Maryland Ain't Wisconsin and O'Malley has not Betrayed State Workers

Imagine the scene: thousands of public employees taking to the streets, crowding the state capitol, denouncing changes to their benefits. Speakers took to stage and denounced the governor, "enough is enough" they said, "leave our pensions alone" and one employee for the Department of Social Services declared "I am in an abusive relationship, with the state..."

Is this a day in the life in Wisconsin? No, the scene I just described was of Annapolis, Maryland on March 14th. Thousands of state and county employees took to the streets to protest proposed changes to the state pension and retiree health plans, and many more came to denounce Governor Martin O'Malley's proposal to fund K-12 education at last year's level.

Maryland faces a $1.4 billion dollar budget shortfall this year and after calling a special session in 2007 and signing a significant tax increase into law, O'Malley vowed to balance the fiscal year 2012 budget without raising taxes again. During his tenure as governor, O'Malley has cumulatively cut nearly $7 billion from General Fund spending. Those cuts, coupled with tax increases, and federal aid allowed the state to balance its budget every year. But the federal aid is gone and a slow economy continues to hit tax revenue.

That said, O'Malley increased K-12 education funding by over $1 billion between FY 2007 and FY 2012 - increasing funding every year except for this year. For FY 2012 O'Malley has proposed holding funding at the FY 2011 level of $5.7 billion.

With regard to pensions and retiree health, O'Malley has publicly stated that he is committed to protecting the state's defined benefit retirement system. To that end, he proposed a series of reforms that would stabilize the pension and retiree health system - systems that currently have a combined unfunded liability of roughly $34 billion.

Under the O'Malley proposal:

Current retirees will see no change in their benefits.

For current employees and teacher, a one-time choice is offered for all service beginning in FY 2012:

1. Continue to pay 5% of salary towards retirement, benefits earned prior to FY 2012 will be unchanged, but there will be a reduction to benefits earned for FY 2012 and beyond; or,
2. Increase their contribution to retirement from 5% to 7% of pay and continue to earn benefits at the current level.

All employees hired in FY 2012 will be automatically required to to take the 7% contribution requirement. It will also take 10 years, instead of the current 5, to be vested and early retirement will increase from the current 55 to 60. Finally, retirement benefits will be calculated based on the employees highest five years of salary rather than the highest three years.

As for reforms to employee health benefits, the most significant change would be a gradual shift of employees from a state prescription drug benefit to the Medicare Part D drug benefit.

So to recap - O'Malley's proposal would achieve 80% funding of the state pension system by 2023 (the actuarially recommended level) and have no impact on current retirees and no impact on benefits already earned by active or former employees/teachers. Facing a $1.4 billion shortfall, O'Malley has maintained funding for K-12 education and introduced modest reforms to the pension system meant to protect it's long term health. And though state employees (myself included) have faced multiple furlough days, there have been no layoffs.

In Wisconsin, by means of comparison, the state faces a $136 million budget shortfall for FY 2011. The Legislative Fiscal Bureau estimates that "more than half" of the shortfall stems from a series of three tax cut measures signed into law by Governor Scott Walker after being passed in a special session of the legislature that he called. Governor Walker's budget includes a $900 million cut to K-12 education over two years, Walker has also proposed that state workers begin paying 5.8% of their salary into their pansions (up from zero) and that their contribution to their insurance premiums double from 6.2% to 12.6%. He recently signed legislation that strips from state workers their collective bargaining rights for health benefits, and limits their annual salary increases. He had threatened to layoff 1,500 state employees. To be sure, even after the increases in pension and premium contributions, Wisconsin public employees will contribute much less toward their benefits than most private sector employees and whereas Wisconsin public employees would still retain some collective bargaining rights Maryland public employees have very limited collective bargaining rights. Though some Maryland employees are represented by unions and have the right to bargain, there is no binding arbitration in the state and no right to strike.

But when comparing the real impact on workers, their wages, and their current rights the changes that have been proposed in Maryland pale in comparison to what is happening in Wisconsin. Governor O'Malley has proposed modest changes in an effort to protect the state pension system, protesting those changes seems misguided and counterproductive.

In-State Tuition for Undocumented Students? Of Course

The Maryland Senate has approved, by a 27-20 vote, legislation that would grant in-state tuition to undocumented students at public universities and community colleges. The bill would place significant restrictions on undocumented students before qualifying for in-state tuition, they must:

• graduate from a Maryland high school and then attend a community college within the high school’s jurisdiction,
• prove that taxes were paid by the student, parent or legal guardian for three years before entering college
• complete an associate’s degree, or 60 credits, from a community college before they can qualify for in-state tuition at a four-year Maryland university
• show proof of paid state income taxes while attending community college, and
• sign an affidavit stating they will apply for legal residency when they are eligible

If they meet all of those requirements, then they can qualify for in-state tuition at a savings of about $10,000 per year.

