Yet again, General Assembly moves to regulate speech

But this time they say it’s not going to be struck down by the courts as unconstitutional, really and truly, cross their hearts. A federal court has temporarily blocked California’s Age-Appropriate Design Code Act of 2022, ruling in favor of challenger NetChoice on free speech grounds. What is called the Maryland Kids Code, sponsored by Del. Sara Love (D-Montgomery), has similar aims and would bar various common online design features when aimed at kids, including video auto-play and frequent notifications. From the NYT:

(The New York Times and the Student Press Law Center filed a joint friend-of-the-court brief last year in the California case in support of NetChoice, arguing that the law could limit newsworthy content available to students.)

NetChoice has similarly objected to the Maryland Kids Code. In testimony last year opposing an earlier version of the bill, Carl Szabo, NetChoice’s vice president and general counsel, argued that it impinged on companies’ rights to freely distribute information as well as the rights of minors and adults to freely obtain information.

Maryland lawmakers say they have since worked with constitutional experts and amended it to address free speech concerns. The bill passed unanimously.

Unanimously! The legislators must be awfully confident the constitutional issues were fixed. More from NetChoice, asking Gov. Moore to veto the measure, here.

“We are technically the second state to pass a kids code,” said Delegate Jared Solomon, a Democrat who sponsored the children’s code bill. “But we are hoping to be the first state to withstand the inevitable court challenge that we know is coming.”

Oh, so it’s “hoping,” which may or may not be the same thing as “awfully confident.” We’ll see.

In miniature, March 20

• Among bad bills that didn’t make it past crossover, massive retroactive levies on oil and gas companies; tipped minimum wage [withdrawn by sponsor]; requiring “cage-free” egg production;
• Good bills that survived crossover: tiny but symbolic retreat on disastrous earlier juvenile justice package; compliance with requirements of federal Electoral Count Reform Act [unanimously passed both houses]; special elections for legislative vacancies [one version passed Senate];
• Bad bills that survived crossover or passed outright: declare guns to be public nuisance, meant to serve as basis for litigation [passed Senate]; SEIU-backed measure to force home health providers into employment status [passed Senate 33-13]; Moore-backed bill forcing owners of buildings with three or fewer units to give tenants time to put together purchase before selling the property to others, a serious incursion on property rights [passed House]; adding military and military-spouse status as protected categories in discrimination law [near-unanimous passage, both chambers]; new anti-gun office within state government, likely to serve as a taxpayer-funded engine of advocacy against Second Amendment rights [passed both chambers]; ban resale of event tickets at more than face price [passed Senate unanimously];
• Another bill that didn’t get out of committee would set up a compulsory royalty scheme and takedown rights for minors featured in some kinds of online family videos on social media, which would extend Maryland’s record of enacting online media laws of dubious constitutionality;
• Can a tax hike result in lower revenue? Consider Montgomery County’s big boost in real estate taxes [Pagnucco]
• “Maryland and Virginia are demographically similar states, but Maryland has long had a much higher crime rate…. The differences in crime rates are especially large for offenses that Virginia punishes most severely compared to Maryland, like robbery.” [Liberty Unyielding]

Frederick County preservation bill would curtail property owners’ rights

I presented public comments to the Frederick County Council Feb. 27 against Bill No. 24-01, which would greatly expand the powers of the Historic Preservation Commission and empower the county to issue mandatory preservation orders against owners of properties it decides are historically, architecturally, or culturally important. I was a bit surprised that mine were the only comments in opposition; there were I think three in favor, from preservation advocates. It was a second reading, and the council will not vote until a future meeting.

There is much that could be said against this bill, which sharply infringes on the traditional rights of property owners, including the right to demolish. It would change Frederick County’s preservation program from a mostly “carrot” approach (helping encourage good practice and authenticating property for favorable tax breaks, etc.) to much more of a compulsory “stick” regime.

In my three minutes I chose to focus on the harshness of the bill’s rules on hardship exemptions and on its aggressive treatment of the concept of demolition by neglect, by which is meant the failure to take care of a structure the county decides should be saved, whether or not the neglect endangers any neighbor. Under the terms of the bill, as I read them, after 30 days the county could send in its own contractor to do the repair work it believes is needed, slap a lien for the resulting sum on the structure, and then if not paid sell the structure at tax auction to recover the money.

