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The best thing about the Seattle Times hiring Erik Smith, is that finally there’s somebody on the paper’s editorial board with the courage to give a voice to Seattle’s downtrodden business community:

A rare voice on minimum wage

Howard Behar, former president of Starbucks, explains why he supports a referendum campaign that would send Seattle’s minimum-wage ordinance to the ballot.

That’s Smith’s column and kicker. Really. Because there is nothing rarer in American politics than the voice of a rich white guy.

Seattle’s business community didn’t put up much of a fight when the City Council passed its highest-in-the-country $15 minimum-wage ordinance this month — at least not the united opposition that might be expected in a city of lesser size.

Um, there’s a difference between not putting up much of a fight, and losing. And they didn’t completely lose, either. No, Seattle’s business community didn’t win a permanent tip credit or “total compensation”, or the lower $12 minimum wage for which many business leaders belatedly fought. But they did get what amounts to an eleven-year phase-in before all Seattle workers will earn the inflation-adjusted equivalent of about $14.50 an hour in cash take-home pay in the year 2025.

But at long last, Howard Behar has had it with that talk of “sticking it to the man.”

“First of all, it’s not just the man anymore,” he says. “It’s the man and the woman. But is that what we think this is about? We’re trying to get somebody?”

Well then, he should stop watching re-runs of The Mod Squad, because I’m not sure I’ve heard anybody actually use that phrase since the early 1970s. I mean, I love “the man” as an apt metaphor for the way society actual works, but then, I’m old. I’m over fifty. “Sticking it to the man” is about as much a part of modern American parlance as “groovy” or “the cat’s pajamas.”

And no, $15 was not about “trying to get somebody.” It was about trying to get somebody a living wage. The rhetorical focus was always on the plight of the working poor. That’s why fast food workers became the symbol of the movement.

If anyone is the man, it is Behar. He is the former president of Starbucks, the Seattle-based coffeehouse chain with more than 20,000 outlets worldwide. Though Starbucks is one of the world’s most recognizable brand names, it was not vilified during the campaign by union organizers and political activists in the same way as favorite corporate targets McDonald’s and Wal-Mart.

So wait. Behar is “the man”…? And nobody talked about “sticking it” to him…? Now I’m just confused.

The company prides itself on the fact that it pays a bit more than the current minimum wage, provides health insurance for its employees and recently implemented a college tuition benefit.

Starbucks baristas average less than $9 an hour nationwide, only 42 percent of employees are actually covered by Starbucks’ health insurance (less than Walmart!), and it turns out the company’s much ballyhooed tuition benefit program isn’t all that much of a benefit. Starbucks is far from the worst company in the world to work for, but it isn’t a charity.

Yet, with a corporate headquarters about a mile from Seattle City Hall, the company is affected by the raised minimum wage as clearly as the smallest espresso hut along Highway 99.

And your point is… what? Starbucks should get a volume discount?

In criticizing the Seattle plan, Behar is not speaking for the chain he helped build from 28 stores before his retirement as president in 2007 — his only direct financial interest in Starbucks is the one share of stock he keeps framed on the wall.

No, he’s speaking for his class. I’m no Marxist, but this is clearly a class struggle. And as multi-billionaire investor Warren Buffett famously said: “There’s class warfare, all right, but it’s my class, the rich class, that’s making war, and we’re winning.”

A lifetime spent in business tells him the Seattle plan will hurt the low-wage earners it aims to help by raising the cost of living, and driving light manufacturing and distribution jobs beyond the city limits.

Ah, he’s just looking out for the little people. God bless him.

But while I don’t dismiss Behar’s business acumen, there just isn’t any data to support the claim that minimum wage hikes—even massive ones—have a substantial impact on employment.

That is why he is a major contributor to Forward Seattle, the organization gathering signatures to place a referendum on the November ballot to undo the ordinance. Behar agrees the wage should rise, but says the city ought to phase it in over a much longer period of time, perhaps at twice the rate of inflation until $15 is reached, for businesses of all sizes, uniformly.

So let’s do the math. Assuming our current annual inflation rate of about 1.75 percent (and that may be on the high side), it would take 14 years—not until the year 2028—before workers finally earned $15 an hour. But by then, $15 would only be worth about $11.78 in 2014 dollars. So in real dollars, Behar is proposing a $2.46 an hour raise phased in over a decade and a half.

Behar’s voice is important because so few in Seattle’s big-business circles have been willing to say a word. In smaller cities, small business dominates the Rotary clubs and the chambers. The silence from many Seattle-based business organizations reflects the fact that this is a regional headquarters city for so many large corporations. Some shrug — they pay more than minimum wage — and by taking a stand in Seattle they could bring picket lines elsewhere in the country.

