You need two legs to govern

Why getting stuff done requires more than just changing what’s written down on paper

In 2017, California passed SB35. The bill, introduced by senator Scott Wiener ten days after being sworn into the chamber, was meant to tackle the state’s housing shortage by beefing up the state regulatory framework where localities had to present plans to allow a certain amount of housing to get build within a set period (known as the RHNA process) or else the state would curtail their power to reject housing permits and control their own zoning in certain cases (known as the builder’s remedy).

In 1936, The Union of Soviet Socialist Republics adopted a new constitution, signed by Communist Party General Secretary Joseph Stalin. Article 125 of this constitution guaranteed all citizens the rights of speech, press, and assembly. In the years after the adoption of this constitution, the Soviet authorities would honor their citizens rights to speech and assembly by embarking upon The Great Purge, in which up to a million people were executed or left to die in the Gulag for crimes such as writing about the plight of Soviet Jews, being an unemployed poet, supporting Karl Radek, opposing Karl Radek, or being Karl Radek.

What does the 1936 Soviet Constitution have to do with housing policy? Basically nothing on the surface. But for those interested in making it easier to build anything, from housing, to energy, to transportation infrastructure, the Soviet Constitution holds a key lesson that the words we write down in laws are only as strong as the willingness of those in power to act.

If you have been paying any attention to the housing situation in California since the adoption of SB35 2017, you’ll notice that the state has failed miserably at permitting, much less completing, the amount of housing estimated to be necessary by the state in order to meet the needs of its population.

Why is there such a huge gap between the desires of lawmakers and the facts on the ground? Certainly it is not for lack of enthusiasm for making laws incentivizing the permitting of housing. Since 2017, 33 bills sponsored by California YIMBY, a state-wide pro-housing pressure group, have been signed into law. These bills have sought to reduce bureaucratic overreach, streamline permitting, provide funding, and take many other approaches to make it cheaper and easier to build housing of all types, at all income levels.

So why haven’t these bills worked? Without disregarding macro factors such as interest rates and changes cost of materials, it is because a lot of people don’t want housing to get built.

Whatever the legislature professes to want via their lawmaking, there are many other actors in our system that can and do put up roadblocks to permitting and construction. Many of these are actors external to the political system making use of legal powers granted by statute or judicial fiat. Take the aggravated Berkeley neighbors that used California’s environmental protection regime to sue UC Berkeley into not building student housing on the grounds that noisy college students constitute a form of environmental pollution. You also have non-profits like the Sierra Club, that sue to stop projects that they consider environmentally harmful. In both these cases the stated goals of the government, building more housing, are being thwarted by non-government actors.

But it’s not just actors outside the government that stymie California’s professed goals of building more housing. Cities and localities are notorious for finding ways to deny construction permits or else make building anything a massive headache. Everything from the San Francisco Board of Supervisors rejecting a housing development on a Nordstrom Parking lot, on either environmental or gentrification grounds depending on when you asked, to Atherton imposing such brutal lot size and maximum structural coverage requirements on homes that you can see the city’s borders from space. If a local government doesn’t want to let things get built, they will try to find any excuse to say no, even if it involves declaring their entire territory as a mountain lion sanctuary to avoid permitting duplexes.

These sorts of entities are an obstacle to a government’s stated goal, but there are at least ways around them. If they try to say no using powers granted to them by the state, then the easy answer is to take those powers granted to them by the state. This was the case in the UC Berkeley housing debacle, where state lawmakers responded to a judicial decision that state environmental law mandated housing developers to study the impact of student noise with a bill amending said law to make it clear that such studies are not mandated. The nice thing about giving people the power to say no is that you can take that power away.

But what about when you want to get someone to say yes? Arguably this is the root of the failure of the SB35 RHNA regime. It tries to incentivize localities to say yes to housing by brandishing a stick in the form of stripping them of their powers to say no. But who wields that stick and what happens when they refuse to swing it? In the case of SB35, the stick wielder in question is the state’s department of Housing and Community Development (HCD). This department is tasked with evaluating local permitting plans and deeming them in or out of compliance with their legal obligations. If they are found to be non-compliant, they lose their power of zoning and permitting¹. The problem is that HCD has been approving housing elements even in cases where it really seems like they shouldn’t. The examples are too numerous, and too often technical, to list. But one example of note is HCD’s approval of Sausalito’s housing element in which many of the parcels slated for building were literally underwater

This conundrum is illustrative of a problem with democratic governance, both democratic as in the capital D Democratic Party and the lower-case d democratic political philosophy. To achieve a policy aim in a democratic society, you need laws in place that authorize the exercise of coercive power as people in power who believe in the political project embodied by those laws. Governance is fundamentally a two-legged proposition. Knock out one leg and you hobble the whole project.

Returning to the initial example of the USSR. The USSR didn’t have a lack of free speech because that right wasn’t sufficiently spelled out in the constitution. The problem was that those in positions of authority saw their mission as advancing the communist revolution, however they interpreted it. When the speech of citizens was deemed to be an impediment to that goal, their speech was curtailed, by intimidation, by imprisonment, or by firing squad.

This is, in a way, analogous to the situation of the California housing crunch and the HCD. Even though they have the authority to force localities to build more housing by rejecting their housing elements, the regulators in Sacramento don’t see it as a core part of the political project of the HCD to aggressively force localities to build their legally mandated housing, just as the Soviet authorities didn’t see it as a core part of their political project to enable Soviet citizens to speak and associate freely.

What is to be done?

There are a few different, and not mutually exclusive approaches that can be taken to the issue of Californian housing underproduction. Elected officials at the state level can take the Lyndon Johnson approach to wrangling the bureaucracy, leaning on regulators via non-formal channels to push them to get localities permit more housing, punish clear violations of the law, and make it clear that one of their core goals is to get as much housing built as possible, rather than allowing skirting as the norm. They can also pass laws stripping power from localities and individual litigants to tie up projects with endless process and lawsuits, as has been done in an all-too-tepid fashion with recent CEQA reforms and SB35.

On the local level, where there are officials who stand in the way of this, efforts should be made to either get them on board with more building, or else to replace them with officials who are interested in meeting their obligations to make sure that housing is abundant.

All this of course is easier said than done and requires the presence of a political movement that is capable of swaying votes both in city halls and ballot boxes. You need volunteers that are ready and willing to knock on doors come election season, constituents who are willing to hold electeds feet to the fire on tough issues, donors with the financial resources to support allied candidates, and a network of investigators who can research & explain the details of various policy fights to the general public.

That or just lots of gulags.

1. in certain cases and subject to so many caveats that it becomes much less effective at enabling building than one would hope