Category: State Legislation
The Push and Pull of Municipal Fossil Fuel Bans in Massachusetts
In 2019, Brookline, Massachusetts became the first municipality outside of California to ban fossil fuels in new construction. The move was part of a growing movement among cities and towns to ban fossil fuel infrastructure, such as hookups for oil or natural gas use, in newly constructed buildings. Fossil fuel bans of this nature typically aim to curb emissions from energy use in buildings, which in many municipalities is the leading source of emissions, through electrification. Electricity use in buildings produces less carbon emissions than burning oil and gas directly and those emissions will continue to decrease as more renewable resources are added to the electricity grid.
Unfortunately for Brookline, the Attorney General’s Municipal Law Unit disapproved of Brookline’s fossil fuel ban in 2020, finding that the ban was preempted by state law. Not easily deterred, Brookline passed a new set of by-laws in 2021. These by-laws were worded differently than the first attempt, framed as requirements for building permits rather than an outright ban. However, these by-laws fared no better than the first ban, and the Attorney General issued a decision in 2022 once again disapproving of the by-law amendments because they were preempted by Chapter 40A (regulating municipal zoning), Chapter 164 (regulating natural gas), and the State Building Code.
Meanwhile, in the time between when Brookline passed its first fossil fuel ban and when the Attorney General issued its decision about the legality of the second ban, dozens of other Massachusetts municipalities became interested in enacting fossil fuel bans of their own. Some of these municipalities submitted home rule petitions to the Massachusetts legislature, asking the legislature to grant their individual municipalities the authority to ban fossil fuel infrastructure on a case-by-case basis. State Representative Tami Gouveia and State Senator Jamie Eldridge of Acton also introduced a bill during the 2021–2022 session that would have granted every municipality in the commonwealth the power to adopt a requirement for all-electric construction without passing and submitting a home rule petition.
The result was a compromise: The legislature passed An Act Driving Clean Energy and Offshore Wind in August of 2022. The law, among other things, authorized a pilot program enabling up to ten cities and towns to adopt and amend ordinances or by-laws to require new building construction or major renovation projects to be fossil fuel-free. The Massachusetts Department of Energy Resources (DOER) was tasked with developing the pilot program and deciding which municipalities would participate. Among requirements for cities and towns seeking to join the pilot program for fossil fuel bans is having a minimum of ten percent affordable housing.
DOER has already received more than ten applications from Massachusetts cities and towns wishing to join the pilot program, but under the draft regulations DOER published in February of this year, municipalities would have to wait until early 2024 at the earliest to implement their bans. This long period for implementation has disturbed members of the legislature who championed and passed the pilot program into law. Senator Michael Barrett, the Senate Chair of the Joint Committee on Telecommunications, Utilities and Energy recently told GBH News that the proposal would “delay the entire process much longer than the Legislature ever imagined.” Pressure from both the legislature and the municipalities seeking to join the pilot program will likely continue to mount as the group of cities and towns now includes the City of Boston, the largest city in the commonwealth. With advocacy groups concerned that the delay combined with limiting the pilot program to ten municipalities will hold the commonwealth back from meeting its goal of reaching net zero carbon emissions by 2050, legislators may be reconsidering the more conservative approach they took by passing the pilot program rather than blanket approval for cities and towns to enact fossil fuel bans.
Opponents and those concerned about the impacts of fossil fuel bans, however, may be heartened by the delay. Governor Charlie Baker considered vetoing the energy bill because of the fossil fuel ban pilot program because of the possibility that banning fossil fuels in new construction might make it more difficult to build affordable housing. In a state experiencing what many characterize as an affordable housing crisis, this concern is not uncommon, the thought process being that if there is inconsistency in requirements for developers between municipalities, developers, especially developers of affordable housing, will prioritize projects in communities with fewer or less expensive requirements. Many of the cities and towns that have already stepped forward to join the pilot program are fairly wealthy and may not be as concerned with the affect of a fossil fuel ban on the costs of housing development.
Yet, there may still be reason for optimism. As an example of what may be possible in a future that includes municipal fossil fuel bans, the Town of Brookline recently approved an affordable housing project that will be powered exclusively by electricity. In addition, Boston Mayor Michelle Wu recently signed an executive order that bans fossil fuel use in new city-owned buildings and in major renovations of municipal buildings. Even without municipal fossil fuel bans in place, some developers, including affordable housing developers, in Massachusetts communities are choosing to build fossil fuel-free.
The future of fossil fuel-free building in Massachusetts is uncertain. The legislature may choose to take a more aggressive approach than it did during the last session, or it may wait to see how DOER’s implementation of the pilot program goes, leaving Massachusetts cities and towns and developers to continue to innovate on their own. States are often called “laboratories of democracy,” but when it comes to issues like climate change, where municipalities acting individually may be able to make a large impact, that label may better suit cities and towns as they try again and again to form creative solutions where their state legislatures fall short.
Hayley Kallfelz graduated with a juris doctor from Boston University School of Law in May 2023.
End the Request: It’s Time for Boston’s Biggest Landowners to Pay Their Fair Share
For the second time, Massachusetts State Representative Erika Uyterhoeven (D-Somerville) filed a bill concerning payments in lieu of taxes to cities and towns. This bill would strengthen and codify a Boston program, which requests payment from certain institutions that do not pay property taxes. It is important that this bill passes during the 2023-24 session because, without it, Boston (and other municipalities) will continue to subsidize large, private organizations at the expense of its own residents.
The City of Boston’s budget
The City of Boston’s operating budget consists of revenue from property taxes, state aid, local revenue, and, to a small extent, non-recurring revenue (e.g., funds from the American Rescue Plan Act). This revenue is used to fund programs and services, including public education, public safety, city departments, and transportation. Property taxes are consistently the City’s largest source of revenue, and its share size continues to increase as state aid decreases. For example, 74% of the City’s revenue is derived from property taxes this year compared to 52% in 2002.
Boston residential taxpayers currently pay $10.74 per $1,000 value in property taxes. This number is higher than its surrounding municipalities: Cambridge taxpayers spend $5.86; Somerville taxpayers spend $10.34 and Medford taxpayers spend $8.65. Boston commercial taxpayers, including small businesses pay $24.68 per $1,000 value in property taxes. This number is also higher than its surrounding municipalities: Cambridge commercial tax payers spend $11.23, Somerville commercial taxpayers spend $17.35, and Medford commercial taxpayers spend $16.56.
Part of the reason why Boston’s property taxes are so high is that Boston’s tax base is constrained. Boston’s geographic region is relatively small and is home to many tax-exempt institutions.
52% of Boston’s area is tax exempt.
Tax-exempt areas include public land owned by the city, state, and federal government along with private land owned by universities, hospitals, and cultural institutions. These institutions are not required to pay property taxes as nonprofit charitable organizations under section 501(c)(3) of the Internal Revenue Code. In Boston, this includes large, private institutions––like Mass General Brigham, Harvard, Boston University, and Northeastern––that together own over $14 billion of Boston’s real estate.
These large institutions do make some financial contributions to the city of Boston via the Payment in Lieu of Tax (“PILOT”) program. The PILOT program asks educational, medical, and cultural institutions with more than $15 million worth of tax-exempt property to make voluntary payments to the City of Boston. These contributions are supposed to be 25% of the would-be property taxes, and up to 50% of this payment can be in the form of “community benefits.” The 25% represents a “fair share” because large institutions’ use of essential services, such as fire safety, roads, public transportation, and sewage disposal generally make up 25% of a municipality’s budget.