You’re kidding, right? Twelve of the 21 non-elected members of Mayor Ed Murray’s Income Inequality Committee represented business, including the Seattle Chamber of Commerce, the Seattle Hotel Association, Nucor Steel, and Space Needle owner/hotelier Howard Wright. Alaska Airlines and the car rental, lodging, and restaurant industry spent a record $227 per vote in their failed attempt to defeat SeaTac’s $15 minimum wage initiative at the polls! The International Franchise Association is spending $1,000 an hour to file ridiculous lawsuits in an effort to bully other cities from moving forward. You call that silence?

“Business leaders are scared to death,” Behar says. “Because you know in today’s world what happens when they speak up? They are accused of being greedy, they are accused of not caring about people.”

Oh, boo fucking hoo! Workers are scared to death of being fired for attempting to unionize, but Behar is scared that some people might say he’s mean? Talk about asymmetry.

Behar calls the Seattle plan unjust and immoral — some reasons familiar, others not.

“Unjust and immoral?” You mean like paying somebody a poverty wage? You mean like the service industry practice of denying workers more than 29.5 hours a week so that they don’t qualify for benefits? You mean like the wage and tip theft that is rampant in the industry?

The Seattle plan will require big companies, chains and franchisees to raise wages faster than mom-and-pop operations, the idea being that big corporations can afford it. Franchisees are, of course, small-business owners themselves, a fact the Seattle ordinance ignores. And Behar notes that in a chain, each store is considered a stand-alone business and each is expected to turn a profit.

So, either Seattle chain outlets will raise prices in Seattle, just like mom-and-pop stores will — or, perhaps worse, they might allow that store in Cincinnati to subsidize the one in Seattle, and keep prices low until shakier independent merchants close their doors.

My god, when will America wake up to the holocaust that is befalling our nation’s persecuted big businesses? If only they had unlimited financial resources to buy high priced lobbyists, expensive advertising, and credulous editorial boards to defend their interests.

And, while the proposition was sold with the idea of reducing income inequality, the shock on the local economy will mean higher prices for things bought locally — buying power of a higher minimum wage is reduced.

So first we’re told we’re supposed to heed Behar’s warnings due to his “lifetime spent in business,” and then he throws this incredible piece of economic bullshit at us? Does he think we’re stupid?

If labor was the only cost of doing business, this argument might largely hold true. But of course, it’s not. Labor is about a third of the cost of a Big Mac. So if the entire cost of raising the minimum wage were passed on to McDonald’s consumers (and it won’t be), you’re looking at about a 19 percent price hike over the same period of time McDonald’s workers see their wages rise 56 percent.

Low-wage workers clearly come out ahead. And that’s just with burgers. The inflationary pressure won’t be zero, but big monthly expenses like electricity, utilities, cable, phone, and of course housing will see little direct impact from a hike in the minimum wage.

Behar says a proposition with such a dramatic effect on the city ought to bypass a council where special-interest groups hold sway. “The idea this got a fair hearing is garbage. Labor was going out the back door and business was sitting in the lobby.”

Again… you’re fucking kidding me, right? Is he really making the argument that corporate money doesn’t have enough influence in politics? That if Behar were still president of Starbucks, the mayor and every council member save Socialist Kshama Sawant wouldn’t take his phone call in New York minute?

The vilification of big business to promote an unworkable economic ideal hits him in the gut: “If we are a just society, we treat everybody the same.”

First of all, perhaps some people vilify big business leaders as “greedy” and “not caring about people” because capital-as-victim narratives like this make them come off as greedy and not caring about people? Just a thought.

Second, if Behar is really advocating for a “just society,” one in which we “treat everybody the same,” perhaps he should start with reforming Washington State’s most regressive tax system in nation? This is a system in which the bottom 20 percent of earners (you know, Starbucks baristas) pay 16.9 percent of their income in state and local taxes, whereas the wealthiest 1 percent (you know, Howard Behar) pay only 2.8 percent.

Does this sound like a just society in which we treat everybody the same? Of course not. And yet Behar has chosen to use his voice to champion the moneyed interests that benefit most from the status quo.

In a city where no one has spoken for big business on the issue, Behar does seem to be the man.

No one except all the big businesses I mentioned, and of course, the Seattle Times editorial board. Relentlessly. But nice attempt at an emotional bookend, Erik.

– Will the Supreme Court Ignore the Evidence? Facts vs. Beliefs in the Hobby Lobby Case

– The Spokesman-Review should probably do a better job of getting pictures.

– Let’s Build The Ballard Spur!

– I honestly couldn’t have told you who was the Seattle School District Superintendent, but now he might be leaving.

– My Real Change vendor keeps asking me to go to his church, but this is neat too.

