What’s at stake in the 2022 midterms: UCLA Law faculty weigh in

November 7, 2022
UCLA Law faculty on issues in the midterm elections

A candidate’s messaging, charisma and likability may all factor into a voter’s decision on election day. But the rubber hits the road when those candidates get sworn into office and begin to write, pass and block legislation that affects citizens’ everyday lives. Beyond the legislation that elected officials may pass, other issues loom large in the midterms, including election integrity and the evolving role of social media.

Here, UCLA School of Law’s faculty experts share what they’re paying attention to.

Bail reform

Previously a deputy public defender, Alicia Virani is the Rosalinde and Arthur Gilbert Foundation Director of the Criminal Justice Program at UCLA Law. An expert in pretrial detention, she co-chairs the Los Angeles Alternatives to Incarceration Pretrial Subcommittee and the Los Angeles Jail Population Review Council’s court-related procedures ad-hoc committee. Although crime has become a major talking point in many midterm campaigns, Virani points out that research shows that crime has not increased significantly and that any rise in the crime rate would not be a result of recent bail reforms.

“In the midterms, we are seeing a return to age-old strategies that use fear based in falsehoods, not facts, to stir up concern over crime. Many are attempting to point specifically to bail reform as increasing crime. In Los Angeles, when people were being released during the pandemic under an emergency bail schedule, the Chief Executive Office found that rates of rearrest were either below or similar to historic averages,” she says.

Book bans and CRT

Kimberlé Crenshaw is a Distinguished Professor of Law, the Promise Institute Chair in Human Rights, and co-editor of the seminal 1995 legal text Critical Race Theory. As co-founder and executive director of the African American Policy Forum, she has been touring the country this fall in a “Books Unbanned Bus Tour” to encourage Black voter turnout, and to discuss book-banning efforts in local communities.

“Book bans are a growing symptom of a much larger disease in the fight for our democracy, and nothing feels more urgent than that in 2022,” Crenshaw says.

“So much more is at stake in this election with regard to book banning than what the national media is discussing. This is true not only because the suppression of anti-racist ideas and the learning of true history in our schools is dangerous in and of itself but also because it is deeply connected to other anti-democratic efforts, such as voter suppression or electoral gerrymandering. The same people who are trying to gerrymander our elections are trying to gerrymander our history in a way that makes it more likely that the worst parts of our history get repeated.”

She points out the importance of staying engaged in local elections, not just presidential or high-profile senate campaigns.

“Book bans in states across the country were made possible when voters, and especially Black voters whose children would be disproportionately impacted by these bans, were not paying close enough attention. Opponents of the freedom of ideas target these down-ballot races because they know the power of local impact. So, people who care about democracy and the freedom of ideas have to engage at every level, and especially in school board elections, to fight for a sustainable future where great authors like Toni Morrison and Zora Neale Hurston can be read by our children,” she says.

Climate change

Professor Jonathan Zasloff teaches environmental law, land use, housing discrimination law, and Jewish Law. He previously served as a senior policy advisor to the speaker of the California Assembly, and he continues to have an academic interest in public institutions’ responses to social problems like climate change. California and New York have landmark climate change legislation on their midterm ballots. In California, Proposition 30 would levy a 1.75% income tax on earnings over $2 million to fund electric and hydrogen vehicle charging stations and wildfire suppression and prevention programs. The issue is not just about climate, but equity, Zasloff says.

“Electric vehicles are not just about climate,” he says. “They are also about localized air quality impacts that disproportionately affect low-income communities of color. The faster and more effectively we can transition to EVs, especially in the truck sector, the more we can help low-income children of color grow up with cleaner air.”

Cryptocurrency regulation

Professor Andrew Verstein studies corporations and market abuse and is the faculty co-director of the Lowell Milken Institute for Business Law and Policy. In recent years, he has been watching how the Securities and Exchange Commission and the Commodities Futures Trading Commission have asserted jurisdiction over cryptocurrency.

“Going into the midterms, the regulation of assets like cryptocurrency and NFTs is in flux,” he says. “Several bills have been introduced in Congress to address overlapping turf between the SEC and CFTC. They generally favor the CFTC, a regulator considered more accommodating of industry. The bills are all bipartisan, so don’t place much weight on whether Democrats lose or keep their majority. But elections can alter committee assignments, changing the relative power of the bills’ sponsors. And a surprise Democratic landslide would revive the prospects for a bill vindicating the SEC.”

Election integrity

Professor Richard Hasen is an internationally recognized expert in election law, who is an election law analyst for NBC News and MSNBC. He directs UCLA Law’s Safegaurding Democracy Project and writes and speaks regularly about the risks of election subversion, election day polling problems, recounts and losing parties who do not accept election results.