The PILOT task force defines Community benefits “as services that directly benefit City of Boston residents; support the City’s mission and priorities with the idea in mind that the City would support such an initiative in its budget if the institution did not provide it; emphasize ways in which the City and the institution can collaborate to address shared goals; and, are quantifiable.” For example, these services can take the form of individual scholarships and job training initiatives. Other examples include summer camp and after school activities, preventative medical care, and maintenance of public spaces.
PILOT does not go far enough
Institutions often do not fulfill their PILOT requests from the City of Boston. During the 2022 fiscal year, Northeastern met 67% of its PILOT request. Boston University and Harvard did better, meeting 80% and 79% of their PILOT requests, respectively. However, these institutions tend to max out their community benefits. For example, during the 2022 fiscal year, the City of Boston requested $66,709,087 from educational institutions and received $30,793,921 in community benefits and only $14,788,450 in cash contributions. Here, it is worth emphasizing that $66,709,087 is only one quarter of what these institutions would pay if their properties were not tax-exempt.
Ever more, these private institutions look increasingly less like tax-exempt charitable organizations. Many of the institutions have large budgets. For example, Harvard has its own Management Company overseeing the investing of its $53 billion endowment. Harvard Management Company is registered as a 501(c)(3) non-profit and does not pay property taxes in Boston.
Boston should be able to increase the amount of money generated from the city’s PILOT program to alleviate the pressure on its residents and small business owners and to ensure that large institutions pay their fair share for essential services. Changing these institutions from 501(c)(3) status to require payment of property taxes is likely a political and bureaucratic nightmare, especially given these institutions’ reliance on the nonprofit status. That said, some Massachusetts legislators are taking steps to ensure that universities, hospitals, and cultural institutions start to pay their fair share.
Bill H.2963
Representative Erika Uyterhoeven refiled Bill H.2963, An Act Relative to Payments In Lieu of Taxation by Organizations Exempt from the Property Tax on January 19 this year. The proposed bill:
- allows cities or towns to charge 501(c)(3) organizations 25% of their would-be property taxes, so long as the exempt organization owns at least $15 million worth of property;
- requires these cities or towns to adopt an ordinance or bylaw to describing the agreement between the municipality and the tax-exempt organizations; and
- allows these local ordinances and bylaws to have exemptions from payment and considerations of community benefits in lieu of cash contributions.
Importantly, this is a local option bill, which means that municipalities are allowed to require large, non-profit institutions to pay 25% of their would-be property taxes but do not have to. The language of this bill largely tracks Boston’s PILOT program but mandates (rather than requests) the payment of 25% of a large institution’s would-be taxes. It is not clear whether this mandate runs afoul of the Massachusetts Constitution, which requires properties in the same property class (e.g., residential, commercial, industrial) to be taxed at the same rate. It is possible that the bill is meant to be a “fee” rather than a tax, in which case the funds should only be used for essential services.
During the 2021-22 session, Representative Uyterhoeven testified at the previous bill’s public hearing. She emphasized that the bill is for very large institutions and “not for churches, not for small kitchens, or anything like that, it’s really just for the large nonprofits, the health care facilities, universities. This comes from an equity issue around large nonprofits needing to pay their faire share to all of the things that municipal budgets serve them.” That said, the bill does not contemplate an exemption for churches, and it is possible that at least some churches have $15 worth of land and cannot afford the 25% of their would-be property taxes. It would be up to municipalities to include exemptions for specific organizations within their bylaws and ordinances, which may be politically difficult.
The City of Boston should opt-in
The Massachusetts State House
Boston, 1787
Bill H.2963 is currently with the Committee on Revenue. It is not clear that this bill has traction or will pass into law––the legislature has considered similar bills as early as 2013 and the bill was sent for study last session, often a quiet way to kill a bill.
However, if the bill does pass, Mayor Wu and her team should push to adopt an ordinance or bylaw given the City of Boston’s reliance on property taxes. Boston lawmakers should be conscious of their exemptions. One worry is that residents may make value judgments and target organizations that they do not like through a mandated fee.
Boston lawmakers should consider lowering the percentage of community benefits the City of Boston will accept. Although there is great value in community benefits, in practice they benefit individual residents rather than fund the City’s operating budget.
The Massachusetts legislature has an opportunity to fix a loophole in property taxes that allows large, private institutions to take advantage of their 501(c)(3) status to avoid paying property taxes. Bill H.2963 is a step in ensuring that these institutions start to pay their fair share and is a model for other states and municipalities dealing with similar challenges. If the bill becomes law, the City of Boston urgently needs to adopt an ordinance or bylaw to relieve economic pressure on residents and businesses, who currently fund the majority of the City’s operating budget.
Alison Kimball anticipates graduating with a juris doctor from Boston University School of Law in May 2024.
Revenge Porn and Deep Fake Technology: The Latest Iteration of Online Abuse
Revenge Porn
The rise of the digital age has brought many advancements to our society. But it has also enabled new forms of online harassment and abuse. Revenge porn (otherwise referred to as image-based sexual abuse or nonconsensual pornography) is a type of gender-based abuse in which sexually explicit photos or videos are shared without the consent of those pictured. The prevalence of cell phones and user-generated content websites has turned revenge porn into a common phenomenon. While some legislation has been passed to meet this rising threat, technology has evolved to the point that many of these statutes no longer meet the challenge of the current environment. State legislators have left wide loopholes in their revenge porn statutes, and the rise in Artificial Intelligence (AI) has created a new brand of revenge porn missing entirely from state statutes. Furthermore, the federal government has so far failed to make revenge porn in any form a criminal offense.
As of late 2022, forty-eight states and D.C. have enacted some form of revenge porn legislation (the two states that have yet to enact formal revenge porn statutes are Massachusetts and South Carolina). Some of these statutes criminalize revenge porn, while others allow victims to recover monetary damages under existing civil causes of action. While it is encouraging to see so many states act, efforts at the federal level have repeatedly encountered hurdles. Each time, those efforts stalled due to First Amendment concerns. Representative Jackie Speier (D-CA) crafted the Ending Nonconsensual Online user Graphic Harassment (ENOUGH) Act in 2017 to make revenge porn a federal crime, but it died in committee and expired at the end of the 115th Congress. In 2018, Senator Ben Sasse (R-NE) introduced the Malicious Deep Fake Prohibition Act, criminalizing the creation or distribution of all fake electronic media records that appear realistic (essentially, banning deep fake technology altogether). The act expired at the end of 2018 with no cosponsors. In the past four years, Representative Yvette D. Clarke (D-NY) introduced the DEEP FAKES Accountability Act twice – the first in 2019 (H.R. 3230, which died in committee at the end of 2020) and the second in 2021 (H.R. 2395, which again died in committee at the beginning of 2023). In February 2023, Senators Amy Klobuchar (D-MN) and John Cornyn (R-TX) introduced to the Senate Judiciary Committee the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act (utilizing text originally introduced by Rep. Jackie Speier). Though it should be noted that the proposed SHIELD Act would not criminalize the rising threat of AI-generated pornographic images.
Rise of Deep Fake Technology
What began as sharing consensually obtained images beyond their intended viewers has evolved into more insidious and complex crimes. Hackers have started accessing private devices to steal intimate photos for the purpose of blackmailing victims with the threat of sharing those photos online. And the rise of Artificial Intelligence (AI) has created a new type of revenge porn: deep fakes.