Remember how opponents warned that a $15 minimum wage would surely cost the city thousands of jobs, hurting the exact same low-wage workers the ordinance was intended to help? Well, in Seattle’s booming hospitality industry, not so much:

The former Red Lion Hotel in downtown Seattle sold Thursday for $130.7 million, or nearly $410,000 a room, the highest price ever paid in the metro area, according to hotel experts.

But the record price for the 319-room hotel, now known as Motif Seattle, could quickly be surpassed by the pending sale of the 120-room Hotel 1000: Two groups are buying it for $63 million or about $525,000 a room, according to a report this week in The Wall Street Journal, which didn’t identify its sources.

“It is the highest price paid (per key) ever for a hotel in Washington state,” said Chris Burdett, senior vice president of CBRE Hotels in Seattle, which was not involved in the transaction.

The record-price deals for downtown Seattle hotels are the latest good news for a surging hotel market that’s kicked off a wave of new construction. Downtown Seattle has roughly 12,000 hotel rooms; the construction of R.C. Hedreen’s mega-convention hotel and smaller hotels could add another 3,000 rooms to the inventory.

Wait. I thought the $15 minimum wage was supposed to destroy capitalism as we know it. And yet in the immediate wake of its passage, investors continue to sink hundreds of millions of dollars into an industry that is one of the city’s largest employers of low-wage workers. I’m so confused!

And it’s not just here in Seattle. Just weeks after SeaTac voters passed their $15 minimum wage, Cedarbrook Lodge, one of the initiative’s most vocal opponents, announced a $16 million 67-room expansion. It’s like the industry’s mouth is saying one thing while its money is saying something entirely else. Weird.

I can only conclude one of two things. Either paying hotel housekeepers and other low-wage workers $15 an hour won’t squeeze all the profits out of Seattle’s labor-intensive hotel industry, or all the smart capitalists investing hundreds of millions of dollars into our soon-to-be-living-wage hotel industry are in fact incredibly stupid.

Finally, I can move back to Philadelphia!

PHL Local Gaming — one of the five contenders for that ever elusive casino license in Philadelphia — has announced a potential new feature for its LoSo Entertainment Center: a 615-foot-tall Skyspire with rooftop restaurant and observation deck, both of which would be reached by gondola. The tower would be designed to look much like Seattle’s Space Needle, though it would be 10 feet taller (take that, Seattle!).

Except for the casino part, it sounds great.* Though personally, rather than the Skyspire, I would opt for the Polercoaster, which instead of those stupid gondolas would wrap the tower with a 615-foot vertical roller coaster!

http://youtu.be/8oFdY0rpv2I

* Note: Not really.

In a press release about the budget forecast there’s, a paragraph about McCleary where Representative Terry Nealey says:

“The demands by the state Supreme Court for the Legislature to meet educational funding requirements under the McCleary decision will likely lead for new calls during the 2015 session to raise taxes. That would be devastating to our state’s economy. The correct course of action is to fund education first within the budget and let the economy heal by resisting job-killing tax increases. If we stay the course, Washington’s citizens will have more job opportunities, our state will reap the benefits of higher revenue, and we will be able to meet our constitutional requirements as it relates to education.”

This is a broader press release about how the revenue forecast increased $157 million for the biennium. But we’re billions behind. As long as 2 billion or so is more than 157 million, we’re not just going to be able to grow out of our problems.

But I will meet Rep Nealy part of the way: Yes raising taxes can have a deleterious effect on the economy. That’s true. But what the GOP never acknowledges is that so does cutting government services. So I would like to hear how the state could cut the difference between what grew or what the state can expect to grow and what’s needed to fulfill the McCleary obligations. Because suddenly making massive cuts to social services will also affect the economy in a negative way.

Hell, even the largely mythical wringing efficiencies from the government or cuts to wages and pensions would hurt the economy as it would mean less money being pumped into the economy. Government spending drives the economy in its way. Obviously, when we have a balanced budget, those efficiencies are generally balanced out by the taxes that have to be paid to fund them. But that’s the point: we’re going to have to look at spending and at taxes if we want to fix McCleary without doing too much damage to the economy. And since we’ve been mostly cutting in the past years, it may be time for more taxes.

– Where the Growth is Happening

– For a town that is really proud of being progressive and pro-lady and pro-gay and pro-brown-people and pro-equality, we have still got some truly rotten, stinking, embarrassing, hateful slop festering just barely under the surface. And it’s down to all of us to talk about it and act on it.

– I’m just going to say it: Boo Canada.

– This WaPo piece on a Heritage Foundation panel hating Muslims has been going around, but I’d be remiss if I didn’t point to it.

– Summer Meltdown

– It almost sounds crazy to write this, but 45 years ago today, the Seattle City Council tried to destroy the Pike Place Market.

