Looking Ahead: Enforcement For the Many, Not the Few

By Alexander Hertel-Fernandez Deepak Bhargava

Tagged regulations

Vice President Joe Biden is fond of a stump speech line that implores his opponents not to profess lofty values without showing their budgets. Budget priorities, Biden argues, reveal whether or not politicians’ professed policy commitments are sincere. If elected to the presidency this November, Biden will have the opportunity to align the budget of the federal government with his values—and the first place where a Biden Administration should start is with enforcement. As part of its initial budget proposal to Congress, a Biden Administration should dramatically reallocate revenue and staff away from the carceral state that surveils, detains, and polices Black and Brown people. Instead, these resources should flow toward aggressive enforcement of the predations of powerful economic entities and discriminatory actors. In addition, the Biden Administration should work in close partnership with civic groups representing affected constituencies through a strategy of “co-enforcement.” Both proposals would improve the lives of millions of Americans, expand venues for democratic participation for historically excluded groups, and undermine important bases of economic and political support on the right.

The scope of the federal government’s enforcement authority is vast. Thousands of federal laws enable, restrict, or prohibit actions by individuals, organizations, and corporations. As a result, enforcement of existing laws is always selective. Judgments about which laws are enforced are driven by the priorities of a particular administration and, above all, by the budget allocations received by federal agencies. Without the financial resources necessary to hire more staff to conduct investigations, prosecute lawsuits, and monitor compliance, even agencies that are eager to enforce federal laws vigorously cannot do so.

Taken as a whole, the nation’s enforcement resources have remained overwhelmingly devoted toward policing, aid to state and local police forces, immigration enforcement, and border control—institutions and activities that inflict disproportionate brutality on Americans of color and undermine the democratic rights of Black, Brown, and immigrant communities. The chart below illustrates the dramatic differences between federal resources for various enforcement agencies in fiscal year 2020. The funding for enforcement of worker protections—ensuring that workers are actually paid the minimum wage or that safety and health rules are followed by employers—is miniscule by comparison to other agencies. Immigration and Customs Enforcement (ICE), for instance, currently receives 36 times as much funding as does the Wage and Hour Division within the Department of Labor. The resources devoted to enforcement of civil rights laws—for example, employment discrimination, fair housing, and other civil rights claims—are also shockingly small. ICE receives a staggering 57 times more funds than does the Civil Rights Division within the Department of Justice and 120 times as much as the anti-discrimination unit within the Department of Housing and Urban Development.

Although Democratic administrations in recent years have tended to reallocate resources toward progressive priorities—like expanding the Civil Rights Division in the Department of Justice—they have tended to do so only at the margins. The Obama Administration’s last budget allocated similar proportions of resources to immigration enforcement as they did to labor law violations and civil rights litigation under the Trump Administration. Under Obama, ICE received about 26 times as much funding as the Wage and Hour Division and about 38 times as much funding as the Civil Rights Division.

The upshot is that, across federal enforcement agencies, the state is far more likely to police violations of immigration laws than workplace safety and health issues or housing discrimination. The same is true within enforcement agencies, too: The Internal Revenue Service, for instance, audits low-income Earned Income Tax Credit recipients at a higher rate than nearly all other households. As a consequence, the likelihood that tax evasion by the mega-wealthy, an employer’s failure to pay his employees minimum wage, or discrimination by landlords against Black tenants will result in an enforcement action by the federal government is vanishingly small—even as research indicates that such practices are pervasive, even commonplace. Consider violations of minimum wage law: Recent nationally representative estimates suggest that between 12 to 16 percent of low-wage workers failed to receive their legally entitled wages during the Obama Administration, with rates of wage theft even higher for immigrants, Hispanic workers, and women.

This skewed allocation of resources does not reflect the professed commitments of the Biden campaign to racial and economic justice. Nor does it reflect the recently adopted Democratic Party platform. Should Biden prevail in the election, a Biden Administration should therefore put its values into action by rebalancing the federal government’s enforcement expenditures, not simply at the margins as previous Democratic administrations have done, but by dramatically reducing spending on the punitive carceral state and investing those same resources to police anti-discrimination statutes, workplace protections, health and safety laws, and consumer rights.

Yet, even a massive reallocation of federal enforcement spending would still leave a large gap in the resources that many agencies need to reach across the country. In an extreme hypothetical, consider that reassigning all ICE employees to the Department of Labor to enforce labor standards laws would still mean that around 20,000 inspectors would be responsible for protecting more than 140 million workers in some 10 million business establishments—an impossible task. To bridge this gap, a refocused federal enforcement apparatus ought to work closely with civic organizations representing the constituencies that the agencies are tasked with protecting.

