Passing Illegal Legislation

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Today, we discuss the implications of passing laws that are not currently legal, and why that is particularly important for legislators at the city and state levels here in Massachusetts. We start with home rule petitions for policies that the state has not allowed legislation for yet, and later explore how Republicans and Democrats view this legislating strategy differently.

Jordan Berg Powers, Anna Callahan, and Jonathan Cohn chat about Massachusetts politics in our latest episode. This is the audio version of the Incorruptible Mass podcast, season 5 episode 54. You can watch the video version on our YouTube channel.

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Transcript

Hello and welcome to incorruptible mass. Our mission here is to help us all transform state politics because we know that we could have a state that truly represents the needs of the vast majority of the residents who live here. And today we will be talking about the importance for all legislators, city and state here in Massachusetts to pass laws that are not currently legal.
And you might think what? That sounds crazy, but we will start with the easy ones in terms of doing home rule petitions around things that the state has not allowed enabling legislation for yet. We'll also talk about an example from my experience inBrooklyn, California. We'll talk about how Republicans, Democrats view this differently.
We'll talk about abortion care. We'll talk about fossil fuel infrastructure. So we've got a lot of things in education as well,diversity.
So we've got a lot of stuff to talk about. But before we do, I'm going to have my two illustrious co-hosts introduce themselves. Iwill start with Jonathan.
So it didn't work properly. Jonathan Cohn, he him, his. I've been active with the progressive issue in electoral campaigns here inMassachusetts for around a decade now.
And joining from Boston in the south end and Jordan, Jordan Berg Powers, he him. And I am joining from the road for my birthday week. Boom.
Happy birthday, Jordan. If I may, I'm going to make a plug that you can give a few bucks. Jordan, tell me if you're terribly offended.
Please do for my birthday. That's an amazing idea. I'll also post it online.
Great idea. Fantastic. So give a few bucks to the podcast for Jordan's birthday.
And I start this one off with a little story of the sort of first moment that my brain exploded on hearing this idea, which is I was on a commission in Berkeley, the open Government commission, and in Berkeley I had helped to pass to do all the canvassing work for passing a public financing of elections law, which gave six to one funding to anybody who signed up for this law, for this new legislation and agreed not to take more than $50 from any single person. And we were implementing that law. And we had some possibilities for implementing the law that we knew had been struck down by the Arizona Supreme Court in Arizona,by the Arizona Supreme Court, because it didn't agree with the Supreme Court's definition that corporations are people.
So it had to do with allowing corporations or not allowing corporations to put money into campaigns. And we were debating it and people were like, oh, we can't pass that because it might get struck down. And one of the guys on there said something I Will never forget.
He said, it is not our job to uphold the wrong decisions of a right wing Supreme Court. It is, in fact, our job to pass laws that put pressure on the Supreme Court to change their decision. And if every city in the country would just continue to pass laws that push those boundaries, then we would have a better country.
And it was just this wonderful moment where I was like, what? Oh, my God, that's amazing. So I'm going to go ahead and turn it over to you guys. If you have any general ideas about this concept of passing laws that are not legal, which sounds a little crazy, I want to photo Jordan, who has a lot of opinions on this.
All right. Yeah, I guess I'll see. I just think what happens a lot of the times is that the conservatives have really bad ideas, and then they also have really bad logic.
And when they pass their bad ideas, we fill in their bad logic with good logic. We make it logical. And so then we end up facilitating the sort of oppression that we ourselves are opposing because we're trying to make it make sense.
We're trying to make it rational. And I'm not saying that we have to go out of our way to flagrantly be like them and just don't believe in law, but we certainly don't need to go out of our way to enforce laws in a way that they think they intend. But their logic models haven't totally played out, so they often say things that are just totally illogical.
We'll talk a little bit more about this, but one of my favorites is that they said that the Freedman Bureau was race neutral. That's Obviously a ridiculous supposition. But if you believe that to be true, then you could just pass legislation that says that descendants of the Freedmen's bureau.
I can't imagine who that might be, get this. Get certain things right. But we instead take their logic.
We take what they said to their full conclusion, and we therefore say, well, then we can't look at, we can't understand that black people exist and therefore might have certain things happen. And so we do the work of enforcing their bad ideas rather than taking the logic that underpins their ideas and throwing them out and, like, you know, working around them. And we could pass laws on their logic models.
We could pass laws that just basically throw in the face the sort of silliness of their ideas. But we don't, we end up trying to enforce their bad ideas and what they. What they meant to say.
You know, it's sort of like the way the media makes Trump sound cogent by taking, by snipping the 15 seconds where he strings together a cogent sentence and then you get the impression that he does that. Or George W. Bush when like, if you ever listen to five minutes of it, you realize it's honest.