Among those voting against the legislation were Senate Republican Leader Nancy Jacobs and Democratic Sen. Robert Zirkin - both had voted for a far more liberal version of the bill in 2003. That bill passed, but was vetoed by then governor Robert Ehrlich. Zirkin explained that his thinking on immigration had "evolved" since 2003 - by evolved he likely means that he has been influenced by anti-immigrant hysteria.

Critics contend that the bill punishes legal residents, rewards illegal activity and violates federal immigration law which prohibits “undocumented immigrants from obtaining a postsecondary education benefit that U.S. citizens cannot obtain." Ten other states offer similar in-state savings and have based eligibility on where the student went to high school, not on immigration status. Similarly, the Maryland legislation applies to all students regardless of residency status.

As for rewarding illegal activity, the kids affected by this bill did not break the law - their parents did - but what parent wouldn't risk anything and everything to provide a better life for their children? There are approximately 2 million undocumented children living in the United States today - these children were born outside the United States, but brought here illegally by their parents at a young age. These kids were raised in America, educated in our schools, they are Americans. Many of theses kids would consider America to be their home country and their actual home country to be a foreign land. About 65,000 of these kids graduate from our high schools every year - and face a future of virtually no options. Punishing these kids for choices made by their parents imposes upon them an unwarranted penalty and burden.

I recently met one of these students - she was brought to America from Guatemala at age 8 by her parents. She is a junior at a Maryland high school and has a 3.9 GPA, by all measures she is an exceptional student. A Supreme Court ruling from 1982 grants her the right to be educated in a public school, but upon graduation she has no real options. She cannot return to the country of her birth, not only did she leave there when she was a child, she now has three siblings - all born in the United States and all legal citizens. The idea that she would be separated from her family and return to a country that she does not know makes no sense. She has lived in America longer than her young siblings, yet because they were born in the U.S. they can get in-state tuition, a driver’s license, and a job no questions asked. Would we not be better served by rewarding her ambition and academic acheivement, by investing in her, by providing her a real opportunity to become a legal resident? What good is accomplished by marginalizing her or forcing her to live in the shadows?

No one is served by making it harder for students such as this to attend college. In-state tuition is appropriate for these students as they truly are residents of the state, they are students in the public school system, and their parents - though here illegally - do pay state taxes (in fact, they pay more in taxes than the recieve in benefits). The list of requirements placed on undocumented students seeking in-state tuition are arduous and anyone willing to meet those requirements is certainly worth the investment. One can only hope that the Maryland House of Delegates has more backbone when it comes to this issue than they had on the question of marriage equality.

Marriage Discrimination Comes Full Circle in Maryland

A bill to legalize same-sex marriage in Maryland died today in the House of Delegates. According to the Washington Post, the bill died as the result of opposition by Democrats in Southern Maryland (my home territory) and African-American Democrats from Prince Georges County who cited religious opposition to the bill among their constituents.

It is impossible to not see the sad irony of African-American lawmakers using religion as their justification for casting a vote against marriage equality. The arguments against interracial marriages were often steeped in religious rhetoric.

In June of 1958, Mildred Jeter, a black woman, and Richard Loving, a white man, left their home state of Virginia and traveled to Washington, DC to get married. Interracial marriages were illegal in Virginia.  Upon return to the state, the newlyweds were charged with violating state law. In January of 1959, the Lovings pled guilty, but their sentence was suspended after they agreed to leave the state.

The judge that presided over the case had this to say with regard to Virginia's ban on interracial marriage "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

To be fair, many religious organizations eventually became the most vocal opponents of bans on interracial marriage, but the use of religious justifications by opponents of interracial marriage continued. Maryland banned interracial marriages until 1967.

In 1967, in Loving v. Virginia, the Supreme Court overturned bans on interracial marriage. The court determined that marriage is one of the "basic civil rights of man...To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

Here we are 44 years later and we have simply decided to replace race with gender preference - otherwise, the justification, the discrimination and the denial of basic equality remains the same. What is different about the story today, however, is that the discrimination has come full circle and the once discriminated against have now joined the ranks of the discriminators. This is a sad day for Maryland.

