Disbarred: A Nationwide Analysis of the Impact of Mandatory Bar Associations on Lawyer Population

Disbarred: A Nation-wide Analysis of the Impact of Mandatory Bar Associations on Lawyer Population

The legal profession is one of the most heavily regulated professions in the United States. Aspiring lawyers must obtain a bachelor’s degree, perform well enough on the LSAT to attend an American Bar Association (ABA) accredited law school, graduate law school, and pass the bar exam in whichever state they wish to practice. This takes a minimum of four years to accomplish – from sitting for the law school entrance exam to being sworn in to practice law – and is very expensive. The time investment alone, not to mention the financial and intellectual requirements, limits the pool of potential lawyers.

In addition to onerous and often unnecessary education requirements, some states have imposed an additional layer of regulation by requiring lawyers to maintain membership in a state bar association, often referred to as a mandatory bar association. These associations combine the traditional aspects of a voluntary bar association (such as networking, education, and legislative lobbying) with the regulatory and disciplinary functions of the state. Because of this, mandatory bar associations are sometimes referred to as “unified” or “integrated” bar associations.

Figure 1: Mandatory v. Voluntary Bar Associations by State

Source: See endnote 1 – Brief for Petitioner, Crowe v. Oregon State Bar.

Today, mandatory bar associations exist in 30 U.S. states.^[1] These associations emerged in the mid-1900s as the primary form of legal regulation. They were often founded as voluntary organizations, but then, after some period of time and often at the request of bar association leadership, were vested with the regulatory power of the state.^[2] Proponents view mandatory bar associations as the gatekeepers of the legal profession in their respective states, and believe that they raise the quality of the legal profession through licensing, discipline, advocacy, and mandatory continuing legal education.^[3] In addition, they believe mandatory bar associations are a vital form of consumer protection. Since clients are generally not well-informed about the particulars of practicing law, it can be difficult for the for them to know which attorneys are competent and trustworthy. This informational asymmetry – consumers lacking the knowledge they need to make good hiring choices – could harm clients as well as third parties not directly involved in the interaction.^[4]

Figure 2: New Lawyer Annual Dues/Licensing Fees

Source: Individual state websites; data available from author.

Without some form of consumer protection, the theory goes, lawyers could offer substandard service since their clients are not able to differentiate high-quality from low-quality service. Proponents claim that mandatory bar associations reduce the risks created by the information asymmetry dilemma through the use of licensing and disciplinary action. By instituting accountability measures and limiting the pool of lawyers to those who are deemed trustworthy, mandatory bar associations protect consumers.^[5]

So, if mandatory bar associations are needed to protect the public, does that mean states with voluntary bar associations allow lawyers to practice completely unregulated and to prey on clients without fear of repercussions? Quite the contrary. The regulatory regime in states with voluntary bar associations is much the same as that in states with a mandatory bar association. Lawyers are still generally required to graduate from ABA accredited law schools, pass the bar, and pay annual license dues. However, they do not have any First Amendment concerns (discussed below), and average dues are cheaper than if they were paying to subsidize a private entity that had been vested with the power of the state. For example, the average annual dues for active members in mandatory states are approximately $407, while the average annual licensing cost for active lawyers in voluntary states is approximately $263.^[6] (Figure 2 shows the annual dues for new members in mandatory states compared to the annual licensing cost for new members in voluntary states.) In addition, there is scant evidence that mandatory bar associations have any significant impact on the quality of legal services compared to voluntary states.^[7]

Many lawyers view the actions of mandatory bar associations as an infringement of their First Amendment rights. Citing Janus v. ASFCME (2018), some lawyers have brought legal challenges against mandatory bar associations – see e.g., Fleck v. Wetch (8^th Cir. 2019) and Crowe v. Oregon State Bar (9^th Cir. 2021) – stating that they violate their rights to free speech and association protected by the First Amendment.^[8] For example, lawyers are compelled to pay dues to an organization such as the Oklahoma Bar Association (OBA), which frequently lobbies, makes political statements, and advocates for specific policies. Therefore, these lawyers are funding political speech – whether they agree with it or not.^[9] As a result, they maintain that required membership in a bar association is constitutionally suspect and should be treated the same way the Court treated compelled payment of union dues in Janus.^[10]

