Berkeley Rejects Sitting Prohibition and the San Francisco Model

PNNscholar1 - Posted on 27 November 2012

(Editor's note: This article is reprinted from the November issue of the San Francisco Street Sheet, courtesy Bob Offer Westort.  Photo taken by Golden Gate X Press)


After more than a week of counting, the final vote was tallied a little before 7:30 p.m. on November 15: Measure S—a proposed law that would have made it a crime to sit on the sidewalk—had failed. The sitting prohibition lost by 4.6%—a greater margin than Barack Obama’s reelection.


The No on S victory is a notable upset both for the national trend of homeless criminalization laws and for development and commercial real estate interests in Berkeley. Since 1993, “sit/lie” laws—laws that make it a crime for people to sit or lie down on public sidewalks—have been spreading around the country, particularly intensely on the West Coast and in Florida. While the laws nominally apply universally, universal enforcement is never the actual intention: Sit/lie laws are a law plus a wink and a nudge. Everyone knows that the intent is that they be enforced exclusively to “shoo homeless people” out of public places, as the Downtown Berkeley Association’s John Caner put it.


San Francisco passed such a law in 2010 through Proposition L. Aside a short period of such laws in the 1960s (the most notable cases being San Francisco and Los Angeles—the former of which was repealed after several successful constitutional challenges, the latter of which remains on the books but which has had enforcement curtailed as a result of the settlement of a constitutional challenge), the Patient X for these laws is Seattle, which passed the first of the current batch of sit/lie laws in 1993. Since then, nearly three dozen cities have passed such laws. What makes Berkeley different?


The lazy answer—and Bay Area print journalism has already shown characteristic interest in the lazy answer—is that Berkeley is simply perversely weird. But that explanation doesn’t cut the mustard: Berkeley and San Francisco are unique in the two-decade history of these laws in that they are the only two cities to have considered sit/lie laws at the ballot, and that both have done so twice. Berkeley, in fact, passed a sit/lie laws in 1994, only to have it repealed through a constitutional challenge. San Francisco rejected a nearly identical law the same year. One would be hard-pressed to argue that Berkeley has become less conservative than it was in 1994, or that San Francisco has become more conservative in the past two decades than Berkeley has.


The victory is even more surprising given the shape of the campaign to pass Measure S: Proponents spent roughly $120,000 on the campaign—more than was spent on any other campaign this year (including that for mayor), and likely more than has ever been spent on any other campaign in Berkeley history. (I have not checked all campaign records since Berkeley’s 1878 founding, but have yet to find any campaigns that spent much more than half as much money in the past decade.) 86% of this money came from corporations or limited liability companies.


For understanding why corporations would spend so much money on a law like this, San Francisco provides an instructive example—perhaps the only instructive example. In 2010, real estate and finance corporations provided roughly $412,000 in funding to pass this city’s Proposition L. The largest backer, Ron Conway, told business leaders that this was part of an effort to “take San Francisco back” from progressives. In conservative states, undocumented migrant workers and queer people are a convenient scapegoat for economic or social ills, and conservatives very effectively use popular prejudices against these people as a wedge issue to elect candidates whose values are otherwise more conservative than their constituencies’. In the Bay Area, we are fortunate that it is far more difficult to electorally target queers and undocumented people. (Queer people and migrant workers are definitely oppressed in San Francisco and Berkeley, and people in these communities can certainly think of examples of scapegoating, but I think it’s true that we have for the most part been spared the worst excesses of the rest of the country, and that these scapegoating efforts have rarely made it to the ballot.)


In the past fifteen years, conservatives have struck on an alternative scapegoat for San Francisco: Homeless people. In election after election, San Francisco voters have been asked to pass punitive measures against homeless people (often as part of a combined package that included some benefits, so as to ease consciences, sometimes with the argument that these punitive measures would actually help homeless people). In many cases—including 2010’s Proposition L—the law passed has been one that did not actually need voter approval: it could have been passed by the legislature. But other things do need voter approval. A wedge issue on the ballot which has helped to distinguish conservative candidates has had a noticeable effect on the composition of the Board of Supervisors, and arguably has been a determining factor in recent years for the mayoralty.


In Berkeley, similarly, conservatives have no chance if they are not supportive of the most basic rights for queer people or people without documentation. In the past two months, Berkeley has passed the nation’s first Bisexual Pride Day and has instructed the Berkeley Police Department to end its association with Secure Communities. So conservatives attempted to adopt the San Francisco model, using frustration with homelessness in the city as a wedge issue to affect rent control and development.


Berkeley’s City Council could have chosen to pass a sitting prohibition (over the objections of progressive City Councilmembers Max Anderson, Jesse Arreguín, and Kriss Worthington), but chose instead to place the matter on the ballot. The same funders who backed Measure S were also heavily involved in two other races as primary funders: A conservative Rent Stabilization Board slate that was involved with organizations such as the Berkeley Property Owners Association that have advocated for the end of rent control, and Measure T, a development giveaway for West Berkeley that was opposed by most residents of that neighborhood. Measure S provided a convenient wedge issue for the one, and obscured the other. As Berkeley formerly homeless activist Dan McMullan put it, “They bet that the people of Berkeley, in the privacy of the voting booth, would be mean enough to kick our poorest community members while they were down.” And they thought that the malice accompanying that kick would carry far enough to make more selfish, less reasonable decisions prevail on other electoral matters.