No doubt Starbucks’ new tuition reimbursement program is better than a kick in the teeth, and I suppose the company deserves some credit for doing more than many of its competitors. But forgive me for not sharing in the credulous headlines. First of all, the program isn’t nearly as generous as first reported. Second, if limiting low-income students’ options to taking online courses from a single university is the “new model” for higher education that Arizona State University president Michael M. Crow envisions, I seriously doubt it will do much to address our nation’s growing opportunity gap.

It’s hard to suss out the exact details of the program from Starbucks’ publicly available documents (pdf), but it appears that the cost to the company will be far less than the $30,000 per employee benefit some headlines have touted. According to the Chronicle of Higher Education, Starbucks expects to spend an average of $3,250 per student per year in upfront scholarships (presumably per academic year rather than calendar year, as these are per credit grants), plus reimbursements to juniors and seniors of “however much it needs to cover any other unmet tuition costs.” Tuition reimbursements will only be paid to employees after completing 21-credit blocks—the company says that the “vast majority” of employees will receive less than $5,250 in tuition benefits in any given year.

But at between $480 to $543 per undergraduate credit, ASU’s online classes don’t come cheap. The 120 credits necessary to get a four-year Bachelors degree, comes to about $15,000 a year for a full-time online student—a couple thousand dollars a year more than resident tuition and fees at the University of Washington. So it’s not a bargain. Starbucks and ASU expect that most students will qualify for federal grants and other financial aid—hence the lower than sticker price cost to Starbucks for juniors and seniors—but even upperclassmen expecting full reimbursement will likely have to take out student loans to cover upfront costs.

If you’re a Starbucks employee just a semester or three shy of a college diploma, this program could prove a boon. But for freshmen and sophomores, not so much. Community college credits are cheaper, even accounting for the Starbucks subsidy, plus come with the added benefit of a live classroom and campus experience. Nothing against distance learning as a supplement to a traditional college education, but it hardly seems worth paying a premium for online courses.

I doubt most Starbucks executives would choose an online-only college education for their own children. So why should that be good enough for their employees?

So yeah. Starbucks’ “College Achievement Plan” is better than a kick in the teeth. It’s not nothing. And other highly profitable companies should be ashamed for not making at least as much effort to better the lives their workers. But it does relatively little to address the core problem facing low-income youth today: Low wages and skyrocketing tuition costs.

To put this into perspective, Starbucks’ estimated average cost of $3,250 in tuition subsidies per student per academic year would be the equivalent of paying a full-time student an additional $3.12 an hour on a part-time 20-hour week. But for a full-time barista earning only 3 credits per term (ASU tells students to expect to put in 18 hours a week in work per 3-credit class), Starbucks’ tuition benefit drops to only $0.78 per hour. The benefit for most Starbucks workers who take part in the program will be somewhere in between.

By comparison, Starbucks baristas average less than $9 an hour in pay nationally, a little higher here in Washington State. Thus a $15 minimum wage would do far more to make college affordable than Starbucks’ complicated tuition benefit program, while giving workers the choice of which college or university to attend, and more than just the 40 areas of study that ASU offers online.

The flip-side to this equation is that programs like this wouldn’t be necessary at all if we had not abdicated our responsibility to adequately fund our state college and university systems. “If it’s all about state legislatures appropriating more money, guess again,” says Crow cynically, but that’s awfully self-serving coming from the president of a university that just signed an exclusive deal with Starbucks to provide online degrees to potentially tens of thousands of workers.

Many of today’s lawmakers worked their way through college at a time when one could. Higher pay and lower tuition is the key to making college broadly affordable again, not corporate altruism.

The only thing keeping us from making a public university degree affordable again is the will to tax ourselves to pay for it. The revenue isn’t there because taxes as a percentage of income are at an all time low. We can afford to pay to properly educate our young the way we did in the 1950s and 1960s and 1970s if we once again choose to adequately tax the wealth and incomes of billionaires like Starbucks CEO Howard Schultz. Skyrocketing tuition is the result of a policy decision, not a natural disaster. If we as a society choose to make higher education affordable again, we can.

But we don’t.

And that is why, far from excited by Starbucks’ announcement, I came away rather depressed. For however altruistic Starbucks’ intentions may be, and however many workers might ultimately take advantage of the program to complete their degrees, this is a model that ultimately takes away options from America’s youth, while easing pressure on the current generation of decision makers to give future generations the same educational opportunities that we enjoyed.

I am not an attorney, so when I initially characterized the International Franchise Association’s $15 lawsuit as “hilarious,” “laughable,” and “frivolous,” I suppose my lack of a JD was permission enough to shrug off my analysis. But I’ve yet to hear a real lawyer disagree.