Such collaboration can take many forms, including the model of “co-enforcement” developed by Janice Fine in the labor law setting, in which worker organizations are given equal standing with government and employers to monitor and enforce workplace standards. When designed effectively, these approaches can magnify both the effectiveness and reach of federal enforcement by relying on organizations that have trusted relationships with often vulnerable constituencies and greater knowledge of the conditions “on the ground” that can guide decisions about how to allocate scarce resources. State and local agencies in California have experimented with several successful co-enforcement regimes for labor law, providing a guide for what a federal approach might look like.

While past work on co-enforcement has generally focused on labor standards, one could imagine parallel approaches across other federal statutes. The Department of Housing and Urban Development, for instance, has historically made grants to community organizing groups to conduct paired audit testing to identify cases of housing discrimination. These tests have been incredibly effective, resulting in major settlements forcing systematic changes by landlords who discriminate against people of color and other protected groups. A Biden Administration could ramp up such efforts once again and apply the same community-based testing to document, litigate, and challenge discrimination in employment, health care, and educational opportunities.

Taken together, our proposal to reallocate federal enforcement funds and to work in partnership with civic organizations could carry a number of concrete social, economic, and political benefits. First, our proposed agenda would send a clear signal to the country about the values of a Biden Administration, and begin to improve the well-being and economic standing of communities of color, low-wage workers, and other marginalized groups. But it would have wider-reaching effects as well, addressing the daily stigmatization faced by racial and ethnic minorities and opening up the possibility of restoring faith in government and civic participation among populations long distrustful of the state because their defining experience with government has been that of surveillance, policing, and incarceration. By ramping up spending to enforce anti-discrimination provisions, moreover, the government could open up access to previously segregated and stratified labor markets and neighborhoods, enabling greater labor and residential mobility and unleashing more economic growth. Last, for a Biden Administration (wrongly, in our view) concerned about budget deficits, this strategy holds the promise of generating more revenue through improved tax collections and by recouping fines from violators of labor and civil rights laws.

Just as important as the social and economic effects are the implications a large-scale reorientation of enforcement resources could have on the distribution of political power. In particular, we see great potential in this approach for building long-term, durable clout for historically marginalized communities while simultaneously demobilizing the economic and political power of organizations opposed to progressive values.

Thinking about public policy as a means of reshaping power in both the market and politics is the way conservatives, not progressives, have typically approached governance. Whenever they come into power, Republicans have not hesitated to quickly enact measures that gut labor unions, community organizing groups, and reproductive health advocates while simultaneously expanding the rights of wealthy people and businesses to participate in politics. If progressives are serious about rebalancing a heavily tilted democracy and economy, they cannot shy away from using policy to give—and take—political and economic power.

Seen through this lens, a radical reorientation of enforcement resources has the potential to shift power in several ways. Substantially stronger enforcement of labor, wage, and hour laws will make it easier for workers to organize in unions and other worker organizations that could boost workers’ standing in the market and in politics. Such investments will also increase the cost of “low-road” corporate models, especially those relying on low pay, poor safety and health records, and high labor turnover. Faced with these incentives, low-road companies must either adapt or go out of business, thereby removing important opponents of progressive economic policy and bad market actors. Landlords who discriminate, wealthy people who avoid paying their fair share of taxes, and corporations that abuse workers would be put on the defensive by an aggressive campaign of enforcement by the federal government. All of these mechanisms would reduce their social, economic, and political power, which so profoundly distorts policymaking.

Greater funding for enforcement of anti-discrimination laws with respect to recipients of federal grants and contracts would also have power-shifting consequences. This would make it less likely that religious organizations discriminating against women, LGBTQ people, or others receive support from the federal government. Without such funding, many of these groups might need to scale back their operations or close altogether, weakening a formidable constituency for policies like exemptions from civil rights laws and restrictions on access to reproductive health services.

Last, large-scale investments in co-enforcement efforts would bolster civic organizations representing historically marginalized communities. Not only would a federal co-enforcement agenda provide new and much-needed revenue streams to unions, worker centers, racial justice groups, and immigrant rights organizations, but it would also help those organizations reach new members, engaging them in the political process. Revitalized civic organizations could, in turn, provide a political counterweight to the concentrated economic interests that dominate our current policymaking.

In sum, overhauling federal enforcement priorities with an eye toward protection of, and collaboration with, vulnerable communities will respond to the demands of voters and social movements—and dramatically improve the quality of life and political presentation for millions of Americans. It should be a first priority for a new Biden Administration.

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Looking Ahead: Enforcement For the Many, Not the Few

By Alexander Hertel-Fernandez Deepak Bhargava


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Alexander Hertel-Fernandez is Associate Professor of Public Affairs at Columbia University and the author most recently of State Capture: How Conservative Activists, Big Businesses, and Wealthy Donors Reshaped the American States—and the Nation (Oxford, 2019). He is a member of Scholars Strategy Network and a fellow with the Roosevelt Institute.

Deepak Bhargava is a senior fellow at the Roosevelt Institute and a Distinguished Lecturer at the CUNY School of Labor and Urban Studies.

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