And yet, I pointed out, around our communities demolition by neglect very often happens simply because people do not have the money to keep historic structures in good condition while also paying for doctor bills and their children’s education. That especially goes for country properties that may include multiple outbuildings with little use value. People do not always wind up owning these premises as some sort of speculation; they may inherit them from parents, or they may buy a country property intending to launch a business on it and find that doesn’t work out.

The bill at p. 12, line 37 cites an owner’s “undercapitalization” as an excuse that should not be accepted and at another (9: 21) lists demolition by neglect as among “self-created hardships” that should not count in an owner’s favor. At yet another (12: 32-33) it says an owner seeking delisting is to have the burden of proving by “clear and convincing evidence” that he or she “does not have the financial ability to comply.” That sounds to me as if they might be expecting you to bear all hardships short of that point — even if it means, say, throwing in your retirement savings to keep the barn standing.

I also pointed out that many provisions in the bill — from archaeological review before land development to the arch-empowerment of objectors — tended to be typical of more urbanized counties that have made development and thus housing more expensive. Time didn’t permit me to explore the backfiring of incentives a bill like this can cause, by giving property owners a reason *not* to put their buildings on tour or let local history societies write them up, for fear that taking too high a profile will invite a future mandatory preservation order.

I hope the council rethinks this bill and its direction.

In miniature, February 25

• Clock is ticking: legislature needs to move this session to bring Maryland law into compliance with federal requirements of Electoral Count Reform Act [SB 494 (Kagan), HB 471 (Fair, Pruski); Wendy Underhill, NCSL last year]
• “[Last] summer, Bates called the [juvenile] interrogation law ‘one of the worst pieces of legislation I’ve ever read’ before slightly walking back his comments and expressing optimism about working with lawmakers and the governor ‘to ensure that we have laws that can keep residents safe.'” [Brenda Wintrode, Baltimore Banner, earlier]
• It’s about individual freedom: ABATE doesn’t give up on fighting mandatory biker helmet law [Sapna Bansil, CNS/Maryland Reporter]
• Free stuff can cost a fortune: MoCo councilmember Will Jawando’s bill to require many businesses to give away menstrual products could cost millions [Adam Pagnucco] 
• Here’s one issue where David Trone is absolutely right [Bryan Sears, Maryland Matters]
• SEIU-backed bill would hurt both taxpayers and home health providers by forcing them into employee category [Danielle Brown, Maryland Matters]

Noncitizen voting in Maryland: a doubter’s view

An appeals court has ruled that New York City’s attempt to let green card holders vote in municipal elections violates New York’s state constitution and exceeds the city’s home rule powers.

Led by Takoma Park, Maryland municipalities have been at the forefront of noncitizen voting in local elections, with more trying the idea than in any other state. (Noncitizen voting is unlawful in state and federal elections.) The city of Frederick’s charter review committee has recommended a similar step. Last year, voters in Rockville by a wide margin defeated a proposal for noncitizen voting, while voters in Greenbelt approved it.

I myself think that even in calmer, happier times there wouldn’t be much of a affirmative case for extending the franchise to green card holders (let alone any further), and that right now — with a third of the U.S. electorate riled up by bogus claims about noncitizen votes supposedly swinging federal elections — is a peculiarly bad time.

Poll: Hogan competitive or better in Senate run

Following Larry Hogan’s surprise announcement that he’s entering the race for the U.S. Senate seat being vacated by retiring Ben Cardin, Emerson College is out with a poll showing him tied with potential Democratic opponent David Trone at 42 percent, and with a six-point lead over the other Democratic candidate, Angela Alsobrooks.

Hogan will first have to get through the Republican primary, with a very different GOP electorate than the one that first nominated him in 2014. The poll shows 43 percent of Republican voters saying they intend to pick him in the primary, tied with another 43 percent saying “undecided,” a measure of the distrust much of the Maryland GOP base now harbors toward the former governor. During his eight years in office, his popularity rating among Maryland Republicans — as with independents and Democrats — routinely topped 70 percent. But as the 2022 primary win of Hogan-loathing Del. Dan Cox showed, you can’t assume that the group that in fact comes out to vote in Republican primaries reflects any sort of generic party profile.