We have now entered a new phase of exploitation: AI-manufactured nude photos. Technology users can now utilize the photos of real people to create pornographic images and videos. There are two types of AI-generated images that relate to the problem of revenge porn: “deep fakes” and “nudified” images. Deep fakes are created when an AI program is “trained” on a reference subject. Uploaded reference photos and videos are “swapped” with target images, creating the illusion that the reference subject is saying or participating in actions that they never have. U.S. intelligence officials acknowledged deep fake technology in their annual “worldwide threat assessment” for its ability to create convincing (but false) images or videos that could influence political campaigns. In the context of revenge porn, pictures and videos of a victim can be manipulated into a convincing pornographic image or video. AI technology can also be used to “nudify” existing images. After uploading an image of a real person, a convincing nude photo can be generated using free applications and websites. While some of these apps have been banned or deleted (for example, DeepNude was shut down by its creator in 2019 after intense backlash), new apps pop up in their places.
This technology will undoubtedly exacerbate the prevalence and severity of revenge porn – with the line of what’s real and what’s generated blurring together, folks are more at risk of their image being exploited. And this technology is having a disproportionate impact on women. Sensity AI tracked online deep fake videos and found that 90%-95% of them are nonconsensual porn, and 90% of those are nonconsensual porn of women. This form of gender-based violence was recently on display when a high-profile male video game streamer accessed deep fake videos of his female colleagues and displayed them during a live stream.
This technology also creates a new legal problem: does a nude image have to be “real” for a victim to recover damages? In Ohio, for instance, it is a criminal offense to knowingly disseminate “an image of another person” who can “be identified form the image itself or from information displayed in connection with the image and the offender supplied the identifying information” when the person in the image is “in a state of nudity or is engaged in a sexual act.” It is currently unclear if an AI-generated nude image constitutes “an image of another person...” under the law. Cursory research did not unearth any lawsuits alleging the unauthorized use of personal images in AI-generated pornography. In fact, after becoming a victim to deep fake pornography herself, famed actress Scarlett Johansson told the Washington Post that she “thinks [litigation is] a useless pursuit, legally, mostly because the internet is a vast wormhole of darkness that eats itself.” However, in early 2023, artists have filed a class-action lawsuit against companies utilizing Stable Diffusion for copyright violations. This lawsuit may signal that unwilling participants in AI-generated content may could find relief in the legal system.
Virginia State Capitol, 1785
Architects: Thomas Jefferson & Charles-Louis Clérisseau
Some states have tackled head-on the issue of deep fake technology as it relates to revenge porn and sexual exploitation. In Virginia, it is a Class 1 misdemeanor for the unauthorized dissemination or selling of a sexually explicit video or image of another person created by any means whatsoever (emphasis added). The statute goes on to state that “another person” includes a person whose image was used in creating, adapting, or modifying a video or image with the intent to depict an actual person and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic. But this Virginia law is not without fault. The statute states that the image must be of a person’s genitalia, pubic area, buttocks, or breasts. Therefore, an image of a person in a compromising position or that is merely sexually suggestive would likely not be covered by this statute.
Current Remedies are Insufficient
Revenge porn victims often bring tort claims, which may include invasion of privacy, intrusion on seclusion, intentional/negligent infliction of emotional distress, defamation, and others. Specific revenge porn statutes also allow for civil recovery in some states. But revenge porn statutes have flaws. In an article authored by Professor Rebecca Defino, there are three commonly cited critiques to revenge porn statutes. The first is that many of these statutes have a malicious intent or illicit motive requirement, which requires prosecutors to prove a particular mens rea. (921; see the aforementioned Ohio statute; Missouri criminal statute; Okla. Stat. tit. 21, § 1040.13b(B)(2)). Second, many revenge porn statutes include a “harm” requirement, which is difficult to prove and requires victims to expose even more of their private life in a public arena. (921). And finally, the penalties are weak. (921). And even if a victim wins a case against a perpetrator, jail time for the perpetrator or small monetary settlements don’t provide victims what they often really desire – for their images to be taken off the Internet. The Netflix series called The Most Hated Man on the Internet shows the years long and deeply expensive journey to remove photos from a revenge porn website. While state revenge porn laws may assist victims with finding recourse, the process of removing images post-conviction can still be traumatizing and time-consuming.
While deep fake legislation is considered (or stalled) through state and federal governments, the private sector may be able to provide some solutions. A tool called “Take It Down” is funded by Meta Platforms (the owner of Facebook and Instagram) and operated by the National Center for Missing and Exploited Children. The site allows anonymous individuals to create a digital “fingerprint” of real or deepfake image. That “fingerprint” is then uploaded to a database, which certain tech companies (including Facebook, Instagram, TikTok Yubo, OnlyFans, and Pornhub) have agreed to participate in, that will remove that image from their services. This technology is not without its own limitations. If the image is on a non-participating site (currently, Twitter has not committed to the project) or is sent via an encrypted platform (like WhatsApp), the image will not be taken down.
Additionally, if the image has been cropped, edited with a filter, turned into a meme, had an emoji added, or altered in other ways, the image is considered new and requires its own “fingerprint.”
While these are not easy problems to solve, the federal government can and should criminalize revenge porn, including AI-generated revenge porn. A federal statute would provide a stronger disincentive to create pornographic deep fakes through the threat of investigations by the FBI and prosecution by the Department of Justice. (927-928). Law professor Rebecca A. Delfino drafted the Pornographic Deepfake Criminalization Act, which makes the creation or distribution of pornographic deepfakes unlawful and allows the government to impose jail time and/or fines on defendants found guilty of the crime. (928-930). Perhaps more impactfully, the proposed act allows courts to issue the destruction of the image, compel content providers to remove the image, issue an injunction to prevent further distribution of the deep fake image, and award monetary damages to the victim. (930). The law is an imperfect tool in fighting against revenge porn and AI-generated pornographic deep fakes. But to the extent that legislators can provide additional support to victims, it is their obligation to do so.
Kara Kelleher graduated from Boston University School of Law with a juris doctor in May 2023.
Accelerated Public Health Modernization in Massachusetts
Amid the ongoing COVID-19 pandemic and national movements for public health modernization, the Massachusetts Legislature tried to strengthen the Commonwealth’s public health during the summer of 2022. The Statewide Accelerated Public Health for Every Community Act (H.5014) (SAPHE 2.0) would have required local boards of health and regional health districts to comply with new minimum standards for public health service delivery. Governor Baker, however, proposed making the standards optional for municipalities, effectively killing the bill for the 2021-2022 legislative session. Fortunately, a new governor and legislature may provide some hope for this bill.
Public Health Modernization in Massachusetts
SAPHE 2.0 is a continuation of recent efforts by the Massachusetts Legislature to strengthen public health systems in the Commonwealth. In 2016, Governor Baker signed a legislative resolve establishing a special commission to “assess the effectiveness and efficiency of municipal and regional public health systems and to make recommendations regarding how to strengthen the delivery of public health services and preventive measures.” In 2019, the Special Commission on Local and Regional Public Health published a final report that found many local boards of health struggle to comply with public health service delivery statutes and regulations. More troubling, municipal compliance fell below national expectations set by frameworks like the Center for Disease Control and Prevention’s 10 Essential Public Health Services, and the Public Health Accreditation Board's Foundational Public Health Services that defines the minimum set of services and capabilities each health department required for its voluntary national public health accreditation program. The Special Commission noted that Massachusetts has 351 local boards of health–the largest number within any state, due in part to the Commonwealth’s emphasis on local autonomy–rather than the boards organized by county in other states. As a result, Massachusetts boards lack the capacity to deliver necessary public health services compared to larger health departments in other states, which have greater resources. The Special Commission recommended establishing minimum standards for public health in Massachusetts, which could help local boards of health achieve compliance with state requirements and then work toward accreditation, and facilitating cross-jurisdictional service sharing arrangements, among other reforms.