First Amendment concerns aside, critics also claim that mandatory bar associations act as a monopolistic barrier to entry for aspiring lawyers and drive part-time practitioners out of state. Licensing does not typically form at the demand of the consumer, but at the request of practitioners. This brings into question whose interests are being served by licensure: the producer’s or the consumer’s. Further, producer control of licensing can be used to obtain a monopoly at the expense of consumers.^[11]

Once producers have monopolistic control of a profession through licensing, they enact regulations that serve as a barrier to newcomers, insulate them from competition, and keep prices high. This in turn leads to a reduction or stagnation in the population of producers in said profession. An additional layer of regulation, such as mandatory membership in an organization that charges dues, can only serve to exacerbate those problems.^[12] Unfortunately, this is the state of legal regulation in the United States today. Mandatory bar associations are simply the final cog in the machine for complete producer control of licensing.

Much of the debate surrounding these organizations revolves around a normative discussion of their effect on the practice of law, but little empirical research has been done on the subject. Using a Large-N statistical analysis with data collected from various state judiciary and bar association websites, the American Bar Association, the National Conference of Bar Examiners, the Cato Institute, the Bureau of Labor Statistics, and the U.S. Census Bureau, this study examines the effect that mandatory bar associations have on state lawyer populations. It is possible that the added regulation of a mandatory bar association acts as yet another barrier to entry into the field for aspiring young lawyers or even serves to push low-income practitioners out of the field (due to higher dues/fees).

The analysis indicates that mandatory bar associations have a significant negative impact on state lawyer population. That is, if a state has a mandatory bar association it is likely to have between five and six fewer lawyers per 10,000 population than a state with a voluntary bar association. Figure 3 shows lawyers per 10,000 in mandatory bar states compared to voluntary bar states. Even without a sophisticated statistical analysis, the figure shows a clear tendency for voluntary bar states to have more lawyers per capita than mandatory bar states.

Figure 3: Lawyers per 10,000 Population by State

Source: See endnote 13 – U.S. Census Bureau, ABA Lawyer Population survey

The methodology as well as the results of the statistical analysis are explained in more detail in the Appendix. Two linear regression models, one including the State of California and one excluding it, were specified since California’s mandatory state bar membership was only eliminated in 2018. With or without California, the analysis indicates that a state with a mandatory bar association will average roughly 15-20 percent fewer lawyers per 10,000 population given the national average of approximately 34 lawyers per 10,000. The state of Oklahoma sits very close to the nation-wide average with approximately 34.2 lawyers per 10,000 population. This suggests that Oklahoma could have as many as 40 lawyers per 10,000 were it not for the mandatory bar structure currently in place. This increase in supply could lower the cost of legal work for consumers and improve access to justice in this state.

Conclusion

These findings raise serious questions concerning the availability of the legal profession and the access to justice that it provides. For example, if the number of lawyers is limited by licensing requirements and a mandatory bar association, those deemed “qualified professionals” are then able to charge more money for their services. Higher prices and fewer lawyers reduce access to justice by denying service to those who cannot afford it. Combine this with the legitimate First Amendment issues raised in Fleck and Crowe, and a serious case can be made for the abolition of all mandatory bar associations.

Two states have eliminated their mandatory bar in the past 10 years – Nebraska in 2013 and California in 2018 – one a deep blue state, the other a deep red state. If these states can recognize the flaws of a mandatory bar association system and act to fix them, the state of Oklahoma can do so as well. The Oklahoma legislature should follow the example set by California (in this rare instance) and Nebraska and remove the regulatory power of the Oklahoma Bar Association, thus returning it to voluntary status.

 

 

APPENDIX

As stated above, the statistical analysis was performed using a Large-N statistical analysis with data collected from various state judiciary and bar association websites, the American Bar Association, the National Conference of Bar Examiners, the Cato Institute, the Bureau of Labor Statistics, and the U.S. Census Bureau. The statistical computing software, R, was used to perform the linear regressions in the analysis. The analysis includes 49 states; Delaware was dropped because it does not report median wage data to the Bureau of Labor Statistics.

Dependent Variable

State lawyer population is the dependent variable, and is derived by dividing the number of lawyers per state by the state’s total population. The data for lawyer population is taken from the American Bar Association’s National Lawyer Population Survey (2020), which is the most comprehensive estimate of lawyer population available, and state population is taken from the U.S. Census Bureau apportionment data (2020).^[13]

Independent Variables

The independent variable in the analysis of particular interest is Mandatory Bar Association, which measures whether a state requires membership in a bar association for practicing lawyers, and is listed as either mandatory or voluntary. It is coded dichotomously (“0” for voluntary and “1” for mandatory). The expected sign of the statistically calculated coefficient is negative given that a mandatory bar is expected to exert a negative impact on the number of lawyers.