Labor and employment attorney Dmitri Iglitzin described at least one IFA claim as “crazy talk.” And writing on his own blog, University of Washington School of Law lecturer David Ziff responded to various IFA arguments with offhand dismissals like “frivolous,” “non sequitur,” and “Wowsa. Seriously.”

But one of the more interesting analyses—and a somewhat unsettling one—comes from attorney Ian Millhiser, the Senior Constitutional Policy Analyst at the Center for American Progress Action Fund. Writing at ThinkProgress, Millhiser originally titled his post “The Completely Bonkers Lawsuit Seeking To Kill Seattle’s Minimum Wage & Repeal The Twentieth Century,” before revising it to something a bit more lawyerly. So he agrees with me that that arguments are facially bonkers. Read the whole thing.

But it’s that part about repealing the Twentieth Century that really caught my attention.

So the Seattle lawsuit relies on arguments that are either silly, dangerous or both. It calls for a wholesale transfer of power away from the American people. And it would repeat some of the worst mistakes of American governments’ past. Indeed, many of the arguments raised in the plaintiffs’ complaint are so absurd that they raise an important question — why should anyone care that this lawsuit was filed? People file silly lawsuits all the time. One guy once filed a federal suit against “Satan and his staff,” claiming that “Satan has placed deliberate obstacles in his path and has caused [his] downfall.” But there was never much risk that a federal judge would issue an injunction against the Devil.

The answer to this question is that the Seattle lawsuit does have one thing going for it that the guy who sued Satan did not. It is being litigated by Paul Clement, the conservative superlawyer that we have rather archly referred to as the “Solicitor General of the Republican Party.” Clement is the go-to lawyer for Republican interest groups seeking to implement Republican policies through the judiciary, and he has a knack for making ridiculous legal arguments sound plausible to conservative judges. Recall that Clement nearly convinced the Supreme Court to strike down the entire Affordable Care Act, largely relying on a legal theory that one very conservative judge mocked for having no basis “in either the text of the Constitution or Supreme Court precedent.”

As Millhiser points out, lawyers are usually reluctant to sign their names on to such outlandish legal arguments. But…

Clement, however, is such a successful attorney in large part because he has his finger on the pulse of the conservative legal thinkers who dominate the Supreme Court of the United States. He is a better judge of how far he can push the justices than nearly anyone else in the country. And, if he thinks that the kind of arguments that he makes in his brief can be made with a straight face, then that is saying something quite significant.

The conventional wisdom, based not just on speculation but on the justices’ own statements, is that the Roberts Court is quite conservative but it certainly isn’t prepared to revive the judicial overreach that pervaded the Lochner Era. One of the best lawyers in the country, however, appears to have concluded that this conventional wisdom is wrong. If Clement turns out to be correct, that should frighten anyone who works for a living.

Understand that for the IFA’s arguments to stand, the court wouldn’t just have to find the franchise provisions unconstitutional, but minimum wage laws in general. Everywhere. Local, state, and federal. For that was the status quo between 1905 and 1937, the era in which Lochner held sway.

So yeah, based on the past 75 years of jurisprudence, the IFA lawsuit is indeed hilarious, laughable, and bonkers. But that’s assuming the ultra-conservative Roberts Court isn’t radical enough to toss out our nation’s entire regulatory structure.

What the headline says:

The Washington Supreme Court on Thursday ordered lawmakers to explain why they haven’t followed its orders to fix the way Washington pays for public education.

The court has ordered the state to appear before it on Sept. 3 and show the court how it has followed its orders in the 2012 McCleary decision or face contempt.

Of course, the legislature is in contempt of the court’s order on McCleary, but the court doesn’t really have any good options to enforce it. Of the remedies Chief Justice Barbara Madsen lists in her rather terse order summoning “the State” to appear before the court at a September 3 “show cause hearing,” only the first is appealing, none would be effective, and several would realize the Republican wet dream of using McCleary as an opportunity to starve the rest of state government.

1. Imposing monetary or other contempt sanctions;
2. Prohibiting expenditures on certain other matters until the Court’s constitutional ruling is complied with;
3. Ordering the legislature to pass legislation to fund specific amounts or remedies;
4. Ordering the sale of State property to fund constitutional compliance;
5. Invalidating education funding cuts to the budget;
6. Prohibiting any funding of an unconstitutional education system; and
7. Any other appropriate relief.

I’m all for imposing contempt sanctions. Throw the house and senate leadership in jail, if you can. That at least would be a spectacle on a scale worthy of the impending crisis. But simply forcing the state to spend money it doesn’t have would only pull billions from social services, higher education, and other critical programs, while selling state property in order to fund current expenses is nothing less than one generation ripping off all those generations that precede or succeed it.