In April 2020, Governor Baker signed An Act Relative to Strengthening the Local and Regional Public Health System into law. The Act established the “State Action for Public Health Excellence” (SAPHE) program that aimed to “improve the efficiency and effectiveness of the delivery of local public health services” in the Commonwealth through funding and technical assistance related to cross-jurisdictional collaboration, data sharing, workforce development, and other domains. The Act also charged DPH with defining minimum standards for foundational public health services in Massachusetts to enhance governmental public health performance. This legislation, however, made these standards voluntary and aspirational. The Act incentivized participation through a grant program to fund municipalities involved in planning, capacity building, and implementation of cross-jurisdictional sharing arrangements. The Department of Public Health currently funds 41 grantees representing 76% of municipalities across the state.
SAPHE 2.0
The Statewide Accelerated Public Health for Every Community Act, dubbed “SAPHE 2.0,” builds upon the 2020 law to continue strengthening public health systems in the Commonwealth. Critically, the bill would require municipalities to meet DPH’s minimum public health standards and provide material support to municipalities. SAPHE 2.0 would have also augmented the existing grant program in two ways: expanding the availability of competitive grants (establishment of shared service arrangements and expansion of existing arrangements) and providing grants and technical assistance to help health departments with “limited operation capacity” to meet requirements. The House and Senate unanimously passed the bill on July 29, 2022.
Proponents of SAPHE 2.0 support standardization of public health performance to ensure all Massachusetts residents receive comprehensive, high-quality public health services. A coalition led by the Massachusetts Public Health Association (MPHA) advocated for the bill, emphasizing that the decentralized approach to public health service delivery in the Commonwealth “leads to extreme variability across municipalities.” The MPHA also noted that the COVID-19 pandemic has exacerbated underlying public health inequities and called on the Legislature to “invest in creating a stronger, more equitable system that will provide essential public health protections to all residents.”
Executive Disapproval
In August 2022, Governor Charlie Baker declined to sign the bill and returned it to the Legislature with significant proposed amendments. Governor Baker supported the bill’s objective to “provide high-quality, coordinated and more uniform public health services across the Commonwealth” but expressed concern about the lack of guaranteed state funding to complement performance requirements for municipalities, which creates the potential for unfunded mandates. He also expressed concern that the bill lacked provisions requiring municipalities to maintain their own current levels of public health funding as a condition of receiving support from DPH. Accordingly, Governor Baker proposed to not mandate that local boards of health meet minimum public health standards, but instead permit them to opt in to receive funding from DPH to meet those standards while requiring them to maintain their existing municipal funding levels for public health services.
The Massachusetts State House
Boston, 1787
The MPHA criticized the proposed amendments, indicating they would “entrench the patchwork of municipal policies that makes our local public health system both ineffective and inequitable” (email newsletter on September 27, 2022). However, Governor Baker’s rejection of the bill reflects the primary motivations against it: the potential for local boards of health to receive no state funding to support their compliance with minimum standards. The Massachusetts Municipal Association (MMA) echoed Governor Baker’s sentiments, indicating support for “the intent of the legislation” but noting “strong concerns that the measure as written could impose a new annual unfunded mandate on municipalities.” Delivering testimony on the proposed bill, the MMA noted that “as written, H. 5104 does not mandate that the state meet its obligation to financially support the outlined goals. Instead, the state’s responsibilities would be subject to appropriation, while municipalities would not have that flexibility, and would be forced to fund the new costs imposed by the Department of Public Health.”
The Path Forward
SAPHE 2.0 is a microcosm of perennial public health concerns: how to deliver high-quality services and ensure equitable distributions of health burdens and benefits with limited resources. Governmental public health’s experiences during the COVID-19 pandemic laid bare structural health inequalities and emphasized the need for effective public health services and infrastructure, but also revealed logistical challenges inherent in forcing decentralized entities to act in tandem.
Although SAPHE 2.0 has been defeated in the short term, its longer-term prospects look promising: Governor Maura Healy took office in January 2023, and the Joint Committee on Public Health is considering a newly refiled version of the proposal. Public health advocates will continue to champion modernization efforts to advance the optimal health of all communities in Massachusetts.
Shannon Gonick anticipates receiving her juris doctor from Boston University School of Law in May 2024.
Boston T Party: Using Transatlantic Policymaking to Push Free Public Transit in Massachusetts
Then candidate Michelle Wu campaigns on an MBTA platform. Getty Images / Erin Clark Boston Globe
If you've lived anywhere near the Boston metropolitan area in the past few months, you will no doubt have faced a barrage of discussion in the media and manifestos about the prospects of making the T (Boston's public transport system) free for all riders. Mayor Michelle Wu has headed up the push to make the historic MBTA free and used it as a major issue in her Mayoral campaign. Mayor Wu wrote an Op-Ed in the Boston Globe as far back as January 2019 advocating for free public transit, citing improvements to air quality, economic mobility, racial equity. Wu even donned a golden, token style pendant with the classic T logo in many of her campaign advertisements. This in-vogue concept also has the support Congresswoman Ayanna Pressley and former Democratic candidate for governor and former state senator Ben Downing vowed to "make the T free by the end of his first term." Another former gubernatorial candidate state senator Sonia Chang-Diaz proposed a state-wide free public transportation agenda, starting with buses. There have been small steps toward this goal such as making three bus lines free for two years. This article is designed not to demonstrate the positives of free public transit, of which I am a strong proponent, but how we can make the program more palatable for those on Beacon Hill.
NBC Boston
But there are sceptics and critics at all levels of Massachusetts politics. Former Mayoral candidate Annissa Essaibi George would criticize the idea of going entirely “fare-free” as fanciful, while House Speaker Ron Mariano and Senate President Karen Spilka have not committed to a fare-free MBTA system. Importantly, current Massachusetts Governor Charlie Baker opposed the idea of eliminating fares, unless “Boston is willing to pay.” Baker does raise some compelling points, asking why those in “the Cape, on the North Shore, in Central or Western Mass” should pay for Boston riders. Currently, fares account for only around a third of the MBTA’s $2 billion budget, so how do you make up this shortfall in the utopia of a fare-free city?
This is a bold, progressive, and commendable policy proposition, and while it may be very popular amongst locals, there is not much appetite for it on Beacon Hill due to cost. Most proponents suggest funding this program by raising taxes. Ben Downing proposed using some of the $5 billion in funds from the American Rescue Plan Act, and tax revenue from a popular “millionaires’ tax,” as well as gas tax hikes of 10-15 cents (bearing in mind this was proposed pre-inflation and the Ukraine/Russia conflict) and a sales tax on Uber and Lyft rides. Sonia Chang-Diaz likewise has proposed levying a state millionaires’ tax to fund the policy. Michelle Wu took a slightly different approach, suggesting that “regional ballot initiatives” are the way to raise finances for a free MBTA. Regional ballot initiatives ask voters in localities in a small demographic if they approve of raising certain taxes i.e., sales, emissions, property tax. This is certainly one way to rebut Governor Baker's “why should Massachusetts pay for Boston” argument.