Median annual income for lawyers, a control variable, is taken from the Bureau of Labor Statistics (BLS) Occupational Employment Statistics (2020). Median annual income controls for fluctuations in lawyer population based on income level per state, and is coded as a dollar amount per state.^[14]

State bar exam fees is included as a control because they are an indicator of the initial cost associated with practicing law in a specific state and could influence an individual’s choice to practice law in a specific area. Data for bar exam fees is taken from the National Conference of Bar Examiners (NCBE) Comprehensive Guide to Bar Admission Requirements.^[15] Bar exam fees are coded as the dollar amount required for first time test takers (financial cost). This is because there are multiple price levels for the bar exam based on the number of times the test has been taken, previous law experience in another state, and other factors. Cost for first time test takers is used as it best represents the initial cost associated with becoming licensed to practice law in a specific state.

Bar dues/licensing fees are used as a control variable because monetary influences could have an effect on an individual’s decision to continue to practice law in a specific state. Unfortunately, there is not any research available which has collected the bar association dues or licensing fees by state. As a result, data was collected from individual state judiciary and bar association websites.^[16] They are coded as the dollar amount per year.

The analysis also controls for Continuing Legal Education (CLE) requirements as they could, based on stringency, influence a lawyer’s decision to continue to practice in a certain state. Data for CLE requirements are taken from the NCBE Comprehensive Guide to Bar Admission Requirements (2020), and are coded as hours per year.^[17]

State regulatory policy ranking, taken from the Cato Institute’s Freedom in the 50 States, evaluates the severity of the regulatory regime in each particular state.^[18] This variable was included as a control because the regulatory regime in a given state could affect the lawyer population. For example, if a state has a particularly onerous regulatory regime, there may be a need for a greater number of lawyers to help individuals and businesses navigate the regulations, deal with lawsuits, etc.

RESULTS

The state of California only just recently transitioned out of the mandatory bar system (bifurcated in 2018); therefore, the analysis includes two models.^[19] One with California coded as a voluntary bar state, and one model with it dropped completely. These results are reflected in Table 1 and Table 2 below. Models 1.1 and 2.1 are simply models 1 and 2 run again with statistically insignificant variables dropped.

Table 1: Impact of Mandatory Bar Associations on Lawyer Population (with California)

(Linear regression, standard errors in parentheses) 

VARIABLES	MODEL 1	MODEL 1.1
Intercept	1.970e+01* (1.012e+01)	1.496e+01* (8.567)
Mandatory Bar	-5.257* (3.122)	-6.246** (2.800)
Continuing Legal Education (CLE)	-2.181e-01 (3.151e-01)	—
Bar Exam Fee	-3.528e-03 (6.391e-03)	—
New Member Dues	-7.138e-03 (9.568e-03)	—
Median Annual Income (Lawyers)	1.776e-04** (8.203e-05)	1.656e-04** (7.821e-05)
Cato Regulatory Policy Ranking	-5.060e+01**** (1.210e+01)	-5.094e+01**** (1.128e+01)

NOTE: Coefficient Estimate listed, standard errors are in parentheses. *p<.10, **p<.05, ***p<.01, ****p<.001

MODEL 1

Residual standard error: 8.988 on 42 degrees of freedom

Multiple R-squared: 0.6239

Adjusted R-squared: 0.5701

F-statistic: 11.61 on 6 and 42 DF

p-value: 1.256e-07

MODEL 1.1

Residual standard error: 8.834 on 45 degrees of freedom

Multiple R-squared: 0.6107

Adjusted R-squared: 0.5848

F-statistic: 23.53 on 3 and 45 DF

p-value: 2.604e-09

As shown in Tables 1 and 2, Mandatory Bar has a significant negative effect on lawyer population per 10,000. In addition, Median Annual Income and the regulatory policy ranking also have a significant influence on lawyer population per 10,000.

