2015 Top Posts: #16-20

Continuing our walk down Memory Lane, here’s five more posts y’all really liked in 2015.

20. New CD8 Candidate An August 4 post that introduced David Anderson as a candidate in the CD8 race.

19. Glass Houses? In the aftermath of the Charleston church shootings and the Confederate battle flag, my June 22 contribution to the conversation about the Confederate cavalry statue across from the Circuit Court building in Rockville. The statue will likely be removed from the courthouse location in 2016.

 18. BOMBSHELL In CD8 A silly and snarky (boy, do I love that word today!) September 28 post about the misidentification of Jamie Raskin as a woman by an Orlando newspaper following his endorsement by the Progressive Chsnge Campaign Committee and Democracy for America.

17. Raskin Hire?! My April 9 scoop about Jamie Raskin’s hiring of Marshall Cohen as his campaign manager. Marshall has joked to me that more people have read his LinkedIn profile from my post than all other sources combined.

16. Our Story Thus Far . . . . The granddaddy of all blog posts, the very first one I wrote when the lights came up on March 21. Reading it today for the first time in many months, I’m struck by how much I didn’t say in that post. It’s still a good place to start but it’s by no means where you should end.

A Position I Didn’t Know I Held In An Organization I Didn’t Know Existed

In response to my after midnight post about Adam Pagnucco’s letter to County Attorney Marc Hansen, Barry O’Connell was sufficiently outraged that he wrote the following Facebook post.

Pure comedy gold. “Explaining how to read a legal case” = “scathing blog based hatchet job.” I had no idea. And would it have been a better or worse “hatchet job” if it hadn’t been “blog based”? I’m wondering.

I’ll bet that nobody in Takoma Park knew about the syndicate, much less my appointment as Snarkster in Chief. But I am so pleased with this moniker that I have just now promoted myself from “Line Cook” to “Snarkster in Chief” here at the worldwide headquarters of Maryland Scramble. Look and see:  

Thanks, Barry. I couldn’t have earned this promotion without you.

Edwards Endorsed By NWPC

Donna Edwards has received the endorsement of the National Women’s Political Caucus, reports John Fritze in the Sun.

A national women’s group endorsed Rep. Donna Edwards’ campaign for Senate on Tuesday as the two Democratic candidates are working to appeal to female voters.

The National Women’s Political Caucus said in a statement that Edwards, of Prince George’s County, has an “impeccable record on women’s rights and a strong track record for effective leadership.”
The group is the latest national women’s organization to back Edwards. Her opponent for the Democratic nomination, Rep. Chris Van Hollen of Montgomery County, has by contrast received the backing of several prominent female lawmakers in the state.
It’s unlikely the NWPC is in a position to have a significant impact on the race: The group, founded in 1971, spent less than $1,000 on campaigns across the nation in the 2014 cycle. In a brief interview, the group’s president said it has chapters throughout the nation, and that it requests that its members donate directly to the candidates they support.

Rikki Spector To Retire

Baltimore City Councilwoman Rikki Spector, a member of the Council for 38 years, has decided not to run for reelection, reports BaltimoreJewishLife.com.

After hearing the speculation and rumors about Councilwoman Rikki Spector considering retirement, BaltimoreJewishLife.com contacted the Councilwoman to find out the facts.

During a conversation that took place earlier today, Ms. Spector, the “Dean of the City Council”, told BJL that she will indeed be retiring at the end of her term. Elected in 1977, the Councilwoman served in the Baltimore City Council with distinction under six different mayors and oversaw the evolution of the Baltimore Jewish community. Always ready to lend a hand, Councilwoman Spector’s office was a known address for problem solving and providing services to her constituents.
She looks forward to the next election after which, for the first time in 38 years, there will be a new occupant in her council seat.
“I look forward to being a mentor and teacher and hooked at the hip to whomever replaces me and the city of Baltimore will be getting two Council people for the price of one,” she proclaimed.

More Van Hollen Endorsements

Four members of the Baltimore County Council endorsed Chris Van Hollen’s campaign for US Senate Monday, reports the Sun.

U.S. Rep. Chris Van Hollen on Monday picked up endorsements from four Baltimore County officials in his bid to be elected to the U.S. Senate.

