Judge zaps MoCo lawn pesticide ban

Overturning Montgomery County’s ban on many commonly used lawn pesticides [Washington Post], Montgomery Circuit Court Judge Terrence McGann

said that the law — the first of its kind for a major locality in the region — would conflict with federal and Maryland state regulations that allow the use of the pesticides. The case was just one example of Maryland counties’ “insatiable appetite to tamper with existing state laws,” McGann said.

Counties have also “tried to hijack a portion of the existing field of law” in areas including tobacco, guns and minimum wage, he said.

My Cato Institute piece on the county’s bald double standard — officials had sought to exempt playing fields and other county properties from the ban — is here.

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Gerrymeander Meander II

I was glad to join Lt. Gov. Boyd Rutherford, the League of Women Voters of Maryland, Common Cause of Maryland, and other groups for the Gerrymander Meander II in Baltimore July 16, which hopped from district to district visiting four eateries in Baltimore and its northern suburbs, each in a different district. I was among the speakers at the kickoff rally in Towson. For coverage, see Len Lazarick/Maryland Reporter, as well as the Baltimore Sun and national Common Cause.

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In miniature, July 2

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Supreme Court tackles redistricting again — the Maryland implications

The U.S. Supreme Court has now agreed to hear a much-watched Wisconsin case, Gill v. Whitford, inviting it to reconsider its position that the Constitution does not create a judicial remedy for partisan gerrymandering. Should the Court uphold the challenge to Wisconsin districts, the implications for Maryland would be immediate and dramatic, since Maryland’s gerrymander is more extreme than Wisconsin’s and there is good evidence on the record (thanks in part to recent depositions from top officials) that its motivations were political. I joined Bryan Nehmen on WBAL yesterday to discuss how this affects the Maryland debate.

I also wrote a piece for Cato on the national implications, cautioning that the euphoria in some circles about an impending change in the Supreme Court’s jurisprudence is at best premature. The Justices by a 5-4 margin stayed the lower court order from Wisconsin, which hints, at least, that Justice Anthony Kennedy might not be persuaded by the advocates hoping to get him to open wide the door he left open in his 2004 concurrence in Vieth v. Jubelirer.

A couple of additional relevant Maryland links from before the decision: Nancy Soreng and Jennifer Bevan-Dangel in the Washington Post (“Maryland shouldn’t wait for other states to start redistricting”); Karen Hobert Flynn, The Hill;
Kojo Nnamdi show last month with Ashley Oleson (MRRC colleague, but no relation) and Del. Kirill Reznik (D-Montgomery County); Yael Grauer/Yes! (“Has Arizona Found a Solution to Gerrymandering?”, discussing Maryland reform efforts).

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Putting occupational licensing on the Maryland reform agenda

Last year the Washington Post rightly applauded Maryland Gov. Larry Hogan’s signing of a bill reducing licensing requirements for personnel at “blowout” hair salons as “a modest but genuine step toward reform of occupational licensing rules that too often stand in the way of career progress for working Americans, and not only in Maryland.” The Obama White House, think tanks, and many economists agree that needless licensing rules exclude qualified newcomers from desirable jobs and often harm consumers as well by restricting choice and driving up the cost of services. (More here.)

Where should Maryland reformers turn next? In 2012 the Institute for Justice published a nationwide comparison that ranked Maryland as 14th most burdensome of the fifty-states-plus-DC in its licensing rules. Of the 42 occupations Maryland requires a license to practice, 16 require such a license in 10 or fewer other states, suggesting that much of the country gets along quite well without such rules. They include tree trimmer (only 6 other states choose to license), social and human service assistant, and a variety of residential construction trades including window repair, floor sanding, and carpentry. These jobs can offer a livelihood and a path for upward advancement for a wide range of workers, including some who lack degrees or are re-entering the workforce after absence, who lack the resources or patience to surmount the licensing barrier.

Equally problematic, even when other states license a given occupation, Maryland often loads onto the entrant heavier education and experience requirements. It ranks 10th of 51 in that category of burden, typically requiring more than a year of preparation before conferring a right to practice. While 39 states require a license before practicing massage therapy, for example, Maryland demands nearly a year of preparation, almost three times as long as neighboring Virginia, Delaware, or Pennsylvania.

It’s a target-rich environment — although many of the burdensome rules, alas, will be closely defended by incumbent practitioners who do not like the idea of easier access to their occupations.