In Maryland, a Time to Lead

Maryland's House of Delegates will likely vote today on whether or not to legalize same-sex marriage in the state. By most counts, the legislation lacks the 71 votes need to pass. I have already written extensively about this issue and stand by prior comments and criticisms of the many delegates who appear to be unprepared for the awesome responsibility of legislating.

Today, I simply want to ask every member of the House of Delegates to look forward, beyond this vote, beyond 2012 or 2014.  Look 20 years into the future, a future where same-sex marriage is legal everywhere - a likely scenario given the dramatic changes in public opinion on the issue. Future generations will look to this era in American history with the same confusion and embarrassment that our generation looks to the era of segregation and anti-miscegenation laws. That future generation will wonder how intolerance, hate, and bigotry could have so defined our public policy with regard to gender preference, much the same as we wonder how we ever believed that the color of one's skin should determine one's rights.

Many members of the General Assembly will have children, grandchildren, or great grandchildren among that future generation. I ask those members, what will you say when your child or grandchild ask what role you played in the fight for equality?  Will you be able to say that you stood at the vanguard of the battle, that you cast a vote for equality that rippled across other states and set a new standard for tolerance? Or, will you lower your voice and your head and explain that when the time came to stand and be counted -- to lead -- you simply weren't up to the task?

Twenty years from now, will you be proud of the vote you'll cast today?

A Civics Lesson for Maryland's Leaders

As a professor of political science I admit that I tend to view political issues through a slightly different lens than many voters and certainly many elected leaders. Few things frustrate me more than when people fundamentally fail to understand the difference between a direct democracy and a representative republic. America is of course the latter, yet is all too often treated by voters and even representatives as if it is the former.

I've thought of this important distinction quite a lot lately as Maryland's legislature has been considering a bill that would legalize same sex marriage. Similar bills had been introduced in the past, but they never survived Maryland's Senate - considered by many to be the more conservative half of the Maryland Assembly. When the legislation was introduced this year, political observers in the state again viewed the Senate as the challenge and the House of Delegates as more friendly territory. Then the conventional wisdom was upended. The state Senate passed the marriage equality legislation by a vote of 25-21 after little more than 2 weeks of wrangling. Shortly after passing in the Senate, it became clear that the House of Delegates was not nearly so friendly.

What was most surprising was that the bill was being derailed in the House not by vocal opponents of the measure, but rather by delegates who had openly supported, even co-sponsored the measure. Dels. Tiffany Alston and Jill Carter prevented a vote on the bill in the Judiciary committee because they were having second thoughts about a bill each co-sponsored. In the end, the bill was approved by the committee - Carter voted for it, but Alston voted against it complaining "This has not been the deliberative process that we normally engage in in this committee." Perhaps the committee could have deliberated more had she not staged a walk-out when the bill was up for consideration.

Another bill sponsor, Del. Sam Arora, suddenly announced that he was opposed to the bill he sponsored and would vote against it on the floor. Two days later he announced that he once again supported the bill that he had co-sponsored.

All of this intrigue is likely the result of a simple gamble taken by many delegates. They assumed that same sex marriage would die in the Senate, as always, and they would never be called upon to cast a vote. Then the unimaginable happened, the moment so many representatives dread - they had to cast a contentious vote. They sponsored the bill believing that it would win them favor among some constituent groups while never really worrying about a backlash from opponents for a vote that would never come.

When it became clear that a vote would come, all of those opponents started reaching out to their delegates and voicing their concern. Many supporters and even co-sponsors simply were not ready for the pressure and they wavered, buckled, flip-flopped and altogether embarrassed themselves.

Especially frustrating has been the comments and justifications offered by many of these delegates. Del. Arora, after changing his mind about changing his mind stated that he would support the bill in committee and "On the floor, I will vote to send the bill to the governor so that Marylanders can ultimately decide this issue at the polls... I think that is appropriate." Arora was speaking to the expected petition for a referendum - Maryland, voters may challenge recently enacted legislation via a ballot initiative.

Maryland Governor Martin O'Malley, who once supported having the legislature resolve this issue and indicated that he would sign whatever compromise legislation the legislature delivered to his desk, has been largely silent on this issue. O'Malley, as chairman of the Democratic Governors Association, has been happy to engage in high profile battles with Republican governors like Chris Christie or Scott Walker over issues of union rights, public pensions, and health reform but has chosen to stand on the sidelines as his own state debates the preeminent civil rights issue of the day. When O'Malley did enter the fray his contribution was that he wished the House of Delegates would come together and compromise on a bill, that he would sign legislation legalizing gay marriage, but "We should let the people decide." Again referring to the expected ballot initiative.