But outspending wasn’t the only tack that the corporate backers of Measure S took: The campaign to pass Measure S included a mailer that failed to mention what the law would actually do (make it a crime to sit on sidewalks), and claimed instead that the law would keep people out of jails, help them into services, and “provide hope for those on our streets who are hopeless. It comes down to saving lives.” In a desperate last-ditch move, proponents of Measure S hired homeless people (largely from Oakland, who were unfamiliar with the issue) to hold Obama signs and hand out misleading fake Democratic Party Voter Guides that endorsed the measure. The Democratic Party took no stance on Measure S. In fact, five out of the six endorsing Democratic clubs opposed the measure. (The sixth had on its board one of the leaders of the Yes on Measure S campaign.)


But big money failed. Measure S has been defeated. Measure T is trailing by less, but it, too, seems unlikely to pass. While the conservatives were able to get one member elected to the Rent Stabilization Board, the other three seats up for election have all gone to defenders of rent control and vocal opponents of both Measure S and T.


Why didn’t the San Francisco model work in Berkeley? I have been heavily involved in homeless community organizing in San Francisco for seven years, and worked against Measure S in Berkeley. I suspect that the answer is twofold.


The first is that the campaign against Measure S learned from San Francisco. We held numerous fun and engaging actions, much as happened in this city. But we didn’t depend exclusively on that kind of “earned media”: The media infrastructure of Berkeley is likely too weak for such tactics to have an adequate impact. We also engaged in traditional, grassroots campaigning, knocking on doors and talking with Berkeleyans about homelessness, about Measure S, and about real solutions for the city. Over the course of two months, we estimate that we were able to talk with about 10% of the Berkeley electorate. Money can buy print space, Web banners, and airtime. But it can’t buy personal convictions or face-to-face conversations. When those of us who believe in civil liberties, compassion, and pragmatic solutions to social problems talk with our neighbors, we win. The numerous volunteers—both homeless and housed—who created these brilliant events and who knocked on doors every single weekend and many week nights were able to defeat the tens of thousands of dollars sunk into this campaign by the East Bay’s largest developers. Many of these volunteers were from groups that have been involved in homeless people’s struggles in the long term—most notably the East Bay Community Law Center, the Homeless Action Center, Building Opportunities for Self-Sufficiency, and the POOR News Network. But dozens more were simply concerned community members who saw a social wrong, and knew that they could do something to right it.


The second is the shape of Berkeley progressivism. In San Francisco, the community was tremendously supportive. The Coalition on Homelessness, the Day Labor Program (then of La Raza Centro Legal, now part of Dolores Street Community Services), and HAVOQ/Pride at Work played a central role in the organizing against Prop L, but we also benefited from tremendous support from organized labor and housing advocates. However, there were also progressives who were shy of the issue: I recall a conversation with one candidate who told me that they opposed Proposition L, but couldn’t do so openly: “I have my constituency to think about. They’d eat me alive.” Another endorsing organization printed two versions of its endorsement guide: one that opposed Prop L for areas where they thought the proposal would be unpopular, and another that didn’t mention the issue. Progressive community support against Prop L was phenomenal, but not complete. Berkeley saw a more nearly total level of committed support from the progressive community. The candidates against whom Measure S was intended to be used as a wedge issue didn’t shy away from it: Rent Stabilization Board Commissioner Igor Tregub spoke vocally and passionately against Measure S; Commissioner Asa Dodsworth organized a rollicking Black-Tie Sit/Lie Chess Championship; Commissioner-Elect Alejandro Soto-Vigil knocked on doors and spoke about Measure S when he spoke about his own candidacy; Danfeng Koon, who organized both the progressive Rent Stabilization Board slate and the Kriss Worthington for Mayor campaigns instructed her volunteers to walk No on Measure S lit at the same time that they walked the literature for those two campaigns: Without that effort, No on S literature would have reached tens of thousands of fewer Berkeleyans than it did. City Councilmember Max Anderson, whose challenger was a supporter of Measure S, also didn’t shy away from the issue, and was perhaps the measure’s most eloquent opponent. Even candidates and campaigns who were not targets of the wedge issue campaigned hard against S: Every challenging mayoral candidate—most notably City Councilmember Kriss Worthington—spoke openly against Measure S. Mayoral candidate Jacquelyn McCormick, who differed from other progressives on several issues, also took a principled stand against S, and started a Community Campaign Center on University Avenue that allowed for an unprecedented level of coordination, beneficial to numerous grassroots campaigns.


There’s a lesson in this for San Francisco: Here, we have too often followed the lead of the nervous national Democratic Party leadership, and have backed away from controversial wedge issues. The grassroots core of San Francisco progressivism has been heartfelt and devoted to real, compassionate solutions to homelessness and the defense of poor people’s civil liberties, but too much of our political leadership has let electoral concerns outweigh our consciences. Ironically, as Berkeley has shown us, it is precisely that shyness of conviction that has kept us pinned to this recurring wedge issue. It is our fear that has allowed the San Francisco model to be effective. In San Francisco, the San Francisco model of homelessness as a wedge issue will end when there is a progressive consensus that it can no longer be allowed to work.


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