Table 2: Impact of Mandatory Bar Associations on Lawyer Population (California Dropped)

(Linear regression, standard errors in parentheses) 

VARIABLES	MODEL 2	MODEL 2.1
Intercept	1.385e+01 (9.647)	8.884 (8.211)
Mandatory Bar	-6.267** (2.926)	-6.437** (2.596)
CLE	-2.421e-01 (2.932e-01)	—
Bar Exam Fee	-4.588e-03 (5.955e-03)	—
New Member Dues	6.614e-04 (9.204e-03)	—
Median Annual Income (Lawyers)	2.322e-04*** (7.892e-05)	2.233e-04*** (7.516e-05)
Cato Regulatory Policy Ranking	-5.360e+01**** (1.130e+01)	-5.600e+01**** (1.060e+01)

NOTE: Coefficient Estimate listed, standard errors are in parentheses. *p<.10, **p<.05, ***p<.01, ****p<.001

Model 2

Residual Standard Error: 8.358 on 41 degrees of freedom

Multiple R-squared: 0.6799

Adjusted R-squared: 0.633

F-statistic: 14.51 on 6 and 41 DF

p-value: 8.454e-09

Model 2.1

Residual Standard Error: 8.186 on 44 degrees of freedom

Multiple R-squared: 0.6704

Adjusted R-squared: 0.648

F-statistic: 29.84 on 3 and 44 DF

p-value: 1.106e-10

1. Brief for Petitioner at 18, Crowe v. Oregon State Bar, No. 20-1678 (9^th Cir. Feb. 26, 2021) https://www.supremecourt.gov/DocketPDF/20/20-1678/180337/20210527140414810_Crowe%20Petition.pdf

   Ralph H. Brock, “An Aliquot Portion of Their Dues: A Survey of Unified Bar Compliance with Hudson and Keller.” Texas Tech Journal of Texas Administrative Law 1, no. 23 (2000): 23-89, https://ttu-ir.tdl.org/bitstream/handle/2346/73294/06_1TexTechJTexAdminL23(2000).pdf?sequence=1&isAllowed=y ↑

2. “Board of Governors,” State Bar Association of South Dakota, accessed September 7, 2021, https://www.sband.org/page/board_of_governors

   Charles W. Sorenson Jr., “Integrated Bar and the Freedom of Nonassociation—Continuing Siege,” Nebraska Law Review 63, no. 1 (1984): 34-36, https://digitalcommons.unl.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1925&context=nlr

   Peter A. Martin, “A Reassessment of Mandatory State Bar Membership in Light of Levine v. Heffernan.” Marquette Law Review 73, no. 1 (1989): 146-49, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1730&context=mulr

   Terry Radtke, “The Last Stage in Reprofessionalizing the Bar: The Wisconsin Bar Integration Movement, 1934-1956.” Marquette Law Review 81, no. 4 (Summer 1998): 1004-1014, https://core.ac.uk/download/pdf/148688385.pdf ↑

3. Martin, “Reassessment of Mandatory State Bar Membership,” 144-180. ↑

4. Carolyn Cox and Susan Foster, “The Costs and Benefits of Occupational Regulation.” Bureau of Economics of the Federal Trade Commission (1990): 1–69, https://www.ftc.gov/system/files/documents/reports/costs-benefits-occupational-regulation/cox_foster_-_occupational_licensing.pdf

   Larry E. Ribstein, “Lawyers as Lawmakers: A Theory of Lawyer Licensing.” Missouri Law Review 69, no. 2 (2004): 299–364, https://scholarship.law.missouri.edu/mlr/vol69/iss2/1/ ↑

5. Richard L. Abel, “What Does and Should Influence the Number of Lawyers.” International Journal of the Legal Profession 19, nos. 2-3 (2012): 131–46, https://www.tandfonline.com/doi/abs/10.1080/09695958.2012.783998?journalCode=cijl20 ↑

6. Data available from author. ↑

7. Leslie C. Levin, “The End of Mandatory State Bars?” Georgetown Law Journal 109, no. _ (Spring 2021): 18-19, https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2020/04/Levin_The-End-of-Mandatory-State-Bars.pdf ↑

8. Crowe v. Oregon State Bar (9^th Cir. 2021).

   Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019).

   Janus v. AFSCME Council, 585 U.S. ___, 138 S. Ct. 2448 (2018).

   Brief for the Petitioner, supra note 1.