Yeah. I'm just going to jump in because I forgot to introduce myself. Anna Callahan, she her coming at you from Medford and mentioned that as a city councilor, Medford as a legislator, I also think not just about the logic and these weird structures of logic that they have, but about values, that it is my job to pass laws that uphold our values.
And if those values are not the values of the Supreme Court, tough, tough. It's my job to still pass laws that are based on our values. Jonathan, thoughts? Yeah, the thing that this reminds me of is I feel like over the years that republicans have been very good at, like, I think especially when it comes to, let's say, issues around abortion rights where their strategy was to pass things that clearly flouted will versus Wade.
And they kept doing it over the years, noting that eventually they can whittle away at a law and then at some point the SupremeCourt will agree with will use their case to just eliminate the law entirely. And it's like always by then used for evil ends, but like it was a smart strategy, just used for totally evil purposes. And they do it quite often of the strategy of rather than approaching things is I feel like often Democrats approach legislation by thinking of what are all of the things that we can't do? And you basically enter that as your beginning things because even if you toss things out because you don't think that the public is fully supportive of the donors aren't supportive or whoever you care about in that exact moment because of that issue, you don't think are supportive, you toss those aside and then you often also use but a dozen but what if this gets ruled out, kind of ruled out of court without even trying, because the best way to assume, like, you don't need to do the, do a court's work for it by simply not passing something, see what, like, see what gets, like if somebody wants to challenge it, see what gets held up rather, rather than kind of pre considering on that entirely because it's also not only can you actually get better chances of getting ambitious policy by doing this, you might be able to change the laws as a result as well.
I just feel like it's one of many examples where we've seen kind of in the conservative political ecosystem a very long term strategy in that regard of both using it to weaken more progressive legal infrastructures as well as to, like, ultimately change them where so often on the kind of on the liberal side of things that there's, it's just kind of assumed that you just don't, like, you just don't try. And I'm glad you mentioned abortion care because, you know, they left it up to the states. But what ifMassachusetts, you know, publicly announced that, like, hey, now anyone from any state can get their abortion care from us? Like just telemedicine, make it all, you know, legal? Like that would, that would put pressure on the Dobbs decision.
Exactly. It's like, it's good to, like to test the limits of what, it's kind of important to test the limits of what you can do rather than impose, rather than impose the limits on yourself that nobody has created for you. Exactly.
Yeah. Go ahead, Jonathan. Yeah, I would say, like, it's, I feel like that's kind of one thing that we often, like, criticize because you also see that just, I feel like in general here in kind of in state policy making, of assuming constraints that they may exist, but you don't need to be the one imposing them on yourself.
Exactly. Don't do other people's jobs for them. Exactly.
Jordan, do you want to jump in? I know you were talking about integration across districts, and do you want to jump in and talk a little bit about education? Yeah. Well, I guess I also want to talk a little bit about what Jonathan said, which is like, this is going to be important as rising fascism across the world continues. One of the things that fascist governments want is for people to do the work for them because they can't be everywhere.
And it's really important that we don't agree. And if we don't agree that we act accordingly and if our legislators have power to also act accordingly. So one of the things that happened after the first, you know, so one of the things that happened afterBrown versus Board of education is that we still had really segregated schools.
So the Supreme Court ruled, well, we can force some sort of integration. We can force integration inside of school districts. And then the Supreme Court, soon, a few years after it got turned over, Rehnquist gets on the court, and the Supreme Court then rules that actually you can't force integration of schools across school districts.
And for that reason, we get just sort of, there was already white flight, but now you're just seeing extreme white flight and sort of, you know, all of many attempts to just sort of, like, reinforce sort of racial segregation, especially in the northeast, aroundeducation. And so one of the things that we could do to sort of push the limits is have cross county integration. That would be away where we know from integration is that integration had the best outcomes for everyone.
One of the mistakes that white parents have is there's this assumption that if black and brown students, at least too many of us,go to a school, that is therefore a bad school. But actually what we know is that at the height of integration, outcomes for students were at their highest across every income, across every racial background that we had back then that we were testing. And so that helps all students.
And so if we allowed integration across counties, we know it would impact every student positively, and it's a clear flouting of their laws. But the Supreme Court also clearly has these ideas now that states can do whatever they want. This Would be a really good time to flout that law and to really push an outcome that's more on our values as Massachusetts, of ensuring that there is equal opportunity through education, no matter your zip code.
I love it. That's such a fantastic idea. I wanted to bring up another one, a climate one, which is that in Brookline a few years ago,they passed a law that was no new fossil fuel infrastructure, basically, and would not allow new developments, for example, to have gas stoves.
And they passed the law, and then it went to the state, and the state basically said, you are not allowed to do this. This is not legal according to the state laws in Massachusetts. But what's important is that.