Temporary funding like the ARPA is not sustainable and increased gas taxes is probably a non-starter in this age of sky high gas prices, although Sen. Downing was right to use the problem to pay for the solution. A millionaires’ tax may be a popular possibility, but may not be long-standing enough or raise enough to subsidize the T. Wu’s regional ballot initiative idea is more compelling and something we see elsewhere, (California, Colorado, Georgia etc.), but asking local riders to pay for something they want to make free seems counterintuitive.
There is room, however, for creative policymaking solutions to kill two (or three) birds with one stone. Owing to my transatlantic tendencies, I believe the city of Boston should implement a “Ultra-Low Emissions Zone” used by the city of London. The ULEZ is a mapped zone in the London city centre that, once entered, registers your license plate with cameras, and charges you £12.50 for vehicles not compliant with emissions standards. In the first year, the ULEZ brought in £400 million in revenue, equivalent to around $524 million USD. Of course, congestion charges are not free of controversy, and special considerations or permits must be given to taxis, Ubers, first responders and construction companies working in the city for a prolonged period. London is, however, significantly larger than Boston, and does not use the funds to subsidise the public transportation system. This can be done on a smaller scale within the city limits of Boston, perhaps inclusive of the area spanning the green line.
What this ULEZ would do in Boston is not only grant the accessibility, economic mobility, job creation and ridership but also substantially reduce the emissions of vehicles which count towards 40% of the carbon footprint of Massachusetts. This way, you can tax the problem as well as make those who want to come to Boston pay for Boston public transit. Alongside this, the need for road maintenance, a major gripe of New Englanders, would be significantly reduced on the city’s busiest roads – a significant cost to the public purse.
An exponential increase in ridership post COVID-19, is what the T needs, and as shown by making the Route 28 bus free in a pilot scheme, ridership increases by at least 22%, something that would undoubtedly be higher in high traffic lines like the green line. Higher ridership alone can help with budgetary issues. Being able to have thousands more take the city subway into pandemic-recovering businesses and restaurants would be a welcome injection of footfall. This would be both a sustainable, and environmentally sustainable policy concept that could continually fund the shortfall that a free transit system would create in the budget.
As outlined by Attorney General and gubernatorial candidate Maura Healey, there is a growing consensus that Massachusetts infrastructure is crumbling, and drastic investment is an absolute requirement. Massachusetts is in a rare position where we can slash deadly emissions caused by vehicle pollution whilst simultaneously. The 15% of annual income that everyday Americans fork out for transportation, would be greatly reduced in metropolitan Boston. ‘But there is also momentum in the notion that environmental justice equals racial justice, and a huge step towards achieving transit justice would be taken by implementing the ULEZ to fund the hallmark of Massachusetts’ public transit system. That is how you make Boston a pioneer in sustainability, and an easy pill for Beacon Hill to swallow in one fell swoop.
Jack Ford McDonald Morton graduated from Boston University School of Law with an LLM in American Law in May 2022. He graduated from the University of Strathclyde in 2020 with an honors LLB degree in Scots and English Law. He was named a Saint Andrews Society of the State of New York scholar to attend BU Law.
Voter Suppression Laws in the Wake of Democratic Control of the Presidency and Senate
Georgia gained national attention in the 2020 election when the predominantly red state broke its 24-year streak of voting for Republican candidates in U.S. Presidential Elections. It went on to make history in early 2021 when the electorate flipped the U.S. Senate and elected Rev. Raphael Warnock and Jon Ossoff to the U.S. Senate, respectively the first Black and Jewish Senators from Georgia.
Georgia Capitol
Atlanta, 1889
A large part of this victory both in the White House and the Senate is attributed to Stacey Abrams, the Democrat gubernatorial candidate in Georgia’s 2018 election. Abrams’ gubernatorial campaign was unsuccessful, in large part because of voter suppression, but rather than wallow in defeat and fade into the background, Abrams became a loud, powerful voice—speaking against voter suppression and registering hundreds of thousands of voters in Georgia.
And now Republicans—in Georgia and across the nation—formally responded, pushing a huge new wave of voter suppression tactics in the name of “election integrity.”
S.B. 71
Among other legislation, Republicans in the Georgia Senate have proposed S.B. 71, which would change the definition of absentee voter entirely. For the past 15 years or so, Georgia has been a “no excuse needed” absentee voting state, but this bill would require people who wish to vote absentee to
- Be physically absent from their precinct during the election;
- Be able to perform any of the “official acts or duties” connected to the election;
- Be absent because of physical disability or because you’re required to give constant care to someone who is disabled;
- Be observing a religious holiday;
- Be required to remain on duty for the “protection of the health, life, or safety of the public”; or
- Be at least 65-years-old.
These extremely limited exceptions would put even more emphasis on the luxury and privilege of time. Many people cannot take an hour (or more) out of their daily schedules—balancing child care, housing matters, and work among the other minutiae of modern life—to go to the polls. The oft-used argument to that is “well, there are plenty of precincts where you can get in and out in 10 minutes.” And while that may be accurate, the problem is inherent in the argument itself: that it isn’t true of every precinct; and issues with fewer voting machines, voter purges, and, therefore, long waits tend to disproportionately affect liberal-voting communities in Republican controlled states.
In Georgia, it seems like the Republicans are worried they are seeing the writing on the wall after the voter turnout in the 2020 Presidential and Senatorial elections. Though not an overwhelming victory in any of the elections, the Democrats mustered enough of a majority to win, and with continued growth in urban areas and a push for even more change in the future, it’s incredibly likely that Georgia will continue to vote blue in the future. The state has been trending that way for years, and the 2020 election could well portend what is in store for conservatives in Georgia.
Other Voter Suppression Legislation
Throughout the nation, state legislatures have begun putting forth bills that would restrict voting access—in fact, over four times more legislation that would restrict voting has been proposed than was proposed this time last year.
Georgia is not alone in limiting absentee voting. Nine other states have proposed bills that would either eliminate “no excuse” voting or crack down on the requirements for absentee voting where “excuse” voting is already in place. Other bills make it more difficult to obtain ballots in the first place by changing the laws concerning permanent early voter lists. Some measures go so far as to eliminate permanent early voter lists (which would force people now on those lists to take more steps to vote every year; Arizona S.B. 1678, Hawaii H.B. 1262, and New Jersey S.B. 3391) while others would reduce how long someone remains on the permanent absentee voter list (Florida S.B. 90).
Other proposals concern stricter voter ID requirements—a long contentious aspect of voter suppression. States that do not currently require photo IDs to vote are considering requiring them in the future, other states are trying to restrict what kinds of photo IDs can be used (New Hampshire H.B. 429, Mississippi H.B. 543), and some would force voters to include a photocopy of their ID with their absentee ballots (Texas S.B. 1). Requiring voter ID (and particularly certain types of ID) is problematic because there are not enough opportunities for people to obtain IDs—lunch hour spent at the DMV, anyone?—and cost barriers make obtaining an ID unfeasible for many disenfranchised populations. This also ties in with the legislative efforts to reduce voter registration opportunities, whether that be election day registration or limiting or reducing automatic voter registration.