   Brief for 1889 Institute as Amici Curiae Supporting Petitioner, Crowe v. Oregon State Bar, No. 20-1678 (9^th Cir. Feb. 26, 2021) https://www.supremecourt.gov/DocketPDF/20/20-1678/182938/20210630164038958_1889InstitueAmicus%20Rogers.pdf

   Brief for 1889 Institute as Amici Curiae Supporting Petitioner, Fleck v. Wetch, 937 F.3d 1112 (8th Cir. 2019) (No. 19-670) https://www.supremecourt.gov/DocketPDF/19/19-670/126765/20191226170057940_2019_12_26-Amicus-1889Institute.pdf ↑

9. Brief for 1889 Institute, supra endnote 8, at 6. ↑

10. Brief for the Petitioner, supra endnote 1, at 18.

    Brief for the 1889 Institute, supra endnote 8, at 5. ↑

11. Milton Friedman, Capitalism and Freedom: Fortieth Anniversary Edition (Chicago, Ill: The University of Chicago Press, 2002), 137-160. ↑

12. Bradley A. Smith, “The Limits of Compulsory Professionalism: How the Unified Bar Harms the Legal Profession.” Florida State University Law Review 22, no. 1 (1994): 35–73, https://ir.law.fsu.edu/lr/vol22/iss1/2/ ↑

13. American Bar Association, National Lawyer Population Survey, 2021, https://www.americanbar.org/content/dam/aba/administrative/market_research/2021-national-lawyer-population-survey.pdf

    U.S. Census Bureau, Census Apportionment Results, 2020, https://www.census.gov/data/tables/2020/dec/2020-apportionment-data.html ↑

14. U.S. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, 2021, https://www.bls.gov/oes/current/oes231011.htm#(8) ↑

15. National Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements (charts 9 & 11), 2021, https://reports.ncbex.org/comp-guide/charts/chart-9/ ↑

16. Data available from author. ↑

17. National Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements, 2021, https://reports.ncbex.org/comp-guide/charts/chart-11/ ↑

18. William P. Ruger and Jason Sorens, Freedom in the 50 States – an Index of Personal and Economic Freedom, Cato Institute, 2018, https://www.freedominthe50states.org/ ↑

19. Lyle Moran, “California Split: 1 year after nation’s largest bar became 2 entities, observers see positive change,” ABA Journal, February 4, 2019, https://www.abajournal.com/web/article/california-split-1-year-after-californias-state-bar-became-2-entities-observers-see-positive-changes ↑

 

Rethinking Emergency Powers in Oklahoma

In the ancient Roman Republic, in times of emergency, yearly-elected consuls and the Senate could select a dictator, who was given nearly unlimited powers to accomplish a very limited mission within six months.^[1] An Oklahoma governor can retain emergency power indefinitely. Now that the Covid-19 panic has finally subsided, and cooler heads can prevail, we can and should evaluate not only the wisdom of our governments’ responses to Covid-19, but to improve our emergency institutions so that over-reactions, when they happen, can only be brief in duration.

Emergency powers are necessary, but they are fraught with danger, something the Founders of our republic recognized in government in general. In the chaos of post WWI Germany, Hitler used emergency powers as a ladder to power, serving as a blunt illustration of the dangers of emergency executive powers. On the other hand, there are situations when inaction is not an option. Choosing to evacuate a farm and flood it in order to save a town is a terrible choice, but it is better than letting both the farm and the town flood. Emergency powers should exist, but checks and balances must still be maintained. Oklahoma was fortunate in 2020; our governor felt a duty to remain grounded and restrained in implementing his emergency powers. But our laws should be written to ensure that even if a budding totalitarian is governor, the damage that can be inflicted on us and our institutions will be limited.

In an emergency, Oklahoma’s governor is granted broad powers.^[2] The list, which is long, includes the following: “Make, amend, and rescind the necessary orders and rules to carry out the provisions of the Oklahoma Emergency Management Act…” “direction and control of… the conduct of civilians and the movement of and cessation of movement of pedestrians and vehicular traffic during, prior and subsequent to natural and man-made disasters and emergencies, public meetings or gatherings, and the evacuation and reception of the civil population…” and, “To remove from office any public officer having administrative responsibilities under this act for willful failure to obey any order, rule or regulation adopted pursuant to this act.”^[3]

At least three aspects of Oklahoma’s emergency powers statutes stand out as needing reevaluation and reform. 1) There is no clear definition of emergency, nor any meaningful time limit on the assumption of emergency powers; 2) Cities are allowed to set up tyrannical fiefdoms with no recourse; and 3) Governments have not been made to feel the fiscal weight of their policy decisions.