After voting against the bill that she co-sponsored, Del. Alston said "I think people make the best decisions they can with the options that are available to them... I don't think anyone should hold any of our decisions against us, because this is a very difficult decision." 

Arora, O'Malley, and Alston need to better understand that important distinction between direct democracy and representative republic. In Federalist 10 James Madison spoke of direct democracies as "spectacles of turbulence and contention." In a representative republic "the delegation of the government... to a small number of citizens elected by the rest..." These representatives, will "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."

Madison is telling us that in a representative republic we entrust our elected leaders to use their judgment when making decisions. It is not for them to place their fingers in the wind and vacillate with the ebb and flow of public opinion. It is for them to act based on their conception of what is best for community and country (or state).

None of this should be misconstrued as indicating that the voters have no say, of course they do. Madison wrote of this in Federalist 57, "Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it."

Here, Madison is telling us that those elected to lead are to exercise their judgment, to do what they think best, but to know that they will ultimately be held to account for their decisions via elections - that is when the people speak. Madison may have been writing about the US Congress specifically, but he was also writing of the concept of representation generally.

When O'Malley and Arora speak of letting the people decide, one wonders, what did the people of Maryland do on November 2, 2010 if not decide? The voters elected every member of the state Senate, every member of the House of Delegates, and Governor O'Malley. The obligation now falls on the elected to make the tough decisions and to exercise good judgment - not to rely on phone calls, public pressure, opinion polls or any other manner of non-binding expression of public sentiment.  On November 4, 2014, Dels. Alston, Arora, Carter and every other member of the Assembly will face the voters' binding judgment - but before that day they have an obligation to act, to decide, to lead.

In Maryland, the right to referendum exists and the voters of the state are entitled to render their judgment on any particular piece of legislation, but before that can happen it falls upon our elected leaders to make a decision - no matter how hard and no matter the potential impact on their political career.

Too many of the problems in our states and in our nation can be linked to elected leaders making decisions based on the best interests of their reelection campaigns instead of the best interests of the community. We're certainly seeing that in Maryland as our state considers legalizing same sex marriage.

Civil Unions for All?

In a report at MyFoxDC, Del. Alston's position has been clarified considerably. Alston wishes to do away with marriage altogether, and have Maryland recognize only civil unions.

"I believe, as a government, we should issue something that is the same for everybody... And I think, if we wanted to issue a license to everybody and call it a civil union license. And then everybody in the state - whether heterosexual or homosexual - would get the same exact license."

This position clarification makes clear that she recognizes that it would be discriminatory to have marriage for one group and civil unions for another - there would be no separate but equal issue as I wrote about yesterday. But, have we really come to this? Is Alston really saying that she would rather see "marriage" cease to exist in Maryland than extend the right to marry to same sex couples? Following the 1954 Brown v. Board of Education decision ending racial segregation in public schools many state and local governments resisted integration. The Virginia Assembly passed laws allowing the governor to close integrated schools. In Prince Edward County Virginia every public school in the county was closed to avoid integration.

This is just not the path we should be following.

And let me be clear, I am not equating the conditions of racial segregation to the marriage/civil union issue, rather I am equating the basic concept of providing separate institutions or provisions based on a decision that a designated class of people are not deserving of the same rights and protections afforded to most. Civil unions, whether for same sex couples or for everyone, only make sense in a world where same sex couples are considered to be unworthy of the institution of marriage.

A new poll from Pew finds that public support has been rising every year and at present 45% support it and 46% oppose. But when considering polls that provide respondents with a choice between Opposing same sex marriage, Supporting same sex marriage, or Supporting civil unions, an average of poll responses compiled by Charles Franklin shows a clear plurality now supports same sex marriage. In the span of only 4 years support for same sex marriage has moved from a third place finish among those three options to the preferred option.

The American people are clearly moving in the direction of outright support for marriage equality - Maryland has the chance to be on the leading edge of that trend. Ending marriage and replacing it with civil unions would not be a step forward, it would be a step behind.

Separate but Equal in Maryland, Roger Taney Would be so Proud

Update: Del. Alston's position has been clarified - she would end marriage in Maryland and replace it with civili unions for all - please see my updated post. This certainly negates the separate but equal issue, but does not really resolve much of anything.

As a follow up to her decision to reconsider supporting a marriage equality bill that she co-sponsored, Del. Tiffany Alston says that she has found the solution - an amendment that would offer civil unions instead. "I have what I believe to be a solution..." Alston reportedly said.