County Council members Vicki Almond, Cathy Bevins, Julian Jones and Tom Quirk — all Democrats— offered their support to Van Hollen during an event in Towson.
Van Hollen is competing with Rep. Donna F. Edwards for the Democratic nomination in the race to replace Sen. Barbara A. Mikulski, who is retiring. Van Hollen is from Montgomery County and Edwards hails from Prince George’s County.
“I think he’s not only a leader for the state, I think he’s a leader nationally,” Quirk said of Van Hollen. Almond praised Van Hollen’s work on education issues, while Bevins said she thinks he is the best choice to help bring more jobs to the region.

Don’t Try This At Home

I’ve been a lawyer for almost (gulp) 25 years now. One of my pet peeves when I was in private practice was when clients would offer their own legal advice or even better - this actually happened - advice from their bartender. Which opened up a whole host of other issues, but that’s a different story.

Law is the only profession where people who have no legal training at all feel free to tell attorneys how to do their job. I don’t know precisely why this happens but it seems to be unique to the legal profession. Can you imagine telling your surgeon “hey, listen, I had a friend who had a situation JUST LIKE THIS ONE, so I really think you should consider doing the surgery a different way”? I’ve heard some variation on that request as a lawyer hundreds of times.

I was reminded of this peeve when I read David Lublin’s post about a letter Adam Pagnucco wrote to Montgomery County Attorney Marc Hansen. Adam decided to try to play lawyer - and government professor Lublin decided to title the post “County (Ab)using Liquor Stores for Political Speech.” He’s wrong, and so is Adam. The County is well within its right to speak on the issue, as I will make abundantly clear.

First, the letter. The County is putting out a flyer defending the current alcohol distribution system to customers at its stores. Adam is upset with this, calling it “political speech” as opposed to what he considers to be more legitimate “commercial speech.”

Hello, Mr. Hansen. This is Adam Pagnucco. I am working with a group of folks who are advocating for Delegate Bill Frick’s legislation to allow competition in the county’s alcohol industry.

I am in receipt of the attached flyer which I understand is being distributed in county liquor stores. The flyer is unquestionably a political communication and not a commercial advertisement.

As you know, the state’s Court of Special Appeals has ruled that the county “may speak to advance its existing policies and programs, to advocate for policy changes, and to advocate against policy changes.” http://www.mdcourts.gov/opinions/cosa/2015/0175s14.pdf However, during the Question B campaign of 2012, the county ran ads for its point of view on Ride On buses and denied the Fraternal Order of Police the same opportunity. ACLU of Maryland protested that and the county decided to allow FOP ads, but it was too late in the campaign for the ads to appear. The ACLU wrote, “When the government privileges one side of a political debate in a forum open to private speakers, as Montgomery County is doing here, it engages in viewpoint discrimination clearly prohibited by the First Amendment.” http://www.aclu-md.org/press_room/82

As the County Attorney, here is my question to you. If the county is using its facilities to distribute political speech, as it did with the Ride On buses, can county citizens with a different point of view use those same facilities to also distribute political speech? In other words, can we request that our flyers be distributed along with the county’s flyers?

Adam Pagnucco

Side note: Adam acknowledges in his letter that he is “working with a group of folks who are advocating for Delegate Bill Frick’s legislation to allow competition in the county’s alcohol industry.” Given the number of posts that David Lublin has handed over to Adam on this issue, this offhand disclosure is one that should have been made a long time ago.

Adam has fundamentally mischaracterized the holding of the case he cites, and he ignores the court’s discussion of a series of Supreme Court and other federal cases that actually answer his question directly - in the negative. Leaving the question open - was this an honest inquiry or a publicity stunt? Read on and decide for yourself.

First off the language Adam recites is by no means the actual holding of the case. He maintains that there is a distinction between impermissible “political speech” by the County and permissible government speech. That distinction was rejected by the Court of Special Appeals in the opinion he recites. The second paragraph of the opinion makes this clear:

We hold that the County acted within its powers and not illegally by spending County funds to campaign in favor of the particular ballot issue; and that Leggett and Lacefield did not violate any laws. Accordingly, we shall reverse the judgment of the circuit court.

In its conclusion on the issue of government speech, the Court wrote:

The County used its website, email newsletter, Ride-On buses, public libraries and recreation centers, and vehicles to promote a message: voting to uphold Bill 18-11’s limits on effects bargaining for MCPD officers is good County governance policy. The County communicated to potential voters its view that effects bargaining was detrimental to the County’s efficient and productive management of its police force, and on that basis advocated in favor of Question B. As in Kidwell, the County’s speech was directly related to its governance, was in an area in which it had expertise, and concerned an issue about which the voters were entitled to hear its perspective in deciding how to vote. The County was engaged in government speech.