Defining an Emergency and Limiting Its Duration

Oklahoma stands out among its neighbors when it comes to gubernatorial emergency powers. Oklahoma has no time limit on an emergency declaration.^[4] Kansas has some of the most robust protections in the country. With the exception of Missouri, every state bordering Oklahoma has a time limit on emergency declarations. In Kansas, it is 15 days, and can only be renewed once by the legislature, for an additional 30-day term.^[5] Oklahoma’s emergency powers allow the Governor to modify or suspend laws and regulations indefinitely.

An emergency is not merely a serious situation, but a serious situation where disaster is likely unless immediate action is taken. Since an emergency is necessarily shorted-lived, emergency powers ought to be similarly short-lived. There is no reason a governor should have heightened quasi-legislative powers of indefinite duration. One week ought to be enough time for the legislature to convene and come to a consensus on the next step. If they are unwilling to do so, then perhaps the situation is not a true emergency. If the governor’s plan is a good one, it should be easy enough to convince a majority of legislators to ratify and codify it. If it is a bad one, then even a hastily constructed legislative compromise is likely to be better.

Oklahoma’s Emergency Management Act defines an emergency so broadly as to be meaningless.

“Emergency” means any occasion or instance for which, in the determination of the President of the United States or the Governor of the State of Oklahoma, federal or state assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert threat of a catastrophe in any part of the state. ^[6]

In other words, an emergency is whatever the President or the Governor declares it to be. Under that definition, anything from banning cars, to making tobacco illegal, to ending oil production could be justified on the grounds that it could “lessen threat of a catastrophe” in some part of the state. The definition presumes both the goodwill and good judgment of the Governor. It does not require that the Governor consider less restrictive alternatives. Nor does it force the Governor to consider the tradeoffs - some lives would undoubtedly be saved if no one were allowed to drive, but the long term consequences of such a policy would mean far more people would die of poverty.

The legislature has the power to end an emergency declaration, by joint resolution of both houses.^[7] The problem is that the legislators would then be responsible for taking over management of the so-called emergency. They would be politically accountable for any missteps. This is not a situation most legislators want to find themselves in. Being one of a multi-member body navigating a trying state-wide difficulty does not have much political upside, as each legislator would get only a fraction of the credit for success, while failure could be enough to lose several members their seats. Still, the legislature is the proper body to oversee and expressly authorize action needed to guide the state through any emergency lasting more than a few days.

Recommendation

In a perfect world, the legislature would precisely define events that rise to the level of “emergency.” But if the legislature could foresee events with that level of precision, they would be able to make laws for exactly what to do in each scenario, and no emergency powers would be needed. In reality, a list of potential emergencies is likely to be both over- and under-inclusive, meaning that some things on the list could occur without being true emergencies, and things the legislature never dreamed of might come to pass. A definition should be broad enough to cover real emergencies, but not as broad as “whatever the governor says.” Any definition ought to refer to the purpose of the state government, found in the preamble to the Oklahoma Constitution.

The easier solution is to create accountability and a definite time frame. A governor should not be given carte blanche - even given the difficulty of predicting the next emergency. In addition to its current ability to end an emergency declaration through a concurrent resolution, the legislature ought to be involved in emergency policy earlier.

There should be a definite time limit. Seven days should be enough. If the legislature wants to extend those emergency powers for an additional two weeks, there may be some contingency which could justify that action. But one extension for a given emergency should be plenty. The legislature should have to take over after a total of three weeks. If the governor has done well, the legislature can vote to continue his policies, assuming those policies lie within the powers of the legislature. If they exceed the legislature’s powers, they should be ended immediately and automatically upon the conclusion of the first and only 14 day extension.

Local Governments

The bulk of Covid-19 related restrictions in Oklahoma came not from the state, but from cities and towns, and even school districts. While the state forced so-called non-essential businesses to close for three weeks, from March 24 to April 15, cities enacted longer lockdowns, mask mandates that lasted for months, and some public school districts shut their doors for a full year.^[8]

Recommendation

The solution here is simple. If the governor declares a statewide emergency, a city should not be able enact measures more burdensome than those the Governor has implemented unless the Governor gives the city express permission. To be very precise, the city should have to seek and obtain permission from the Governor for the specific measures the city seeks to implement. This reflects the reality that the needs of Tulsa and Oklahoma City might be different from the needs of Ada, but prevents city governments from implementing radical policy shifts under the guise of an emergency.