No, the only solution is more revenue. And if the court can’t effectively order the legislature to raise taxes (or eliminate tax exemptions), then there’s no solving this crisis.

A few months ago I asked if state Democrats were prepared for the impending McCleary disaster? Of course, it was a rhetorical question. The answer is clearly “No.”

The International Franchise Association didn’t just file one of the most hilarious lawsuits ever in their futile quest to overturn Seattle’s new $15 minimum wage ordinance, they also created a pathetically lazy video to support it! As the folks at Working Washington quickly discovered, every single person shown is taken directly from the popular stock footage library, Pond5:

1. Young asian woman smiling face
2. Young hispanic man smiling at camera
3. Portrait Of Young Happy Handsome Man In Glasses
4. Friendly Female Barista In A Coffee Shop Serving Customers
5. Young Pretty Woman Working As Florist In Shop And Smiling (Note: they color-adjusted the apron so it’s Starbucks green!)
6. Attractive Female Business Owner On The Phone Behind The Counter Of Her Shop
7. African American Woman Close Looks Up Smiles Into Camera
8. Man Looking At Seattle Skyline

That’s pretty much a laundry list of politically correct inclusiveness picked straight from the Pond5 catalog. Not a single actual real business owner or worker in the bunch.

So how much did the IFA spend to hack together a video like this? My guess is a lot. One of the signers on yesterday’s absurdly crappy complaint was former Bush Administration Solicitor General Paul D. Clement, who reportedly charges more than $1,000 an hour for his service. So no doubt the IFA paid top dollar for this crappy video too.

Which raises the question: If America’s franchises can afford to pay $1,000 an hour for crap like this, why can’t they afford to pay $15 an hour to their own employees?

– With how often I talk about how gross coal trains are, we can also remember that oil trains are also gross, and maybe we should have better disclosure.

– What the everloving fuck, Pat Robertson?

– I’m not as big on calling out a history of not voting by candidates. Policy ought to trump that. If the candidates are similar, it’s maybe a tiebreaker. But a campaign making excuses in a way that makes it seem they don’t understand they’re in a vote by mail state is maybe worse.

– Eric Cantor got what he deserved: A political fraud’s stunning demise

– Oh hey, the Backbone Campaign are having a fundraiser. It looks like fun.

The Washington DC based International Franchise Association has filed its promised lawsuit challenging Seattle’s $15 minimum wage ordinance, and while I’m not a lawyer, I have to say that in my expert opinion, much of the 34-page complaint (pdf) is downright laughable.

For example, Count IV, which preposterously alleges that the ordinance is preempted by the Lanham Act, the primary federal statute protecting trademarks, because it interferes with a trademark holder’s “right to control the quality of the goods or the services sold under its trademark.” Or Count I, which clearly contradicts the plaintiffs’ primary claim—that franchises should be treated like any other small, locally owned business—by arguing that to do otherwise would discriminate against interstate commerce. Or perhaps most hilariously, Count VIII, which alleges that the ordinance violates the First Amendment, because its higher labor costs would reduce the money available to spend on the franchisees’ constitutionally protected commercial speech:

[T]he Ordinance will curtail franchisee commercial speech in at least three important respects. First, by increasing the labor costs of franchisees, the Ordinance will reduce the ability of franchisees to dedicate funding to the promotion of their businesses and brands. Second, the increased labor costs the Ordinance mandates may cause some franchisees to shut their doors, reducing the amount of relevant commercial speech they engage in to zero. Third, and relatedly, the Ordinance will likely cause potential franchisees to forgo purchasing a franchise because of the associated higher operation costs, again eliminating all associated speech.

“That’s crazy talk,” says attorney Dmitri Iglitzin, a labor and employment lawyer who represents groups defending SeaTac’s $15 minimum wage ordinance. Iglitzin says that the First Amendment claim actually surprised him. Indeed, it’s so blatantly frivolous, he suggests, that it could even end up pissing off the court. “I don’t just throw everything I can imagine into a claim and hope that it sticks,” says Iglitzin about his own legal strategy.

Iglitzin doesn’t think much of the complaint’s other seven counts either, which include vague appeals to the Commerce Clause, the Equal Protection Clause, and the state constitutional prohibition on granting “rights and immunities” to specific corporations. Iglitzin characterizes the remarkably nonspecific alleged violation of Washington State corporation law as “equally nonsensical.” When asked if there was anything in the complaint that gave him pause,  Iglitzin said: “There’s really not.”

Iglitzin did say he would take a deeper look at Count V, which claims that the ordinance’s separate schedules for employees receiving health benefits is preempted by the federal Employee Retirement Income Security Act (ERISA). He doesn’t believe the claim has merit, but “ERISA is a complicated area of the law,” he concedes.