This is so even though Bill 18-11 had not gone into effect at the time the County engaged in the campaign. As noted, Bill 18-11 was passed during the 2011 County legislative session by unanimous vote and was signed into law by Leggett. A government may speak to advance its existing policies and programs, to advocate for policy changes, and to advocate against policy changes. See Kidwell, supra; Page, supra. As the Page Court emphasized, the check on government speech is that the individuals elected to office whose views the government is then espousing may be voted out of office. See also Sutliffe v. Epping School District, 584 F.3d 314, 331 n.9 (1st Cir. 2009) (“If the voters do not like those in governance or their government speech, they may vote them out of office”). Like the school board in Page, which was comprised of elected board members, the County was led by Leggett, an elected official. OPI is the mouthpiece of the County Executive’s office and Lacefield is a political appointee. If County voters disagreed with the County’s message on Question B or if they disagreed more generally with the County’s choice to engage in a political campaign, they were free to vote out of office those they deemed responsible.

It really couldn’t be more clear. The County is free to spend money on espousing its views on a ballot question, and voters are free to vote the responsible officials out of office.

So what about Adam’s question: must the County allow the use of its facilities to its opponents? The answer, legally speaking, is no. Which is equally clear from the Court of Special Appeals’ discussion of several Supreme Court and other federal cases. 

Let’s look first at a 2005 Supreme Court case called Johanns. Here’s how the Maryland court described the case.

That case was a challenge to the Beef Promotion and Research Act of 1985 (“the Beef Act”), in which Congress announced a federal policy of promoting beef products and funded that promotion through an assessment on cattle sales and importation. Two associations whose members paid the assessment sued, arguing, inter alia, that the Beef Act violated their First Amendment rights by compelling them to subsidize speech they found objectionable. The Supreme Court rejected that argument, opining:

  • Our compelled-subsidy cases have consistently respected the principle that “[c]ompelled support of a private association is fundamentally different from compelled support of government.” “Compelled support of government”—even those programs of government one does not approve—is of course perfectly constitutional, as every taxpayer must attest. And some government programs involve, or entirely consist of, advocating a position. “The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies.” We have generally assumed, though not yet squarely held, that compelled funding of government speech does not alone raise First Amendment concerns.

Id. (citations omitted). The Court held that the Beef Act did not violate the association members’ First Amendment rights.

 Two subsequent federal cases are also instructive. The first was a 2006 decision by the Sixth Circuit called Kidwell. Again, from the Maryland opinion cited by Adam Pagnucco.

The city council was using public funds to support a “Vote No” campaign on an issue referred to the voters — whether to overturn a city council resolution establishing a fire department for the city. The city charter expressly authorized expenditures by the city council to inform voters about election issues affecting the municipality, so long as the issues did not involve the election of particular candidates. The taxpayers filed suit, alleging that the city’s use of public funds to advocate (not merely give information about) its position on a ballot issue amounted to compelled speech, in violation of their First and Fourteenth Amendment rights.

Noting that government speech in the context of an election presents “unique constitutional issues,” the Sixth Circuit, in a split decision, held that First Amendment concerns did not justify a “bright-line rule barring such speech, at least where the government speaks within the scope of its governance functions.” Id. at 625 (footnote omitted). It opined:

