It’s Time to Repeal California’s Article 34
It’s Time to Repeal California’s Article 34
The racist stain on California's Constitution needs to go
California Housing 2: Where We Go From Here 2
In my first newsletter, I listed 11 ideas which I think are important for California housing in 2022. These are areas where we can make the housing economy work better, make housing policy function better, and make housing politics less toxic and self-defeating. Over the next 22 weeks, I will write longer pieces about each idea. If you have a 12th idea and want me to consider it, leave a comment or contact me - perhaps we can even write it together.
When you mention Article 34 of California’s Constitution to folks in California’s housing world, you will find few, if any, defenders.
Article 34 was passed by statewide ballot in 1950 to make it hard for local governments to fund public housing by requiring a public vote (see below for background resources on Article 34). The Federal Government had just passed the historic 1949 Housing Act, setting the stage for the creation of large-scale public housing in the United States. The real estate industry, which had largely fought public housing, joined forces with white homeowners in a campaign with overtly racist messaging and intent. It passed - just barely, with 50.8% of the vote - and was engraved into our State Constitution.
Flash forward 72 years and Article 34 still sits there. Jurisdictions who want to support public or affordable housing have generally found a way to do so, aided by the courts, which have weakened the Article, and by the fact that most financing for affordable housing comes from state and federal sources. It costs these jurisdictions and their affordable housing providers time and money and headache, and makes building affordable housing in less politically willing regions harder to do.
Yet, as much as most housers would recognize that Article 34 is bad, you won’t see a major repeal campaign at the top of most groups’ 2022 wish list. It’s seen by some as symbolic, or simply not important enough to warrant an expensive ballot campaign. Polls show a challenge with the issue of local control, which makes the folks who run campaigns nervous. There hasn’t been a serious repeal campaign in almost 30 years.
I am hoping this year is different. SCA 2, introduced by Senator Ben Allen (D-Santa Monica) has once again introduced a bill which would place Article 34 repeal on the 2022 Ballot. My hope is to convince California’s leaders and citizens that mounting a campaign to repeal Article 34 is one of the smartest and most impactful things we can do right now.
Why? And why now? Aren’t there more pressing priorities given the state of the housing crisis?
Here are 6 reasons to mount a campaign in 2022 to remove this stain from our Constitution.
It can build us a bigger coalition than anything else. While you can certainly find ideas that will build more houses or protect more tenants, Article 34 repeal is the one campaign that can build the largest, deepest and most diverse coalition possible. SCA2 is co-sponsored by the California Association of Realtors, CA YIMBY, and two of the most influential equity groups in the state - California Rural Legal Assistance and Western Center on Law & Poverty. Initial supporters include major tech companies and business groups, and even a suburban city which was once sued over exclusionary housing policy. Imagine how big of a tent we could build if leaders and public officials got fully behind this repeal? Article 34 is impossible to defend except on ‘local control’ groups - more on that in a second - and would enable virtually all of the housing world to agree on something for once.
The repeal coalition can be the foundation for other 2022 compromises. With a crisis showing no signs of waning and a decent budget year projected, we may see other funding measures aiming for the same ballot, including the California Dream for All plan, which I will cover in my next newsletter. Imagine running a linked campaign to fund housing in different forms - from deeply subsidized supportive housing to affordable homeownership opportunities - alongside the campaign to remove Article 34. Leaders could show Californians that they are serious about both addressing the sins of the past, and making real investments that reduce the harms done by racist housing practices. Article 34 repeal is only limited in its impact if we only repeal - not if we repeal and fund together.
The coalition can be the gift that keeps on giving. The actual mechanics of running the campaign would bring groups and leaders together that rarely are on the same side of a policy issue, let alone in the same room. The money that could be raised would so far outstrip opponents that it would surely leave some left over for other campaigns - and more importantly a group of campaigners who built trust to win something important. A victory - or even just a serious campaign - could build momentum and relationships that will benefit so many other areas of progressive housing policy for years to come. This would be even more true if repeal is paired with a funding measure (#2), but we should not underestimate the positive feedback loop that would come from a serious repeal campaign.1
This is the best defense against a NIMBY ballot measure - whether it happens or not. On January 6th, the Southern California Association of Governments (SCAG) voted to support a ballot measure to radically undermine recent state housing legislation and give more ‘control’ to exclusionary local governments. The issue of local control is at the heart of Article 34. The one thing that makes repeal proponents nervous is that when the polls frame the issue as removing local control - Article 34 requires a public vote for some types of funding - the polling numbers are very close. (When it is framed around racism and affordable housing, it fares better). But rather than avoid the issue, the spectre of an anti-housing ballot measure and the repeated fights over these issues mean it is high time we had a deeper political conversation about local control. NIMBYs are making important inroads in communities of color, who are rightfully concerned about development and even more rightfully distrustful of the development system. If we allow the measure to go forward on its own, are housers really certain they have the support and votes to turn folks out just to vote against something that will sound good to many? With an Article 34 campaign, we can really surface the underlying racist and segregationist nature of the NIMBY movement, and give folks something - or some things - to vote for.
Article 34 is a threat and opportunity for the social housing movement. It’s been a brutal few years for many of us, but one of the areas that leaves me hopeful is the growing push for more public investment in housing. It comes in many forms - from Project Homekey’s previously unthinkable step of using public money to buy hotels and motels to the efforts to imagine a greater state role in housing development. The Assembly held a hearing on ‘social housing’, YIMBYs and equity advocates are finding common ground as PHIMBYs (Public Housing in My Backyard) and folks are talking and reading about different ways other countries manage the relationship between government, finance and development. Article 34 is part of the long and messed up history in the United States with regard to public investment in housing, and we’re now at an important turning point. Repealing Article 34 would potentially open up lots of creative avenues for innovative local governments, and not just the big cities. It can reduce the need for some of the dodgy practices that have emerged because the public housing nexus is so hard. And it can provide a political center for the growing chorus of housers - many younger and without the baggage of generations past - to help lead us into a healthier and smarter relationship between public money and people’s homes.
It’s the right thing to do. I know this will convince few people, but it has to be said, and it should be first on the list. The San Francisco Chronicle took a bold stance calling on California to truly live it’s purported values in the face of rising fascism, and this is an opportunity to do so. (The first draft of this essay was written on January 6th, which means something). We must continue the momentum to address historic wrongs, and not just through renaming places or trying to erase legally irrelevant racist convenants in our property deeds. Article 34 has real impact, and is a racist stain on our constitution. It has to go.
Article 34 resources and background reading:
An excellent 2019 Liam Dillon article in the Los Angeles Times
Two smart and well-researched 2018 pieces by Diego Aguilar-Canabal in The City Beacon - An overview and history of Article 34, and a deeper dive into Oakland’s role
A 2019 Louis Hansen piece in the San Jose Mercury News
CA YIMBY’s 1-pager on SCA2 and Article 34 repeal
The text of the bill itself, with easy links to leg analysis
Articles that need reading:
Super smart WaPo piece by one of the best researchers on Wall Street landlords, Desiree Fields. I’ll be writing more on this when I talk about the need to fix the larger real estate economy and industry, not just policy (#6 in my list).
An important NPR article on trailer parks and how public subsidies can often end up in the hand of eviction-minded owners. More on this when I talk about social housing and public finance.
I’m a huge Shelterforce fan - subscribe if you can. Here’s an important article on the pandemic v. great recession housing market.
Evictions are still a problem (and yes, more on that is coming).
Thanks to Stephen Menendian for this language and a great nudge.