Lastly, some state legislatures have decided that amplifying voter purge practices is the way forward. The practice is already flawed (and usually ineffective and unnecessary), but the proposed legislation would expand the scale of extant purges or adopt procedures that would likely result in improper purges. Texas legislators have sent a bill to the governor that would add new criminal penalties to voting processes, enhance partisan poll-watching, and ban measures previously enacted to increase access to voting. New Hampshire has gone so far as to propose a bill that would violate the National Voter Registration Act.
Staying on our toes
Although some legislation has been proposed to expand access to voting, the backlash and restrictions are what anyone concerned with protecting the right to vote should be worried about. The proposed restrictions on voting would remove people from voter rolls, make it harder to vote in person by heightening ID requirements, erect further barriers to obtaining IDs, severely limit who can vote absentee, and add arbitrary hurdles to voting by mail generally. The individual right to vote is integral to securing and maintaining American democracy, and efforts to build barriers that would make it nearly impossible for American citizens to vote are plainly wrong. Preventing voter fraud is important, but using rhetoric about “election integrity” to justify disenfranchising certain populations is classist, racist, and morally repugnant, and that is without touching the constitutional and legal issues surrounding the matter. Already, the Democrat-controlled U.S. Congress is taking steps to prevent the voter suppression promulgated by this wave of state legislation. What Republicans who are worried about votes in the hands of marginalized communities do not realize is that it isn’t a matter of barriers and restrictive legislation, it’s a matter of time. Georgia was one of the first dominoes to fall, but it won’t be the last, especially with the federal government ready and willing to strengthen voting rights and access.
Amelia Melas anticipates graduating from Boston University School of Law in May 2022.
Decriminalize Everything? Oregon’s New Drug Laws
In November 2020, Oregon voters overwhelmingly decided to decriminalize the possession of small amounts of almost all hard drugs. Measure 110 went into effect on February 1, 2021. The legislation took a groundbreaking, albeit controversial step by reclassifying the possession of hard drugs. Offenses that were formally criminal misdemeanors, subjecting citizens to arrest, fines, and jail time, are now mere civil violations, subject only to a $100 civil citation, which can be avoided by participation in health assessments.
The measure makes possession of certain controlled substances a noncriminal violation so long as the possession is less than a specified amount:
- 1 gram of heroin;
- 1 gram of MDMA;
- 2 grams of methamphetamine;
- 40 units of LSD;
- 12 grams of psilocybin;
- 40 units of methadone;
- 40 pills of oxycodone; and
- 2 grams of cocaine.
The measure further reduces the charge from a felony to a misdemeanor for simple possession of substances where the amount is:
- 1-3 grams of heroin;
- 1-4 grams of MDMA;
- 2-8 grams of methamphetamine; and
- 2-8 grams of cocaine.
As noted by Oregon State Policy Capt. Timothy Fox, “possession of larger amounts of drugs, manufacturing and distribution are still crimes.”
The law was predicted to have a drastic impact on yearly convictions for possession of controlled substances. The Oregon Criminal Justice Commission estimated yearly convictions would decrease by a staggering 90.7%. The legislation comes approximately 50 years after President Richard Nixon famously declared his War on Drugs. While the drug war has been criticized as a racist, inhumane failure, Oregon’s recent legislation marks a significant, perhaps radical step towards restructuring the deeply flawed systems instituted over the past half century. This article will first explore the main arguments on either side of the debate regarding the wisdom and efficacy of Measure 110. Later, it will discuss some cautious conclusions and the broader implications of Measure 110 and how it might fit within the larger, national public debate regarding drug decriminalization.
The Promise
Proponents of Measure 110 see it as a much overdue remedial measure to a disastrous drug war that has done far more harm than good. Kassandra Frederique, executive director of the Drug Policy Alliance (“DPA”), remarked on its passing, “Today, the first domino of our cruel and inhuman war on drugs has fallen, setting off what we expect to be a cascade of other efforts centering health over criminalization.” Supporters highlight the wisdom of shifting from a drug policy model that focuses on punishment, incarceration and criminalization to a more progressive model that sees drug use and addiction as a disease to be treated rather than a crime to be punished. From this perspective, substance use is better addressed by providing access to physical and mental healthcare and removing the stigmatization and obstacles that traditionally accompany drug charges such as the difficulty landing jobs and finding housing. “Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem,” says Mike Schmidt, district attorney for Oregon’s most populated county.
A key provision of Measure 110 earmarks a portion of cannabis tax revenues for improving and expanding the state’s treatment system, along with drug safety education and services. To date, Oregon has generated hundreds of millions of dollars for this purpose, distributed to at least 70 different organizations in 26 different counties, aimed primarily at helping providers expand services for people with low incomes and without insurance. This kind of investment is clearly a necessary part of shifting from a model oriented around the criminal justice system to a model oriented around healthcare. In addition, proponents of Measure 110 emphasize that decriminalization will ease racial disparities in drug arrests. For example, African American Oregonians are 2.5 times as likely to be convicted of a possession felony as whites. Without delving into the reasons behind this disparity, by reducing possession convictions overall decriminalization will reduce the negative effects on minority communities. Indeed, according to Theshia Naidoo, managing director for legal affairs at DPA, although the “information is not fully available yet . . . from the data we can see, there have been no drug possession arrests in the state since the decriminalization took effect.”
The Concerns
One major area of concern is implementation. Detractors question whether Oregon’s treatment system has the resources and functionality required to support such a fundamental shift away from the criminal justice system as the primary model for addressing drug use and executing drug policy. Are the resources provided by Measure 110 adequate to handle a corresponding substantial influx of people seeking treatment? Unfortunately, It is likely still too early to tell; but shifting from the criminal justice to the health care system is undoubtedly not going to happen overnight.
Relatedly, critics question whether a civil citation akin to a parking ticket will provide the adequate impetus and resources for users to seek help. Mike Marshall, co-founder and director of Oregon Recovers, worries that “the only way to get access to recovery services is by being arrested or interacting with the criminal justice system. Measure 110 took away that pathway.” Perhaps the threat of the criminal justice system provides users with the necessary motivation to seek treatment and the threat of a citation and potential fine is lacking in some critical respect. Decriminalization may ultimately limit access to treatment as fewer offenders are pushed into court-ordered programs. Decriminalization advocates counter that the criminal justice system’s pathway to treatment is flawed, biased and ineffectual, and point out that “on average a huge percentage [approximately 70 to 80 percent in Multnomah county] of those convicted of drug possession in the state were rearrested within three years.” Regardless, there is shockingly little data to determine what programs work best and no agreed upon set of metrics or benchmarks to judge program efficacy, either in Oregon or nationally.
Oregon Capitol
Salem, 1938
The Verdict
Unfortunately, it’s likely too early to fairly assess whether Oregon’s remarkable drug policy transformation can be deemed a success. Part of this is because the transformation is still underway. Supporters of decriminalization point to Portugal as a reform model, which took more than two years to transition from a system centered around the criminal justice system to a healthcare model. Covid-19 is a another complication; Oregon’s detox clinics, recovery-focused nonprofits, and impatient facilities have been battered by the pandemic and related workforce shortages.