Civil Unions is not an altogether new solution, 100 years ago we referred to such solutions as "separate but equal." Under the guise of separate but equal, African-Americans were entitled to receive the very same public services and accommodations as whites - public schools, bathrooms, water fountains - but states were free to provide different facilities for each. The U.S. Supreme Court endorsed the policy in 1896 in Plessy v. Ferguson and six decades of legal segregation followed - until a later court, in Brown v. Board of Education of Topeka, acknowledged what everyone knew: separate but equal was anything but equal.

If Maryland decides as a matter of law that heterosexual couples can marry, but homosexual couples must enter civil unions then it will take the coward's way out and declare that separate but equal is an acceptable public policy - at least the state would be living up to the legacy of native son Roger Taney - former member of the House of Delegates, former state senator, and, as Chief Justice of the Supreme Court, author of the infamous Dred Scott decision - but is that the legacy Del. Alston, or any other member of the assembly, wants to leave?

Same-Sex Marriage Intrigue in Maryland

Update 2: Separate but Equal in Maryland, Roger Taney Would be so Proud


Update: A vote is now expected tomorrow. Del. Carter has indicated that she will vote in favor of the bill. Del. Alston has not stated how she intends to vote.

Legislation legalizing same-sex civil marriage in Maryland passed by a relatively comfortable 25-21 margin in the state Senate last week. Most analysts considered the Senate to be the tougher challenge and assumed that passage would be rather easy to secure in the Maryland House of Delegates... apparently not. As the House Judiciary Committee was preparing to vote to send the bill to the floor 2 members of the committee staged a walk-out and ended consideration of the bill. Dels. Jill Carter of Baltimore and Tiffany Alston of Prince Georges County decided that they weren't prepared to vote for the legislation - an incredibly interesting and mindboggling decision given that both are co-sponsor of the bill.

Del. Carter later indicated that she was withholding support because she feels that the Assembly should be focused on more important issue such as education or child custody... one may reasonably ask then, why she chose to sponsor a bill that she deemed to be of lesser importance. Alston told press outlets that she was reconsidering her position, but later issued a statement in which she wrote "As a law maker it is my duty and privilege to serve the people and try to find balance and equity where inequity exits. This duty is compounded when your personal religious beliefs are contrary to what you believe to be fundamentally right for society.... Accordingly, I have resolved that if and when the chairman calls the vote I will be ready to vote based on what I believe is right..”

Many interpret Alston's statement to be an indication that she will support the bill. In another development, Del. Melvin Stukes of Baltimore withdrew his sponsorship of the bill explaining that he thought the bill only provided for civil unions and not for civil marriage. In the spirit of full disclosure, I know Del. Stukes and have the utmost respect for him, but the text of the bill has always been clear with regard to legalizing civil marriage.

So what's happening in the Maryland House? Why are co-sponsors of the bill flaking out? The most likely explanation is that they sponsored the legislation based on the assumption that it would never pass in the Senate and they would never be called upon to cast a vote in favor of it. Now, there is a very real possibility that the bill will become law and these lawmakers were not prepared for the pressure of actually casting a vote.

It is likely more than a coincidence that the three delegates referenced are African American and represent predominantly African-American constituencies. As reported by the Washington Post, African-American churches and religious leaders have emerged as a strong voice of opposition to the legalization of same-sex marriage (as have Catholic churches and leaders). No doubt Dels. Stukes, Carter, and Alston have been hearing much of that opposition.

If they happen to be reading this blog post I would ask that they consider the words of Rep. John Lewis, one of America's greatest heroes of the Civil Rights movement.

Writing in 2003 Lewis declared in no uncertain terms “I have fought too hard and for too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation. I’ve heard the reasons for opposing civil marriage for same-sex couples. Cut through the distractions, and they stink of the same fear, hatred and intolerance I have known in racism and in bigotry.”

Fifty years ago, many states declared that African-Americans were not free to marry the person of their choosing. For a reason as arbitrary as the color of one's skin, a basic civil right was denied. Today, even more states deny the right to marry based on sexual orientation - is that truly less arbitrary?

One need not equate the struggle against generations of pain, suffering, and discrimination suffered by African Americans with the contemporary civil rights struggles of gay and lesbian Americans - but one should certainly equate the basic concept of fairness and equality under the law. In Loving v Virginia, the 1967 Supreme Court decision that outlawed bans on interracial marriage in the U.S., the court declared marriage to be a fundamental civil right. I would ask Dels. Stukes, Carter, Alston, and every other delegate - will you support this fundamental civil right or not?