“If I saw a lawsuit that was just ERISA, I might have thought that maybe they saw something that I didn’t see,” says Iglitzin. But overall, “it seems like a pretty frivolous lawsuit to me.”

I’m not an attorney, but I’ve seen enough of these things to fashion an informed opinion. And I have to agree. It’s frivolous. I mean, how can anyone take seriously a legal document that authoritatively cites a Seattle Times editorial?

In fact, much of the complaint reads more like it was drafted by PR consultants than lawyers, with nearly a quarter of its pages devoted to detailing the alleged woes of the named plaintiffs, and how the Seattle ordinance unfairly discriminates against their franchise businesses. But unfortunately for the plaintiffs, there’s nothing illegal, preempted, or unconstitutional about these sorts of distinctions.

Under Seattle’s ordinance, “small” businesses—those with 500 or fewer employees—phase in to $15 slower than larger businesses: 7 to 10 years versus 3 to 4. The bone of legal contention in this lawsuit is the provision that counts the number of employees based on the entire franchise network, rather than the number employed at single franchise store. But whether or not this is unfair or disadvantageous to franchise owners, it is not illegal.

Government regulations discriminate between different businesses all the time—based on size, industry, location, and whatever. In fact Washington State already has an entire chapter of the RCW devoted specifically to regulating franchises! There’s nothing novel about these sorts of regulatory distinctions. The only possible legal question, Iglitzin insists, is whether these distinctions are rational.

“There is a reason why you open a Burger King franchise rather than a Goldy’s Hamburgers,” explains Iglitzin, “and that is because there is value in being part of a larger network.” The franchiser provides branding and advertising, legal and administrative support, even payroll and human resource guidelines. Franchisees benefit from preexisting good will, and franchisers have both the incentive and the ability to assist franchisees in adapting to higher labor costs.

The legal test for both the “equal protection” and the “rights and immunities” claims is “is there a rational argument for treating franchisees differently?” says Iglitzin. And his answer is an emphatic yes.

“It is self-evident that franchisees are different from other employers,” says Iglitizin. And so it is perfectly legal to write regulations that treat franchisees differently.

The Franchise Association’s complaint was filed in the US District Court of Western Washington. And FYI, there is not a single word in its 34 pages challenging the minimum wage itself, only the regulatory distinction between franchisees and other businesses. So yes, the fast food industry has capitulated on $15.

UPDATE: No, I’m not an attorney. But David Ziff is. And he also thinks that there’s “not much merit” in the complaint, and for a lot of the same reasons.

Over at my alma mater Slog, there’s a guest post up by Dave Hoover, a Colorado police sergeant and uncle of Aurora theater shooting victim A.J. Boik, urging support for Washington’s Initiative 594:

In Colorado, we responded to the unacceptable reality of gun violence by requiring background checks on private sales. It’s the best thing we could have done to honor the lives of our loved ones. Washington has an incredible opportunity this year to prevent future acts of gun violence by passing Initiative 594’s common sense background checks.

Since 2013, Colorado’s background checks on private sales have worked well for everyone in our community. Ninety-eight percent of the over 11,000 private sale background checks performed have been approved while 227 prohibited purchasers were stopped from purchasing firearms. I have personally used the system twice: once to purchase firearms and once to sell them. It’s a simple and convenient system that keeps firearms out of the hands of those who shouldn’t have them—felons, abusers, and the dangerously mentally ill.

It’s a moving and thoughtful piece. Read the whole thing.

(Presumably up next on Slog, following the equal time doctrine they adopted on the minimum wage debate in the immediate wake of my departure, will be an anti-594 guest post from a potentially disenfranchised mass shooter.)

One of the cruel ironies of the minimum wage battle is that some of the people most responsible for winning a $15 minimum wage aren’t benefiting from the victory. It is fair to argue that without the SeaTac $15 minimum wage initiative helping to define the terms of the debate, Kshama Sawant might never have won her $15-fueled run for Seattle city council. And had not both the SeaTac initiative and Sawant won in November, the mayor and the council would not have felt nearly as much pressure to pass a $15 ordinance so quickly, if at all.

Yet thanks to a post-election ruling from a King County Superior Court judge, thousands of Sea-Tac Airport workers have not been delivered the wages and workplace protections the initiative promised.

Plaintiffs argued, and the judge agreed, that RCW 14.08.330 grants the port “exclusive jurisdiction” over airport operations. And the plain language of that statute certainly appears to support that interpretation. But an amicus brief (pdf) filed by Washington State Attorney General Bob Ferguson says not so fast.