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Redistricting: the six-state compact idea doesn’t cut it

On Tuesday the Baltimore Sun ran any op-ed that I co-authored with Judge Alexander Williams, Jr., with whom I serve as co-chairs of the Maryland Redistricting Reform Commission:

By an overwhelming majority, Marylanders support the idea of having an independent commission rather than incumbent lawmakers draw district lines for Maryland elections. The margin was 73 to 19 percent in a February Goucher Poll, with support running roughly the same among registered Democrats, Republicans and independents.

Yet a bill passed by the legislature this session would instead have kicked the issue of redistricting reform down the road unless five other nearby states all agree to pass similar bills — something no one expects to happen.

As co-chairs of the Maryland Redistricting Reform Commission, which Gov. Larry Hogan established in 2015 to devise a better system for drawing district lines, we support Governor Hogan’s May 8 veto of that bill. The proposal for a “Mid-Atlantic Regional Compact” is a frivolous distraction in place of a willingness to tackle reform seriously….

Read the full piece here.

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On the Howard County Unsweetened campaign

According to coverage at places like NPR and CNN, an innovative campaign in Howard County, Maryland “provides a road map for other communities to reduce consumption of sugary drinks.” Not so fast, I argue in my new Washington Examiner piece: the suburban county in question is not remotely typical of America as a whole, the Howard County Unsweetened campaign blurred public and private boundaries in a dubious way, and the whole enterprise generated a deserved political pushback. While the plan, promoted by the local Horizon Foundation, might not have been all bad, “it sowed divisiveness, put government resources to improper purpose, and rested on a premise of frank paternalism. When it arrives in your community, you might want to respond as you might to a second pitcher of cola — by pushing it away with a polite, ‘no thanks.’” [cross-posted from Overlawyered]

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In miniature, May 7

  • Governor should keep the redistricting issue in play: “Hogan has backing — from the general public, from all those sick of gerrymandering and interested in responsible government and from a long-term national trend.” [Capital Gazette] “U.S. judge: Miller, Busch must testify, turn over documents in redistricting case” [Washington Post]
  • Also on the redistricting topic, I was a guest on the Kojo Nnamdi show on the topic during session, with former Del. Aisha Braveboy and Maryland Republican chair Dirk Haire [listen]
  • No thanks, let’s keep the farebox recovery rule, in which Maryland shows itself more fiscally prudent than many states with mass transit systems [Brian O’Malley, Greater Greater Washington]
  • Two liability-expanding decisions from the Maryland Court of Appeals, May v. Air & Liquid Systems Corp. (duty to warn of asbestos in other companies’ products) and Spangler v. McQuitty (wrongful death action can be filed notwithstanding earlier assertion of personal injury action) made it into American Tort Reform Association’s Judicial Hellholes report last year;
  • The Slants, band whose name is the subject of a trademark case before the U.S. Supreme Court, play Frederick [Ronald K. L. Collins, Concurring Opinions]
  • “Maryland Decriminalizes Unlicensed Barbering; Jacks Up Fines for Unlicensed Barbering” [Eric Boehm/Reason]

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The campus speech wars come to Hood

The campus speech wars have now arrived at Hood College in my hometown of Frederick. (I’ve written about these often as to other campuses.) The furor over a large hall display by the college Republican club, in a space given over for rotating use among student clubs, is covered by Katherine Heerbrandt in an early report here at Frederick Extra and by Nancy Lavin at the Frederick News-Post. Among the most controversial elements are a quote from pundit Ben Shapiro claiming that “Transgender people are unfortunately suffering from a mental illness that is deeply harmful,” and posters terming abortion “genocide.”

This episode has played out so far along a familiar script, with conservative students saying the most abrasive arguments seen in the display were meant to stir discussion, should not necessarily be taken as their own views, and pose a test of the college’s free speech principles. Some offended students and alums have demanded that the Hood administration take down the display before its scheduled removal next Tuesday.

A few words about the problems I see on both sides in online discussion (borrowing from what I wrote earlier there):

Dear Republican club students:

Much of the content in this display exemplifies simple-minded, talk-show-caliber conservative sloganeering, and some of it (see above) is pointedly insulting to some members of the Hood community likely to read it. Hood is an institution of higher learning with standards of rigor and civility to uphold. Please find better examples of intellectually sound conservatism, or expect to lose the battle of persuasion.

Also, if you post memes calling groups of your fellow citizens and Hood students mentally ill or supporters of genocide, you must expect that they, and many of the rest of us, will judge you and think less of you for doing that.