Fortunately for Hogan, the Republicans he’ll be facing appear to be anything but strong contenders. The closest second to Hogan’s 43 percent in the Emerson poll, at 6.2 percent, is disbarred perennial candidate Robin Ficker. John Teichert, a retired Air Force general who’ ha’d been seen as making a bid for the race’s pragmatist lane, promptly pulled out and endorsed Hogan.

Turning to the November general election, the poll has ominous news for Joe Biden. In 2020 Biden beat Trump by 33 points in Maryland, roughly matching the recollections of the group polled this time. This time around, however, those polled split for Biden in a two-man race by a less impressive 22 percent, which shrinks to only 15 percent when third party candidates Kennedy, Stein, and West are added as alternatives. At least in this snapshot, Biden is running less strongly in Maryland than he did four years ago, and the third party candidates almost exclusively are hurting him.

Returning to Hogan’s prospects for Senate in November, how do the crosstabs look? Glad you asked.

Against Trone, Hogan dominates 63-20 among voters who think Maryland is headed in the wrong direction and wins independents 48-25. Trone leads among Democrats 65-24, while Hogan, for all the frictions he has had with the GOP base, beats Trone 75-8 among Republicans with 17 percent undecided, perhaps a reflection of Trone’s reputation as a strong liberal. Trone easily wins those who believe Maryland is on the right track, 62-28. Trump voters break for Hogan 73-11, while Biden voters go for Trone 66-23, and presidential undecideds go for Hogan 42-22.

On ethnicity, Hogan leads among whites 49-36 and Hispanics 48-42, while Trone leads among blacks 55-27 and Asians 46-42. Hogan’s strength among Hispanics is particularly striking, given that many pundits have treated the Latino drift toward the GOP as mostly a regional phenomenon of states like Florida and Texas, with little relevance to the Northeast.

On age, Trone leads among under-30s at 46-29 and over-70s at 49-40, while Hogan’s strongest group is voters in their 40s at 46-36. On education, Trone’s strength again follows an hourglass outline, running 53-37 among those with postgraduate education and 56-29 among those with vocational training, while Hogan leads among college and community-college grads and carries high school grads 45-34. For all the gender differences in other parts of American politics, there is almost no difference between male and female voters in Hogan/Trone preference.

How do the numbers change if Prince George’s County Executive Angela Alsobrooks, rather than David Trone, is the Democratic nominee? What voting shifts net out to yield the six-point swing toward Hogan?

Alsobrooks, who is African-American, runs only a few points stronger than Trone against Hogan among black voters as well as slightly stronger among Hispanic voters, perhaps in part because more Hispanic voters live in Prince George’s County than in Trone’s congressional district. But she scores significantly worse among both white and Asian voters, moving to a 38-47 deficit with the latter group. Postgraduate voters also swing hard against the P.G. executive, with Hogan taking a plurality lead among them, as do voters with vocational education. Among other demographic categories, Alsobrooks runs stronger than Trone among under-30s, but worse among all other age groups, and also has trouble with female voters, among whom Hogan takes a 45-35 lead as compared with a five-point lead among men.

Comparisons between surveys done by different pollsters should always be taken with a grain of salt, but a mid-November poll cited by Pamela Wood of the Baltimore Banner in December found Trone leading Hogan 49-34 in a hypothetical matchup. “The survey of 813 likely voters was commissioned by Blended Public Affairs and Annapolis lobbying firm Perry, White, Ross & Jacobson LLC in mid-November.” It definitely looks tighter than that now.