Nonetheless, Oregon’s bold efforts have seemingly inspired state level decriminalization efforts across the country as lawmakers in Maine, Massachusetts, Rhode Island, and Vermont have all proposed similar decriminalization bills this year. The takeaway seems to be that decriminalization is a wise policy so long as recovery services are widely available. As Reginald Richardson, director of Oregon’s Alcohol and Drug Policy Commission, put it, “the use of criminal justice becomes a necessary proxy when you don’t have effective behavioral health services.” Overall, this kind of major shift in policy is daunting and will always involve overcoming unforeseen challenges, although hopefully not always to the extent of a global pandemic. Still, the Nixon-era drug policies has largely been an abject failure, and states like Oregon ought to be commended for trying, however imperfectly, to improve their approach.
Alexander Gatter anticipates graduating from Boston University School of Law in May 2023.
Emergency Opportunity: Legislating Away Roe v. Wade During the Coronavirus Pandemic
The coronavirus pandemic has disrupted American life, challenging mental health, physical health and the economic infrastructure of the country. Though a pandemic inherently creates adversity, one struggle that we may not have anticipated to escalate so dramatically during this time is the fight for reproductive rights. Just before the pandemic, conservative legislators and pro-life groups took sweeping action under a president who supported such restrictions, and a newly conservative Supreme Court. Now, not only is the Court hearing cases that previously would have been quickly denied under Planned Parenthood v. Casey precedent, but also new legislation and tactical moves are rapidly escalating the rollback of reproductive rights. The pro-life movement has gained momentum during the pandemic, and the question remains whether the future will reverse, or further cement conservative views on abortion.
At the outset of the pandemic, many states banned “nonessential” medical procedures to prevent the spread of COVID-19 and preserve PPE. However, several states took the opportunity to classify abortion as a “nonessential” procedure, making the surgery inaccessible. At the same time, the FDA deregulated the requirements for in-person prescription of many drugs, even opioids, but continued to heavily regulate medication related to abortion.
Medication abortion consists of mifepristone and misoprostol, two drugs taken separately to induce an abortion. Prior to the pandemic, medication abortion was already distinguished from other types of medication. Mifepristone is the only drug, out of over 20,000 FDA-approved drugs, that requires in-person dispensation, but can be ingested at home without any medical personnel present. The persistence of FDA restrictions on medication abortion combined with the prohibition on abortion as a “nonessential procedure” in some states left many women with few options. In January of 2021, the Supreme Court deferred to the FDA’s decision and allowed the restrictions to remain in place.
While the FDA was in legal battles over the requirements for medication abortion, conservative states began launching and defending legislation that restricted the right to a surgical abortion. During the 2021 session the Texas Legislature enacted the Texas Heartbeat Act, which bans abortion at the first sign of fetal heartbeat, which can be as early as 6 weeks. As BU Law and School of Public Health Professor Nicole Huberfeld pointed out, many women do not know they are pregnant within 6 weeks, and a “heartbeat” may mean no more than detecting an electrical pulse.
The key feature that has made Act a standout among anti-abortion bills is the citizen suit provision. The Act allows,
“any person, other than an officer or employee of a state or local government entity in [the] state, may bring a civil action against any person who…performs or induces an abortion” or “aids or abets the performance or inducement of an abortion.”
Enforcement is exclusively through private civil actions, a self-protecting mechanism that has been thought provoking for both the courts and the public. The lack of government enforcement leads many people to believe that there was no one to sue in order to challenge the legislation through judicial review. While the legislators may have thought this workaround clever, the Court recently held in Whole Women's Health v. Jackson that abortion providers may challenge the law by suing licensing officials. Still, the limited opportunity for judicial review may leave future constitutional rights vulnerable to this same evasive structure employed by the Texas legislation.
Another nefarious aspect of the Heartbeat Act is that it allows a potentially expansive class of people to be sued, and incentivizes suits by promising a reward of no less than $10,000, should the case succeed. Further, “aid or abet” is so vague, there appears to be no limit as to who fits this category. An attending nurse could clearly get sued, but potentially so may be someone lending a car or providing therapy to someone who had an abortion. Because anyone could inform on them, and has strong financial incentive to do so, the support networks may be almost as limited as the options for obtaining an abortion in Texas.
Just before announcing its limited decision allowing judicial review of the Heartbeat Act, the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health Organization. Dobbs centered around pre-pandemic Mississippi anti-abortion legislation, known as the “Gestational Age Act.” This Act directly confronts the holding of Planned Parenthood v. Casey by banning abortion after 15 weeks. It lacks the workaround that Texas employed but may nevertheless garner enough support from the Supreme Court to overturn the precedent from the Roe v. Wade line of cases. While Justice Roberts seemed inclined to uphold Roe but push back the line of imposing an undue burden to 15 weeks, other justices see the challenge as a call for an all-or nothing reversal of Roe. Overturning Roe would mean a complete change in the law surrounding abortion not just because of overturning common law precedent, but also because many states have drafted trigger laws, that specify that if Roe is overturned, abortion is automatically illegal in the state.
While the pandemic has allowed for an onslaught of attacks against the right to an abortion, surgical abortion is not the only option. Fewer women are getting abortions today than ever before, in part because contraception is more accessible. Additionally, the FDA has reversed its previous stance and permanently removed the in-person requirements for abortion medication. Many states have already written state-specific legislation that prohibits what the FDA is allowing, but the mail is not easily policed. Should the court uphold Texas Heartbeat Act and the Gestational Age Act on judicial review, medication abortion may become the new focus of legislation on both sides of the debate. Until then, the nation is holding its breath to see if these Acts can take down one of the most highly contested common law precedents—Roe v. Wade.
Julia Novick anticipates graduating from Boston University School of Law in May 2023.
Time To Bring Back Happy Hour To Massachusetts?
This session the Massachusetts Legislature considered “An Act restoring happy hour to the commonwealth" SB.169 at the request of a group of Boston College Law School students. The bill would allow restaurants and bars to discount alcoholic beverages during specified times if drink prices are not changed during the happy hour; the happy hour does not take place after 10 pm; and notice of the happy hour is posted on the premises or website at least three days in advance.
Massachusetts banned happy hour in 1984 as part of a national effort to combat drunk driving. Earlier that year President Reagan signed the National Minimum Drinking Age Act of 1984 (23 U.S.C. § 158), which cut federal highway funds to states with drinking ages under 21. In 1985 there were 18,125 alcohol impaired crash fatalities, representing 41% of total traffic deaths in the country. At the behest of groups such as Mothers Against Drunk Driving, Massachusetts joined several other states to restrict happy hours. Today, Massachusetts is one of eight U.S. states that still ban happy hours along with Alaska, Indiana, North Carolina, Oklahoma, Rhode Island, Utah, and Vermont.
The 38-year effort against drunk driving has had a significant effect: by 2019 there were 10,142 drunk driving fatalities representing 28% of total traffic deaths. Today, AAA ranks Massachusetts first among all states for having the least severe drunk driving problem. However, it is unclear that happy hour restrictions contributed to this downward trend. For example, in 2015 Illinois legalized happy hours after a 26 year ban. According to Department of Transportation data, during 2014, the last year that happy hour was outlawed in Illinois, there were 353 alcohol-related traffic deaths—38% of all traffic fatalities. In 2019 there were 368 alcohol-related traffic deaths—36% of traffic fatalities. It appears doing away with the happy hour ban had little to no effect on alcohol impaired traffic deaths in the state. Other drunk driving measures such as the 21 year-old minimum drinking age, strict enforcement of drunk driving laws, and changing youth attitudes and behaviors surrounding drunk driving have played the largest role in the reduction in traffic deaths nationally. Still, a 2014 study found that college students greatly increased alcohol consumption during promotions and happy hours that decreased overall prices.