Ferguson argues that the apparently plain language of RCW 14.08.330 must be interpreted in conjunction with conflicting statutes, specifically RCW 49.46.120, which allows local minimum wage laws that are more favorable to workers to supersede state and federal minimum wage laws. Ferguson’s argument is a clever one. Yes, RCW 14.08.330 grants the port “exclusive jurisdiction,” but only “subject to federal and state laws, rules, and regulations.” RCW 49.46.120 is a state law, and one that grants minimum wage jurisdiction to local governments. Connect the dots, reasons Ferguson, and RCW 14.08.330 grants minimum wage jurisdiction to the City of SeaTac via RCW 49.46.120.

Ferguson argues that since the statutes conflict, “the Court has to look to the legislative intent in passing RCW 14.08.330 to discern the precise scope of the Port’s ‘exclusive jurisdiction:'”

Here, this Court has already explained the Legislature’s intent in enacting RCW 14.08.330. Shortly after the law passed, this Court held: “The effect of this section, when read in the light of the entire Revised Airports Act, is merely to preclude [other local governments] from interfering with respect to the operation of the Seattle-Tacoma airport.” King Cnty. v. Port of Seattle, 37 Wn.2d 338, 348, 223 P.2d 834 4 (1950).

Under Ferguson’s reading, unless SeaTac’s minimum wage ordinance interferes with the operation of the airport, it is permissible. Which brings us to Ferguson’s second—and I think more persuasive—argument: that without jurisdiction there can be no “exclusive” jurisdiction.

For years, port commissioners had insisted that they had no legal authority to set a minimum wage at the airport, so sorry, there was nothing they could do about the horrendous wages and job conditions of airport workers. It was only after the SeaTac initiative passed that the port reversed itself, not only arguing that it, not the City of SeaTac, had jurisdiction over minimum wages at the airport, but joining Alaska Airlines and the other plaintiffs in arguing that such jurisdiction needn’t be considered at all.

The judge agreed, ruling that RCW 14.08.330 gave the port exclusive jurisdiction while leaving unsettled whether the port had the legal authority to set a minimum wage.

Citing both prior case law and, well, logic, Ferguson calls bullshit on that:

If the Port has no jurisdiction over such wages, it cannot as a matter of logic have exclusive jurisdiction over them. And as a matter of legislative intent, if the Legislature gave the Port no authority over this topic, it is hard to imagine that the Legislature intended to oust the authority of other local governments recognized in RCW 49.46.120.

[…] In interpreting the Port’s powers, it is important to remember that: “The Port, as a municipal corporation, is limited in its powers to those necessarily or fairly implied in or incident to the powers expressly granted, and also those essential to the declared objects and purposes of the corporation. If there is a doubt as to whether the power is granted, it must be denied.” Port of Seattle v. Washington Utils. & Transp. Comm’n 92 Wn.2d 789, 597 P.2d 383 (1979).

In essence, Ferguson argues that for the court to rule the port has “exclusive” jurisdiction over setting a minimum wage at the airport, the court must first rule that the port has any jurisdiction over setting a minimum wage at all. And nothing in state statute explicitly grants the port such power. Therefore, says Ferguson, the limited scope of the port’s “exclusive jurisdiction” leaves jurisdiction over the minimum wage in the hands of the City of SeaTac.

Clever, clever.

Of course, I’ve only summarized the major points of Ferguson’s 17-page brief. There’s a lot more to it. So read it for yourself.

As for the plaintiffs, their reply (pdf) is perhaps telling:

Neither of the arguments made by the Attorney General was raised by any party to this appeal.  This Court does not consider arguments that are raised only by amici curiae.

The plaintiffs go on to insist that the two statutes should not be read together, and that the scope of the port’s employment regulation authority is not at issue in the appeal. It is largely a procedural defense against some very compelling arguments.

So, how will the court rule? Initiative sponsors seem pretty confident that they will prevail on appeal. Put a gun to my head and I’d have to agree. But this isn’t a slam dunk case.

Oral arguments will be held before the court on June 26, with a decision expected later this year.

A Lee County, Florida man shot and killed his wife and three daughters—ages 10, 6, and 2—over the weekend, before turning the gun on himself. Sheriff Mike Scott called it the single-largest mass shooting in Lee County history.

“This is everyday USA behind me,” Scott said on Sunday as he was standing front of the crime scene. “Something snapped, something went terribly wrong. And we’ll never know the answer to why.”

No, probably not. But we do know the answer how: He had a gun. Whatever it was that set the shooter off—alcohol, mental illness, a domestic dispute—it was the immediate availability of the gun (which he no doubt kept to protect his family) that made his awful impulse so deadly.

To emphasize that point, a neighbor, Karen Downare, is quoted remembering the shooter as a “kind, gentle, loving dad.”

“If you would have told me that it was possible for him to ever do this, I would have told you you’re a liar,” she insisted. “That it was not possible for that man to do that to his family.”

Tragically, yes, it was possible, Karen. With a gun.