In miniature, January 26

• It would be nice if the Maryland General Assembly would stop passing unconstitutional laws, latest in a series [AP/WBOC on Fourth Circuit’s green-lighting of First Amendment suit against digital ad tax law; earlier here, here, etc.]
• Recommended: County Executive Jessica Fitzwater discusses Frederick County issues, focusing mostly on the hot topic of how and whether to welcome the building of data centers. Hosted by Kevin Kinnally and Michael Sanderson at MACo’s Conduit Street Podcast;
• To rig, or not to rig? Maryland Republican National Committeeman David Bossie was the one who “spearheaded” draft resolution to declare Trump the “presumptive 2024 nominee” after his 11-point win in the New Hampshire primary; intended beneficiary himself shot down the idea [Audrey Fahlberg, National Review] 
• In my opinion, the ongoing loading of more and more protected classes onto discrimination law is making America a more litigious and bureaucratic place, along with shrinking the sphere of private liberty. So I hope the General Assembly will cast a skeptical eye on SB 0413 / HB 0598, a bill that would designate military status, including military spouse status, as a protected class for purposes of discrimination suits against employers, landlords, insurers, and businesses; 
• Montgomery County council unanimously approves more non-competitive money for CASA, the difficult-to-separate amalgam of social service provider, lobby, and hardball campaign machine [Adam Pagnucco; list of 2022 noncompetitive contracts begins on p. 38 of this document; earlier]
• On reactions to Gov. Wes Moore’s agenda, “So many people whose immediate instinct is, ‘What new government program or agency can solve this problem that government programs have not solved in years?'” [David Boaz, Cato]

Lawmakers propose to regulate egg production in other states

Three quarters of the eggs sold in Maryland are raised in other states. A bill in the Maryland General Assembly presumes to impose “cage-free” standards not just on Maryland chicken farmers, but on the suppliers of the other three-quarters, by making the sale of the eggs themselves unlawful.

Even if this is found to pass muster under the so-called Dormant Commerce Clause of the U.S. Constitution, it’s an aggressive and uncalled-for extraterritorial extension of one state’s regulatory powers over agriculture. A similar California law on pork was found to entail sending California inspectors to farms in other states, whose operators of course have no voice in the California political system. An Arizona egg edict “doubled or tripled” egg costs for one restaurant operator.

There are also plenty of reasons to reject the bill on substance, aside from its likely effect in raising the price of eggs, one of the protein sources most in reach for poorer families. “By moving to a cage-free operation, the hen mortality rate increases significantly due to more bacterial habitat being introduced in the barn,” said a Maryland Farm Bureau official in his testimony at the hearing last year.

Consumers in Maryland are already free to shop for cage-free eggs, as they are called, and pay a premium in pursuit of their ideals. This bill would commandeer the resources of others — consumers, farmers, restaurateurs — in support of ideals they would not have chosen to pursue.

In miniature, January 6

• Here’s good news: Maryland schools have been headed back to systematic phonics instruction, known to be a key to reading improvement [Kristen Griffith and Liz Bowie, Baltimore Banner]
• More good news: rent control appears to have died in the Howard County Council legislative process. Good riddance! [Hallie Miller, Baltimore Banner]
• Archbridge Institute paper on social mobility across the fifty states finds Maryland around the middle of the pack;  
• Believe nothing until it has been officially denied: “Nobody is being set up for a tax increase,” says Senate Budget and Taxation Committee chair of steep proposed transportation cuts [Len Lazarick, Maryland Reporter]
• The Montgomery County Agricultural Reserve has long been a sacred cow in county politics, to the point that the county even funds the group that advocates on its behalf. Now the county council’s Office of Legislative Oversight is out with a document saying the Reserve has served to worsen racial segregation and housing unaffordability [Adam Pagnucco]
• Prioritize marijuana-selling licenses for past offenders? No, just eliminate licenses [Jeffrey Miron, Cato]

In miniature, December 11

• Liberty around the fifty states, ranked: “Maryland is one of the least free states in the country, and it has had this status since the beginning of our time series in 2000.” [Cato index; Jason Sorens and William Ruger]
• CASA’s “family” of tax-deductible and government-contracting work, lobbying, and PACs is structured carefully, but perhaps not carefully enough [Adam Pagnucco; Bobby Zirkin, The Duckpin; earlier]
• “This is an activist city,” says director of UMD Carey Law’s new “center focused on racial justice in Baltimore and beyond,” and no one should act surprised if the center proves activist as well [Hugo Kugiya, Baltimore Banner]
• Heavy investments, skimpy returns: “The Orioles will soon reach at least $1.3 billion in public benefits since 1988. They’re expected to ask for more.” [Hayes Gardner and Sam Janesch, Baltimore Sun]
• If only the General Assembly wanted to keep unconstitutional laws off the books: Fourth Circuit strikes down Maryland handgun licensing enactment [Jacob Sullum]
• “Howard County is Stepping Into a Rent Regulation Minefield” [Salim Furth, Maryland Public Policy Institute]