experience high rates of suicidality and negative health outcomes. These bills are based on false and/or deliberately misleading notions of health care for transgender youth and on fear of trans inclusion in public life.
Please reach out if you would like support defeating these bills in your state.
Anti Trans Bill in the States: A Conversation
Jessie Ulibarri, SiX Co-Executive Director teamed up with Chase Strangio from the ACLU, Katrina Karkazis from Yale University and Florida State Rep. Carlos Smith for a conversation about these bills. Watch or listen below.
Inspiration from South Dakota and Florida
Check out this video of FL Rep. Carlos Guillermo Smith taking down the false claim that care for transgender youth is experimental or unproven:
As with any issue, stories are the most powerful messengers. If you have five minutes, check out this story from 17-year-old Quinncy Parke, one of the many heroes who helped stop South Dakota's #HB1057, which sought to ban transition-related care like puberty blockers and hormone replacement therapy for trans minors.
Resources
- Anti-Transgender Bills Fact Sheet (ACLU)
- LGBT rights bill tracker (ACLU)
- Anti-trans bill tracker (Equality Federation)
- International Olympic Committee Trans Policy
- NCAA Statement on Inclusion of Trans Athletes
- U Sport Canada Policy (USport is the collegiate level sports governing body in Canada)
- Women’s Sports Foundation Inclusion Statement for Trans and Intersex Athletes (WSF was founded by Billie Jean King and is the major advocate for women in sport in the US)
- Athlete Ally's FAQ on Trans Inclusion In Sports
- The Truth About Trans Athletes (Men's Health)
- Andraya Yearwood Knows She Has the Right to Compete (Bleacher Report)
- CT High School Track Athletes Respond to Discrimination Complaint (Boston.Com)
- Stop Talking about Testosterone, There’s No Such Thing as ‘True Sex’ (The Guardian)
- Don’t Believe Everything You Read About Trans Women in Sports (Penguin Random House)
- Trans Athletes Welcomed on Teams Despite Hostile State Bills (NewNowNext)
Restoring A Fair Workweek
State Policies to Combat Abusive Scheduling Practices
By the Center for Popular Democracy (CPD) and SiX
Today a majority of working Americans – over 80 million people – clock into a job with an hourly wage. As millions of families benefit from higher minimum wages (thanks to the work of many of you!), these victories are undermined by unstable work hours. Many hourly workers are expected to be available 24/7 to work part-time jobs with no guaranteed hours, and experience huge fluctuations in weekly income.
That's why we've teamed up with the Center for Popular Democracy (CPD) to bring you resources on how you can restore a Fair Workweek for workers in your states.
See below for a new policy brief, video and audio interviews with experts, an example op-ed, and sample social media.
Download the brief here.
We all need a workweek we can count on – one that allows all of us to care for our families, stay healthy, and get ahead. This new policy brief outlines the problem, the research, and the ways to create new work hour protections that ensure that hourly workers at large service-sector chains have a greater voice in their workweek, predictable schedules, and the opportunity to work full time.
Also check out these video and audio interviews on Fair Workweek legislation that break down research on the problem, policy reforms, and legislative strategy:
Protecting the Power of the Ballot Initiative
Table of Contents
The SiX Democracy Project is teaming up with the Ballot Initiative Strategy Center (BISC) to help state legislators protect the ballot measure process and champion direct democracy.
The resources below highlight why you, as a state legislator, should care about this important tool for change and how you can identify and disrupt common tactics conservatives deploy to undermine direct democracy.
A Video Guide for Legislators: Protecting the Power of the Ballot Initiative
BISC State Legislative Manager, Jaspreet Chowdhary, introduces us to ballot measures, reviews major progressive policy wins at the ballot box, and outlines common tactics conservatives deploy to undermine direct democracy.
Ballot Measure Basics
Ballot measures, specifically citizen initiatives, are direct democracy – a place where eligible voters can make decisions about policies that impact their daily lives. Advocates use ballot measures to win public policy that has stalled under the dome, apply pressure, raise awareness about an important topic, or change the underlying narrative about an issue. Here are a few quick resources to get legislators up to speed on ballot measures:
Legislative Threats to Direct Democracy
Legislative threats to direct democracy are on the rise. In 2019, there were more legislative attacks on the ballot measure process than the previous two years combined. 2020 is on track to be another record breaking year. The resources below highlight common tactics used to undermine direct democracy and how legislators can evaluate proposed changes to the ballot measure process.
- Trends and Threats to the Ballot Measure Process
- Evaluation Factors for Legislation that Changes the Ballot Measure Process
- 2018-2019 Legislative Session Recap
Five Ways Legislators Can Learn More & Support Ballot Measures
- When considering changes to your state’s ballot measure process, check with local progressive allies, BISC, and SiX to make sure you don’t inadvertently create barriers to direct democracy.
- Help advocates draft language for ballot measures that is politically and legally sound. When legislators and advocates team up, ballot measures are more likely to withstand challenges and less likely to be undermined.
- Email democracy@stateinnovation.org and bisc@ballot.org to learn more about your state’s ballot measure process, threats, and how to fight back.