Finally, Hood as a private institution is as a background matter entitled to set its own rules for expression, and the First Amendment does not bind its hands in the same way that it would U-Md. or Towson. It may decide that some controversial views are okay to vent and others are not. There is one very important exception here, however, which is that if the government or the law are twisting Hood’s arm to crack down on speech then the First Amendment and its principles may come into direct play after all.

Dear offended Hood students, alums, and others:

Some of you may not have thought out all the implications of your comments and demands for the intellectual life of the university, which depends on a wide freedom to air ideas and assertions with which others strongly disagree.

Thus several of you have voiced versions of the slogan “this is not free speech, this is hate speech.” “Hate speech” has no status as a concept in American law; speech that is otherwise protected by law does not lose it simply because it is hateful or embodies hate. Although Hood as a private institution is free to play around with the concept if it wants, its ambiguities, subjectivity, and resulting inconsistency of application are among the reasons the law cannot force Hood to draw distinctions based on your having dubbed something hate speech.

Others assert that speech is violence. No. Speech is not violence. Violence is violence and speech is speech. Whether by design or not, the “speech=violence” slogan leads down a road that ends by rationalizing the use of violence against speech, since it can be framed in that case as self-defense.

A related assertion is that to be insulted, overlooked, ignored, or misunderstood is to be erased or to have one’s “very right to exist” at stake. No. Being insulted, no matter how nastily, is not the same as being physically annihilated. Once again, to confound the two is to raise the stakes in a case of insult to the same as they would be in a case of murder, the implication being that the keeping of peace requires the legal banning, not merely the condemnation, of insult.

One Frederick public figure asserts, in response to the display, that “Free speech does not give you the right to marginalize and attempt to demonize another person …[or] the right to propagate misinformation and fake statistics.”

Again, Hood as a private institution is free to set its own rules. But no one should take the above statement for an instant as a correct assertion about freedom of speech in the outside world where First Amendment principles are fully in play. There, on the outside (as to some extent within state-run universities) free speech definitely does include the right to adhere to and promote ideologies and systems of thinking that marginalize or demonize other persons. Nor is there a government power (absent some special circumstances such as fraud in commerce) to punish the propagation of misinformation and fake statistics in political, religious, or social argument. If every book that included misinformation, fake statistics, “marginalization” and so forth were removed from the Hood College library, few books would remain. If every person who uttered or wrote such things were removed from campus, Hood (like every other college) would soon be bereft of students and faculty.

Finally, for now, several local observers, again including public figures, have suggested that Hood may face liability under Title IX or other federal laws if it does not require the prompt removal of the display. The basic logic is that the students’ statements are said to create a so-called hostile environment based on transgender status or another protected class, and the university is legally obliged to act to end that hostile environment. To those who make this argument: be aware that by doing so, you are transforming the situation from one in which the students may not have First Amendment rights to one in which yes, they may have important rights of that sort. If the government or private parties filing complaints under its laws are trying to get them punished for their speech — and that includes arm-twisting the Hood administration into acting — then it may be that their right to quote Ben Shapiro rises to a constitutional dignity it would never have acquired otherwise. In that case, the Republican students might see a losing position turn into a legal winner.

I do not presume to prescribe what Hood should do, except that it should consider ignoring the voices who urge that federal law requires it to remove the display or punish the students.

Update Apr. 21 via The Frederick Extra: In her statement, Hood President Andrea Chapdelaine says the college will not remove the exhibit before its scheduled take-down on Tuesday, but that “I have requested that we follow College procedures to determine if these messages have violated policy, with appropriate sanctions to follow should such a determination be made.” Hood College Policy Statement 55, cited by critics of the display, is a broad ban on acts of discrimination and harassment. It can be found here (as policy statement) and here (as brochure).

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Public employee unions as Montgomery County kingmakers

Arnold Kling reviews recent rounds of political hardball in Montgomery County, including the ouster of officials who had been at odds with the teachers’ and other unions. As for the vaunted quality of public services, it’s not all it might be:

An increasing share of that budget is going to pensions and non-teaching staff who are union members. Actual classroom teachers are badly over-worked.

Because spending per student is by far the highest in the state, the WaPo constantly refers to Montgomery County as a high quality school system. However, the average outcomes in the County schools are mediocre. Students from the wealthiest parts of the County (three high schools in particular) produce good test scores, and the rest do not. Other school districts in Maryland get similar outcomes with students of similar backgrounds while spending much less money per student.

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