  • Governments must serve their citizens in myriad ways, including by provision of emergency services, and these activities require funding through taxation. [The city council’s] speech related to emergency service and tax initiatives thus fits squarely within its competence as governor and was made in the context of “advocat[ing] and defend[ing] its own policies.” The issues on which the city advocated were thus germane to the mechanics of its function, and are clearly distinguishable from the hypothetical cases of government speech in support of particular candidates suggested by the dissent. . . . .
  • In this case, Ohio’s home rule system made [the city’s] policies subject to acceptance or rejection by ballot. In this context, a limit on government speech during elections would allow hecklers to silence the government on issues in which it has an interest and expertise-and on which citizens have an interest in hearing their government’s perspective. See Ala. Libertarian Party v. City of Birmingham, 694 F. Supp. 814, 817 (N.D. Ala.1988) (upholding promotional campaign relating to levies where the subject of the campaign was “related to the common needs of all citizens”). Because [the city’s] speech in this case was germane to its role as governor, plaintiffs have failed to show that democratic legitimacy is threatened or that [the city’s] compelled subsidy of its speech violates the Constitution.
  • The natural outcome of government speech is that some constituents will be displeased by the stance their government has taken. Displeasure does not necessarily equal unconstitutional compulsion, however, and in most cases the electoral process-not First Amendment litigation-is the appropriate recourse for such displeasure. See Johanns, 544 U.S. at 563, 125 S.Ct. 2055 (noting the importance of political accountability of decisionmakers). The needs of effective governance command that the bar limiting government speech be high. The plaintiffs in this case have failed to show that the [city’s] expenditures crossed the line separating a valid compelled subsidy from an unconstitutional one, and valid advocacy from prescription of orthodoxy.

The last case is the most relevant, both because it is from the 4th Circuit (of which Maryland is a part) and because it actually answers Adam’s question directly. It’s a 2008 case called Page.

In Page v. Lexington County School District One, 531 F.3d 275, 277 (4th Cir. 2008), the Fourth Circuit reached the same result in a case challenging a South Carolina school district’s use of its website, email, and “other forms of communication” to oppose a bill pending before the state legislature that would grant tax credits to families who home- schooled their children or enrolled them in private school. The school district, which was a “body politic and corporate” under South Carolina law, took the position that the proposed law would undermine the public education system. Id. A citizen who supported the proposed law demanded equal access to the school district’s “‘informational distribution system’” to advocate in favor of the measure. Id. When the school district refused his request, he filed suit, alleging that the school district was engaging in unconstitutional viewpoint discrimination in violation of the First Amendment. The district court granted summary judgment in favor of the school district.

The Fourth Circuit affirmed. Citing Johanns, it opined that it is “well-understood” that “[e]ven though government is supported by the taxes of all, its policies are not supported by all. It follows therefore that the government may advocate in support of its policies with speech that is not supported by all.” Id. at 280. The court emphasized that the government is “‘accountable to the electorate’” for its speech. Id. at 281 (quoting Bd. of Regents of Univ. of Wisconsin Sys. v. Southworth, 529 U.S. 217, 235 (2000)). As relevant here, the plaintiff citizen also argued that “as a general matter . . . the government speech doctrine should . . . never apply when the government attempts to influence legislation.” Id. at 287. He maintained that advocacy of that type is unique because it is not “checked by the ‘ballot box.’” Id. The Fourth Circuit disagreed. Citing Kidwell, it noted that the school board members were elected and were subject to removal in the next election “if the voters disagree[d] with the manner in which they have exercised their discretion.” Id.

Seems pretty clear, huh? So back to my question - was this an honest inquiry or a publicity stunt? Maybe we should ask Adam’s bartender. I bet he has an opinion on the subject. Everyone else seems to have one.

Outsourcing The Liquor Argument

Councilmember Roger Berliner, the lone member of the Montgomery County Council supporting privatization of the county’s liquor monopoly, has a Facebook post up about some of the problems that the Department of Liquor Control had over the holiday season.

There’s a number of comments, but this one is particularly instructive. Until some of the many good questions raised by the commenter are answered, and the suggested actions tried, there is no remotely good reason to do away with the current alcohol distribution system. I agree with the sentiments expressed wholeheartedly and without reservation. We have a first rate county government - if some part of it needs improvement, then do it.


2015 Top Posts: #21-25

Over the course of the week, I’ll be counting down the top 25 posts of 2015 (as of today, there have been 1,453 posts on Maryland Scramble to date). Today we’ll start with 21 through 25. In reverse order, of course - it’s a countdown show, after all.

25. Pena-Melnyk Lit Piece Starting off our countdown, a July 4 post that highlighted the first lit piece in any of the campaigns. An early indication of the hard work and diligence that has seen Joseline Pena-Melnyk earn the lion’s share of the endorsements in the CD4 race.

24. Anti-Semitism In Prince George’s One of the blog’s first big stories, written May 5, about a mail piece that depicted Ike Leggett and Rushern Baker as dogs doing the bidding of Chris Van Hollen, Steny Hoyer and Ben Cardin to keep Donna Edwards from winning the Senate seat.