- Become a SiX Democracy Champion. Join a cohort of over 200 legislators from all 50 states who have committed to championing reforms for an equitable, inclusive, and participatory democracy – with dedicated policy, messaging, and strategy support from SiX. Visit stateinnovation.org/democracy to learn more and join the fight.
- Join the BISC listserv to receive the latest news on ballot measures, ballot.org.
The Census Is a Year Away: How State Legislators are Ensuring a Fair & Accurate Count
DENVER, Colo. – Advocates across the nation are recognizing April 1, 2019, as Census Day of Action, marking a year until the 2020 Census begins. Every ten years, the federal government conducts a census to track changes in population and demography, and this data is used for important determinations related to how federal, state, and local actors allocate their resources, essential public research, and the determination of future political representation. State legislators play a crucial role in ensuring that all people count.
Census data determine the allocation of more than $800 billion in annual federal funding and are often used in state and local policy making, decision making, and research. An inaccurate census in 2020 would jeopardize funding for a range of programs and services like fire departments, highways, hospitals, and the national school lunch program. It would also compromise crucial supports for all communities – white, black, and brown alike. Census data are also used for the processes to draw local, state and federal political maps – known as reapportionment and redistricting – and therefore are vital to advancing a fair and representative democracy.
“Progressive lawmakers across the country are using their voices and their positions to ensure every single resident in their state is counted, fairly, accurately and without fear in 2020,” said SiX Executive Director Jessie Ulibarri. “State legislators recognize that critical resources and electoral representation are at stake for their communities. We recognize that all people must count and applaud legislators who are dedicating resources to reach hard-to-count groups such as communities of color, low-income communities, immigrants, and young children.”
Below is an overview of various state legislation to support a fair and accurate census. So far this year, at least 59 bills from 25 states have been introduced to support 2020 Census preparation and participation. Most bills aim to do one or more of the following:
- Authorize state Complete Count Committees
- Fund Census outreach programs with an emphasis on hard-to-count communities
- Condemn the inclusion of the citizenship question
- End prison gerrymandering
State Complete Count Committees (CCCs): CCCs are encouraged to reflect each state’s diversity and will work to raise awareness of the Census, develop messaging plans tailored to their constituents, identify and engage hard-to-count communities, and motivate full participation in 2020.
- There are currently at least 14 bills from eight states that would establish state CCCs (Connecticut, Florida, Indiana, Massachusetts, Maryland, Nebraska, Nevada, Oklahoma, Texas, and West Virginia). These are in addition to the nearly 20 states that have successfully established CCCs through legislation, executive order, or a combination of the two over the last two years.
- A notable bill in Massachusetts would create a Massachusetts Census Equity Commission with a particular focus on undercounted communities. The bill proposes a diverse and distinctive set of membership requirements, including appointees from the Senate Black and Latino Caucus and House Asian Legislative Caucus; representatives from agencies and organizations serving refugees and homeless persons; a representative from the Wampanoag tribe; and youth, elderly, and renter representatives.
Citizenship Question: Perhaps the most visible and controversial aspect of 2020 Census preparation has been the Trump administration’s last-minute attempt to add an untested citizenship question—a move that would depress participation by noncitizens and mixed-immigration-status households and reduce census accuracy.- Legislators in Georgia, New Mexico, Nevada, and Pennsylvania have introduced resolutions this year that declare strong opposition to the citizenship question and urge the federal government not to include it on the 2020 questionnaire.
Fund the Census and Reach Hard-to-Count Communities: Legislators across the country are proposing substantial appropriations for census education and outreach efforts that target hard-to-count communities. By funding robust outreach and preparation today, states can secure millions—or possibly billions—of federal dollars in the future.
- A bill recently introduced in Colorado (CO HB19-1239) would establish a 2020 Census outreach grant program with a budget of $12 million to fund local governments and community organizations “to conduct 2020 census outreach, promotion, and education to focus on hard-to-count communities in the state and to increase the self-response rate and accuracy of the 2020 census.”
- Illinois lawmakers have proposed at least six bills that would appropriate substantial funding for census outreach and education efforts. Proposed appropriations range from $17 million to $33 million.
- Over the last two years, the California legislature has appropriated over $100 million dollars for census activities through several bills.
- Minnesota legislators (2019 MN HF 1644) are working to ensure that Census Bureau employees have access to apartment buildings and other residential facilities. Renters and individuals living in multi-unit buildings are often hard-to-count, and are therefore undercounted, in the census
Ending Prison Gerrymandering: The practice of counting incarcerated Americans as residents of the town where they are imprisoned rather than in their home community distorts local and state representation and leads to a hidden transfer of political power from urban to rural areas.
- At least 15 bills from 11 states have been introduced that would end prison gerrymandering and count incarcerated individuals at their last known home address. These bills have been proposed in Arizona, Connecticut, Illinois, Kentucky, Louisiana, Oregon, Pennsylvania, Rhode Island, and Texas, and have already passed one legislative chamber in New Jersey (2019 NJ S 758) and Washington (2019 WA SB 5287).
- Legislators in Georgia, New Mexico, Nevada, and Pennsylvania have introduced resolutions this year that declare strong opposition to the citizenship question and urge the federal government not to include it on the 2020 questionnaire.