And this wasn't like enabling legislation. Oh, we should talk about enabling legislation in a minute. This was just a, you know,this was a law that they thought they could pass.
So what's important to know is that now there is some movement at the state level to change those underlying laws that made that impossible for cities and towns to do. And so that's exactly the point. When you pass something that is the right thing according to our values, and you say, look, we should just pass it, and then we'll see what happens at the state.
The more cities that pass something like that, the more likely it is that the state is going to change those underlying laws and make it possible for us to do the things that we need to do for climate change and other things. Yeah. And I.
And I also think that, like the case with Brooklyn, it also just reminds me of one of the values of that, of Brooklyn doing that,even if there was a chance of being challenged, being struck down, is you raise the profile of the limitations of the current laws.Like, you'll get media coverage and create a certain sense of voter outrage that something that they probably thought it was already legal is in fact not, which then helps, as you know, create pressure for the legislature to take action. Absolutely.
This is a really interesting place to bring up these enabling, the sort of enabling legislation in Massachusetts, because I feel like, on the one hand, enable these, like, home rule petitions, things like, for example, a transfer fee. Right. Or rent control or whatever, that they're going to the state.
I mean, rent control is different, but there's a bunch that are like tenant opportunity to purchase transfer fee, and those that are going to the state as a request home rule petition saying, can we please have this in our city? And theoretically, the state could say yes. Although the state is not saying yes, the state is instead working on enabling legislation which would allow any city or town to pass those laws. I feel like, on the one hand, it's a good example of ways that cities can pass things that are not legal.
Right. It's just a normal home rule petition, this part of normal stuff that you do as a legislator. On the other hand, it's incredibly frustrating, because on those particular instances, they never.
The home rule petitions never go through. Right. It's not like, hey, we want to hire a dog catcher for $30,000.
You know, the state passes 150 of those a year. Right. That the city of, you know, Woburn or whoever wants to do XYZ, but they don't pass the ones that are for these kinds of housing policies and other policies that they supposedly are working on enabling legislation for.
Jonathan? No, I think that that's a good point. Yeah. It just speaks to the, what we were talking before about the need to change laws.
Like, it is always wild to me. This is, we had a whole prior discussion about home rule in Massachusetts, about how restrictive itis, and that the way in which it often mirrors what we see in a number of red states where, like, a republican legislature tracks the ban, like a liberal capital city, from passing its own laws. Yep.
Yep. Any other examples that we have that we want to bring up for today? Yeah, I guess I just think there's a lot. Oh, no.
You go, Jonathan. Yeah. The one thing I was, when it comes to, let's say, like, preemptively conceding rather than trying things that are not necessarily, like, explicitly prohibited, but, like, viewed as possibly prohibited by different things, it reminds me of the issues around, like, single payer health, health insurance, where there are various, like, federal waivers that a state would need to be able to get in order to do that.
And so rather than simply being like that, states like to use the possible roadblocks as a reason not to do something rather than their roadblocks to any policy that you want to create. So how do you, how do you best navigate them? Yeah, Jordan,we're on the same page. I was looking the exact same thing that, like, you know, California, New York, Massachusetts could just pass single payer and just do it across.
Just create a cross state network and just tell, and just give them middle finger to the Supreme Court and see what happens. Like, and, you know, I mean, like, there's no reason, you know, especially if, you know, it's one of the things, too, where legislators, you know, it's sort of funny, like, for long time republicans, the thing is that, like, what will republicans do if theSupreme Court actually overturns roe? And I think, like, one of the things that would be great about doing some of these things is, like, legislators are actually scared about their outcomes. And so they use the fact that they might get struck down as a reason, but if they're going to get struck down, you might as well just pass it.
Like, there's actually then no worry for you about it. And so I think also just getting our legislators to rethink about their roles that sometimes, like, that they're so immediately worried about what could happen that they end up not doing anything or they use them as excuses. It's not doing anything.
And do I think that if we all pass single payer that it would just happen? No, I think insurance companies and other people would start to freak out, but that would be the, that would be the next logical ratchet up for the outcome that we want because we're just not, it's just unlikely we're going to go from zero to a, to a federal single payer, and we need states to be thinking really creatively about it. Similarly, with, with what you mentioned, Anna, about abortion care, like, why aren't we just saying telehealth for everybody on abortion and just force the issue? Right. Like, just force the issue and, you know, do what republican states do when they strike it down, change a word and just pass it again over and over again.
Yeah, I totally agree. I hope that people found this interesting to talk about the idea that legislators should be passing things that are illegal, that it's part of our job to pass our values. Right.
And not, like, fit into the other side's framing and the other side's logic and the other side's values really, which is what it ends up happening. Well, wonderful. Thank you so much, Jordan.
Thanks for joining us on your birthday week and from the road. And Jonathan, as always, love having you guys all the time, and we look forward to talking with everyone again next week.