Fiscal Repercussions

Governments at all levels have cut people off from their livelihoods, and have not paid the consequences for doing so. The United States Constitution requires a government to compensate the owner when it takes property for the public good.^[9] Oklahoma’s constitution has a similar provision.^[10] These rights have been held to include restitution for a total deprivation of economic value due to burdensome regulations. While the scope of property rights has not been extended to include a job or business (as opposed to the physical property where the job or business is located) the principles involved are very much the same.

When the greater good demands destroying someone’s livelihood, the greater population should bear that cost. It isn’t right that the owner of a parcel should bear the cost of the road a city wants to build. Nor is it right that the owner of a gym should bear the whole cost when fear drives politicians to outlaw gyms for the better part of a year. While it may be true that some gyms would have gone out of business due to declined interest, changes in markets are dramatically different from changes forced on the market by heavy handed government actors.

Giving government actors skin in the game would help them better weigh the risks and rewards of a given policy. Right now their incentive is to play it safe. This is especially true when both online and traditional media act as though there is a single unanimously agreed solution, and brand anyone who questions it an irresponsible irrational denier of Science.

Standing by while the federal government cuts checks to everyone who makes less than six figures may placate voters, but it does not meet the high standard of fair compensation to those who have been forced to give up much so that society can accomplish a little. Worse, states gave enlarged unemployment checks, tantamount to a crack dealer giving out the first taste free.

Recommendations

Ideally, the state should create a mechanism by which business owners and employees can apply to receive full compensation for the harms they suffered under state and city policies. The funds for this should come directly from the government entity’s budget, starting with the salaries of those who enacted the regulations at issue. This puts policymakers in the same position of those they want to regulate. If the sacrifice is really worth it, those policymakers should be happy to share in it.

Barring full compensation, government employees should share in the pain of the regulation. This could be accomplished in several ways. The government’s employees could be put on mandatory furloughs until the government lets businesses reopen. Furlough pay could never be recovered. Alternatively, government workers who can safely do so may be allowed to continue working, but at a greatly reduced salary. The lowest salary for a full-time government employee in the state would be a good baseline. Either of these policies would create a class of political insiders with a vested interested in keeping private businesses of the state and cities open for whatever business is available.

Conclusion

Oklahoma was lucky in 2020. Despite major flaws in our emergency procedures, we were among the lightest-hit by the secondary effects of Covid-19. But this happened only because our leaders made the right choices most of the time. We can’t rely solely on the wisdom and goodwill of elected officials. We must ensure that what happened in other states can never happen to Oklahoma. Structural protections must be put in place so that even the wrong leaders will be incentivized to make the right decisions. This means enacting a tight limited on the amount of time an emergency can be declared to exist, limiting local governments’ scope of action to declared emergencies, and forcing government officials to feel the pain of their decisions when the negatively affect the general populace.

1. Bonner, Robert J. "Emergency Government in Rome and Athens." The Classical Journal 18, no. 3 (1922): 144-52. Accessed July 7, 2021. http://www.jstor.org/stable/3289221. ↑

2. Oklahoma Emergency Management Act of 2003, 63 O.S. 683 et. Seq. https://law.justia.com/codes/oklahoma/2020/title-63/section-63-683-9/ ↑

3. https://law.justia.com/codes/oklahoma/2020/title-63/section-63-683-8/

   https://law.justia.com/codes/oklahoma/2020/title-63/section-63-683-9/ ↑

4. The Governor’s initial declaration can last up to 30 days, but the legislature may extend that declaration for up to 45 days an unlimited number of times. ↑

5. https://mainepolicy.org/project/emergency-powers/ ↑

6. https://law.justia.com/codes/oklahoma/2020/title-63/section-63-683-3/ ↑

7. https://law.justia.com/codes/oklahoma/2020/title-63/section-63-683-9/ ↑

8. Exec Order 2020-07 https://www.sos.ok.gov/documents/executive/1919.pdf

   See e.g. [OKC, Tulsa, Norman orders] ↑

9. U.S. Constitution art. V ↑

10. Article II, §24 of the Oklahoma Constitution ↑