“This is the first major test of our election system since the tumultuous 2020 election and false claims of a rigged or stolen election,” Hasen says. “Voters should have confidence that their votes will be fairly and accurately counted by professionals. One of the biggest questions in 2022 is if those who have doubts about the integrity of the 2020 elections will be elected to run elections in the 2024 presidential election year.”

Free school lunches

Rising food prices are truly a kitchen-table issue in the midterms. But free school lunches are a policy topic that Diana R. H. Winters, director of the law school’s Health Law & Policy Program and deputy director of the Resnick Center for Food Law & Policy, is closely watching. The USDA’s universal meal program expired this fall, but some states including California, Maine and Vermont are promising to provide every child with free breakfast and lunch. In the meantime, advocates are pushing for federal legislation.

“Democrats in Congress have proposed legislation that would expand students’ access to free school meals, and the USDA is increasing its reimbursement rates for free meals,” Winters says. “The balance of Congress makes a difference in terms of these issues.”

Gun safety

Adam Winkler, the Connell Professor of Law, specializes in gun policy, constitutional law and the Supreme Court. He is the author of Gunfight: The Battle Over the Right to Bear Arms in America (W.W. Norton, 2011) and the award-winning We the Corporations: How American Businesses Won Their Civil Rights (Liveright/W.W. Norton, 2018), which was a National Book Award finalist.

Winkler says that the midterms are unlikely to lead to any changes in federal gun legislation.

“For years, Congress has been unable to pass major gun legislation due to the filibuster. The need for 60 votes in the Senate has proven to be an insurmountable barrier to gun reform,” he says.

But, he adds, we may see shifts at the state level. “Gun safety remains an important issue in the states, and if the elections result in a change in the majority political party in any particular state, it could have an impact,” he says. “A newly Democratic-controlled state might well pass new restrictions, like a ban on assault weapons or a red flag law, while a newly Republican-controlled state might loosen that state’s gun laws.”

Prison labor

Professor Sharon Dolovich is the faculty director of UCLA's Prison Law & Policy Program and the founding director of the COVID Behind Bars Data Project. She is watching five U.S. states – Alabama, Louisiana, Oregon, Tennessee and Vermont – where voters will decide whether or not to eliminate language in their state constitutions that allows slavery for people convicted of criminal offenses, an exception written into the 13th Amendment.

Dolovich says that hundreds of thousands of people incarcerated in U.S. prisons work, often involuntarily and for little to no pay. If the measures pass, they could give lawyers the freedom to pursue greater rights and higher pay for incarcerated workers. It could also enable incarcerated workers themselves to challenge forced labor.

“This is the beginning of a wave. I suspect that a decade from now, we’ll look back and be horrified that, in 2022, so many states still had these provisions on the books,” she says.

Reproductive rights

Professor Cary Franklin is the McDonald/Wright Chair of Law and faculty director of both the Williams Institute and the Center on Reproductive Health, Law, and Policy. Franklin helped write California’s Proposition 1, which adds reproductive freedom to the list of constitutionally protected rights in the state. Reproductive rights stand to be impacted at both the state and national level in these midterms, she says.

“President Biden has promised to push for codification of Roe v. Wade if Democrats control Congress. If Republicans take control, they may push for a national abortion ban. That would be unpopular with the majority of voters, but if Congress shifts rightward, it’s a possibility,” she says.

“On the state level, there are numerous races that could determine whether states pass laws barring abortion or protecting reproductive rights. Voters in four states will vote on abortion-related ballot measures. Prop 1 in California will amend the California Constitution to protect ‘reproductive freedom’ explicitly. Similar amendments are on the ballot in Michigan and Vermont. Kentucky is considering an amendment stating that its constitution does not protect the right to abortion.”

Social media fragmentation

Professor Doug Lichtman is faculty director of the Ziffren Institute for Media, Entertainment, Technology and Sports Law. His teaching and research focus on law and technology, specializing in patent and copyright law, telecommunications regulation and information strategy and economics.

“What we have seen in recent elections and will again see here is the growing chorus of allegations that one or another social media platform itself leans toward some specific political ideology,” Lichtman says. “That, in turn, is leading wealthy individuals like Kanye West, Elon Musk and Donald Trump to purchase or create alternative means by which to reach their audiences. The implications there remain to be seen, but obviously we should worry about the creation of echo chambers where like-minded people start talking only to people just like them.

“That’s not only a threat to this ballot box, but, more generally, to the future of voting and democracy.”

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