23. BREAKING: Van Hollen COH The critical July 20 post that established Chris Van Hollen’s complete dominance of the fundraising contest in the Senate race.

22. Is Donna Edwards #McConnelling? A lighthearted November 6 post that also highlighted the role that independent expenditure spending is going to have on the Senate race. If you didn’t know what “B-roll” was, you do now.

21. “MARTIN O’MALLEY IS SO HOT OH MY GOD” This October 14 post, which links to a Buzzfeed article that shows our former governor in a bathing suit, has been consistently viewed ever since. America discovered after the first Democratic debate what we’ve known in Maryland for a long time: the guy looks good with his shirt off.

More tomorrow.

2016 Priority: Paid Sick Leave

For several years, the Maryland General Assembly has been unsuccessful in passing a paid sick leave bill. It’s a national priority for President Obama, Montgomery County did it, and the District of Columbia did it - although Prince George’s County saw its 2015 bill squelched by Council President Mel Franklin.

With the start of the legislative session only ten days away, the Post reports today that 2015 sponsors Senator Catherine Pugh and Delegate Luke Clippinger are preparing to give it another go in 2016.

Democrats will try again in 2016 to make Maryland one of the few states in the nation that require employers to provide paid sick leave for workers.

State Senate Majority Leader Catherine E. Pugh (D-Baltimore) and Del. Luke H. Clippinger (D-Baltimore) said last week that they will propose bills to require businesses with 10 or more employees to provide one hour of paid sick leave for every 30 hours of work.

Both lawmakers sponsored similar legislation in 2015, but the measures stalled at the committee level. They said that they will introduce new versions of the bills within the first weeks of the 2016 legislative session, with minor changes to clarify details such as how the rules would apply to businesses that already provide paid sick leave.

“We want to present the best bill possible, but at same time we want to accommodate as many people as we can,” Pugh said.

As always, with Larry Hogan in the governor’s office, it’s about constructing a veto proof majority from the Democratic caucus.

The 141-member House needs 85 votes to overcome a veto, and the 47-member Senate needs 29; Democrats hold 33 seats in the Senate and 91 in the House.

In 2015, 77 delegates and 22 senators co-sponsored the sick-leave bills, eight and seven votes short of a veto-proof majority, respectively.

“There was a feeling last time that the first year of a governor’s term would not be the right time to put this on his desk,” said Melissa Broome, deputy director of the Job Opportunities Task Force. “At this point, there’s really no reason to wait.”

Hogan spokeswoman Shareese DeLeaver Churchill did not offer a position on paid sick days but said the governor will “carefully review any bill that makes it to his desk.”

More than 140 groups have expressed support for Maryland sick-day legislation since October, including unions, businesses, faith-based organizations and public-health advocates.

This should be a party loyalty vote in both chambers. At some point, being a Democrat has to mean something more than just a label. This bill is about fairness, it’s about public health, and it’s about families. Pitch it right and get it done. 

Sanders Haul: $33 Million

Bernie Sanders announced yesterday that he has raised $33 million in the fourth quarter of 2015, all of it for his primary campaign. By comparison, Hillary Clinton raised $37 million for her primary campaign, but also an additional $18 million for the Democratic Party in the general election. Sanders had a very high burn rate for the quarter, spending 96% of what he took in, around $31.7 million.

Fairly or unfairly, Sanders’ failure to raise any money at all for the party is a weakness, even given the recent hostilities between the campaign and the DNC. Party stalwarts already viewed the non-Democrat with suspicion, and this information won’t help. Money for the party is ultimately critical in the general election, not just for the nominee but for broader campaign activities as well. This passage won’t help heal the rifts, either.

While Clinton has coordinated with the National Democratic Committee to raise an additional $18 million, Sanders has not replicated those efforts, despite an arrangement with the national party that allows him to do so.

Sanders and the DNC have had a turbulent relationship in recent months, punctuated by a lawsuit Sanders filed against the DNC in the wake of a controversy over a breach in a DNC voter database committed by several Sanders staffers.

“We remain happy to work with them,” Sanders spokesman Michael Briggs said Saturday, when asked about joint fundraising efforts. “The party hasn’t given us any dates for events.”

For the year, Clinton raised $112 million to Sanders’ $73 million. Clinton has $38 million in the bank heading into 2016, compared to Sanders’ $28 million.