An additional factor is that driving options have changed greatly since 1984. Today, ride share companies such as Uber and Lyft are now a popular and convenient way to get around after a night on the town. Since ride shares are fairly inexpensive during off-peak hours, it is more likely that people who had too much to drink would call an Uber rather than driving after happy hour ends. Additionally, parking in Boston is tedious and expensive at best. Finding parking in Boston reasonably close to a bar or restaurant—or reasonably priced—takes near herculean effort. Ride shares are often a more convenient and better economic option.
The bill's findings and purposes section lists both the law’s ineffectiveness and economic factors for lifting the ban. The bill claims restoring happy hour “will support local businesses, shift patronage of bars and restaurants toward low-density hours, and benefit the public morale.”
Indeed, offering happy hour specials could help restaurants and bars boost sales during off-peak hours. In the time of Covid-19, these discounts and specials could mitigate the losses suffered during the pandemic. Joshua Lewin, a co-owner of a restaurant in Somerville and Boston argued that in the time of Covid happy hours bring in patrons during slow times of the day. Happy hours spread out the times in which people go to the restaurants as allow social distancing measures.
The proposal is also popular; a recent MassINC poll found 70% of people approved lifting the happy hour ban with only 9% strongly opposed. In addition, Mothers Against Drunk Driving (“MADD”), one of the strongest proponents for prohibiting happy hours, does not currently have an official stance on lifting the ban due to the advent of ride shares as a safeguards against drunk driving.
The Massachusetts State House
Boston, 1787
Allowing happy hours, however, faces significant opposition. Massachusetts Governor Charlie Baker is skeptical about the bill stating, “That law did not come about by accident. It came about because there was a sustained series of tragedies that involved both young and older people, in some terrible highway incidents, all of which track back to people who’d been over-served as a result of happy hours in a variety of places... I’d be hard-pressed to support changing it.”
While drunk driving and binge drinking are still a concern, drunk driving incidents have been on the decline over the last twenty years. Evidence suggests the Massachusetts prohibition of happy hour is outdated and ineffective for decreasing drunk driving. The Commonwealth should refocus its efforts to curb drunk driving through increased education and outreach programs along with tighter enforcement across the Commonwealth. Further, the Legislature should support legislation that will aid local business in any way that is practical; happy hours would give bars and restaurants a boost while helping to manage the flow of customers.
At any rate, the bill seems to be done for the session. The committee on Consumer Protection and Professional Licensure held a hearing on August 30, 2021, and in January 2022 sent the bill to a study order. Perhaps bars and restaurants will get some relief next year.
Ryan Platt anticipates graduating from Boston University School of Law in May 2023.
Dane White anticipates graduating from Boston University School of Law in May 2023.
Time To Bring Back Happy Hour To Massachusetts?
This session the Massachusetts Legislature considered “An Act restoring happy hour to the commonwealth" SB.169 at the request of a group of Boston College Law School students. The bill would allow restaurants and bars to discount alcoholic beverages during specified times if drink prices are not changed during the happy hour; the happy hour does not take place after 10 pm; and notice of the happy hour is posted on the premises or website at least three days in advance.
Massachusetts banned happy hour in 1984 as part of a national effort to combat drunk driving. Earlier that year President Reagan signed the National Minimum Drinking Age Act of 1984 (23 U.S.C. § 158), which cut federal highway funds to states with drinking ages under 21. In 1985 there were 18,125 alcohol impaired crash fatalities, representing 41% of total traffic deaths in the country. At the behest of groups such as Mothers Against Drunk Driving, Massachusetts joined several other states to restrict happy hours. Today, Massachusetts is one of eight U.S. states that still ban happy hours along with Alaska, Indiana, North Carolina, Oklahoma, Rhode Island, Utah, and Vermont.
The 38-year effort against drunk driving has had a significant effect: by 2019 there were 10,142 drunk driving fatalities representing 28% of total traffic deaths. Today, AAA ranks Massachusetts first among all states for having the least severe drunk driving problem. However, it is unclear that happy hour restrictions contributed to this downward trend. For example, in 2015 Illinois legalized happy hours after a 26 year ban. According to Department of Transportation data, during 2014, the last year that happy hour was outlawed in Illinois, there were 353 alcohol-related traffic deaths—38% of all traffic fatalities. In 2019 there were 368 alcohol-related traffic deaths—36% of traffic fatalities. It appears doing away with the happy hour ban had little to no effect on alcohol impaired traffic deaths in the state. Other drunk driving measures such as the 21 year-old minimum drinking age, strict enforcement of drunk driving laws, and changing youth attitudes and behaviors surrounding drunk driving have played the largest role in the reduction in traffic deaths nationally. Still, a 2014 study found that college students greatly increased alcohol consumption during promotions and happy hours that decreased overall prices.
An additional factor is that driving options have changed greatly since 1984. Today, ride share companies such as Uber and Lyft are now a popular and convenient way to get around after a night on the town. Since ride shares are fairly inexpensive during off-peak hours, it is more likely that people who had too much to drink would call an Uber rather than driving after happy hour ends. Additionally, parking in Boston is tedious and expensive at best. Finding parking in Boston reasonably close to a bar or restaurant—or reasonably priced—takes near herculean effort. Ride shares are often a more convenient and better economic option.
The bill's findings and purposes section lists both the law’s ineffectiveness and economic factors for lifting the ban. The bill claims restoring happy hour “will support local businesses, shift patronage of bars and restaurants toward low-density hours, and benefit the public morale.”
Indeed, offering happy hour specials could help restaurants and bars boost sales during off-peak hours. In the time of Covid-19, these discounts and specials could mitigate the losses suffered during the pandemic. Joshua Lewin, a co-owner of a restaurant in Somerville and Boston argued that in the time of Covid happy hours bring in patrons during slow times of the day. Happy hours spread out the times in which people go to the restaurants as allow social distancing measures.
The proposal is also popular; a recent MassINC poll found 70% of people approved lifting the happy hour ban with only 9% strongly opposed. In addition, Mothers Against Drunk Driving (“MADD”), one of the strongest proponents for prohibiting happy hours, does not currently have an official stance on lifting the ban due to the advent of ride shares as a safeguards against drunk driving.
The Massachusetts State House
Boston, 1787
Allowing happy hours, however, faces significant opposition. Massachusetts Governor Charlie Baker is skeptical about the bill stating, “That law did not come about by accident. It came about because there was a sustained series of tragedies that involved both young and older people, in some terrible highway incidents, all of which track back to people who’d been over-served as a result of happy hours in a variety of places... I’d be hard-pressed to support changing it.”
While drunk driving and binge drinking are still a concern, drunk driving incidents have been on the decline over the last twenty years. Evidence suggests the Massachusetts prohibition of happy hour is outdated and ineffective for decreasing drunk driving. The Commonwealth should refocus its efforts to curb drunk driving through increased education and outreach programs along with tighter enforcement across the Commonwealth. Further, the Legislature should support legislation that will aid local business in any way that is practical; happy hours would give bars and restaurants a boost while helping to manage the flow of customers.
At any rate, the bill seems to be done for the session. The committee on Consumer Protection and Professional Licensure held a hearing on August 30, 2021, and in January 2022 sent the bill to a study order. Perhaps bars and restaurants will get some relief next year.
Dane White anticipates graduating from Boston University School of Law in May 2023.
Ryan Platt anticipates graduating from Boston University School of Law in May 2023.
