Tenants’ Right to Counsel has Anti-Property Origins

By Peter Vickery, Esq., Legislative Affairs Counsel

Tenant advocates in Massachusetts are preparing to campaign for the “Right to Counsel,” which would provide state-funded lawyers in eviction hearings. On its face, right to counsel would sound like a fair idea, if it applied to tenants and landlords alike. Homelessness or bankruptcy may be just one procedural error away. Before signing on to this proposal, let us consider what the originators of the idea have said and done.

New York Advocates Seek to Stop Evictions. Period.

Right to Counsel has passed in New York, and it benefits renters only, not landlords.

The name “Right to Counsel” is a misnomer, of course, because tenants and landlords already have the right to counsel. What the advocates mean here is the right to free counsel, i.e. attorneys paid with tax dollars.

The express goal of the Right to Counsel NYC Coalition was not adherence to the rule of law or equal protection. Please note, their publicly-stated goal was to stop evictions, period.

The coalition’s website declares: “Evictions are about power. Evictions are about race and class.”

Well, what isn’t nowadays? According to postmodernist ideology, everything is about power, race, and class. The fact that so many of the rental-property owners in MassLandlords are Black, Latino, Asian, immigrant, gay, and other minorities, all doing their level best to make an honest living by providing housing, does not fit neatly into this rigid worldview, of course.

If evictions were simply the expression of unearned racial and class power, there would be no compelling reason to treat property owners fairly. To redress what they perceive as an inherent power imbalance, advocates want to strip you of your right to the equal protection of the laws. Then they would take away your property all together.

If this sounds like unbelievably paranoid, reds-under-the-bed scare-mongering, read on.

Proposition F and Democratic Socialists of America

In San Francisco, the 2018 ballot measure to create the right to taxpayer-funded anti-eviction lawyers was called Proposition F. Before the election, the City’s Office of the Controller estimated the annual cost of Proposition F at somewhere in the range of $4.2-5.6 million. Nevertheless, it passed comfortably with 56% of the votes. One group in particular, DSA, claims credit for the victory:

“The proponent, staff, volunteer core, and primary funders of the Yes on F campaign are all DSA members, and the chapter made winning right to counsel its major priority.”

DSA stands for Democratic Socialists of America.

The San Francisco chapter of the Democratic Socialists of America won the fight for taxpayer-funded anti-landlord lawyers, and now the state chapter, with the support of the national party, is working to re-introduce rent control across California.

The socialists make no secret of the fact that measures like right to counsel and rent control are steps along the path leading to the abolition of private property:

“Our ultimate and transformative goal is to take housing off the speculative market altogether, bringing land under the democratic control of those who live on it.”
The Housing Working Group of the San Francisco DSA exists to “push anti-speculative and pro-tenant initiatives that work toward our long-term goal of 100% social, democratically planned housing.”

The most ardent advocates of right to counsel intend to expropriate your property and destroy the rental-housing market.

Right to Counsel in Massachusetts Housing

In tandem with their campaign for tenants right of first refusal, which would stop people from selling their own property without their tenants’ permission, tenant advocates in Massachusetts are now promoting this “Right to Counsel.”

They want taxpayer-funded lawyers in order to stop evictions, and they are gaining ground.

Boston’s Mayor Walsh endorsed, and Senator Sal DiDomenico and 19 other legislators co-sponsored, a Right to Counsel bill titled, “An act promoting homelessness prevention in Massachusetts.”

The bill aimed to establish the right to taxpayer-funded lawyers for tenants, not just in the state capital, but across the whole Commonwealth.

The Right to Counsel would be available to tenants receiving public assistance (e.g. Aid to Families with Dependent Children, food stamps, refugee resettlement benefits), or those for whom the payment of court fees could deprive them of the ability to afford, among other things, shelter. In the case of an eviction for nonpayment, this could be construed to mean every tenant.

Along with several other bills with similar provisions, Right to Counsel was sent to study last session, the legislative equivalent of an induced coma (S831, H968, H3589). But it will be revived next session, have no doubt. Its proponents are ideologically driven and well organized.

Many of us see ourselves as reasonable people and tend to assume that our opponents across the aisle are reasonable too; reasonable but naïve. Underneath the labels and the slogans, we assume that people on both sides of any given landlord-tenant issue are basically looking for the same thing, a fair system that generally – to the greatest extent that institutions made by flawed, fallible humans ever can – will produce justice in accordance with the rule of law.

This is our working assumption. But assumptions, like bombs and strawberry shortcake, are dangerous things to make, to paraphrase Lemony Snicket.

Sometimes people are seeking not justice but power. And sometimes they have the candor to tell us.

To those of us who know that private property is the essential ingredient for a free society, it is difficult to believe that some (not all) of the people who are pushing for housing “reforms” in the name of equity and justice are, in fact, hell-bent on its destruction. We say, “The point of evictions is not racist or classist oppression, but simply to regain possession of our property so that we can lease it to somebody who will pay the rent.”

To the Democratic Socialists of America, property is itself the problem, a roadblock on the path to the proletarian paradise. They want the private-sector landlords to fail because market failure demands government intervention. They want “100% social, democratically planned housing.” Their goal is not a mixed economy, with some privately-owned housing and some owned by the government. No, the percentage of housing they intend to leave in private hands is precisely zero.

This is why tenant right of first refusal and right to counsel are supported simultaneously. In a recent Cambridge hearing, they were used to obstruct reasonable market measures like zoning reform.

Right to Counsel Consequences

Often at MassLandlords our first response to the policies that the tenants’ advocates promote is to highlight the burden on the state economy. Largely because of unfunded pension liabilities and other post-employment benefits for public employees (13% of the Massachusetts workforce) our State ranks 47th out of 50 for fiscal health, just above Connecticut, Illinois, Kentucky, and New Jersey. So, we would point out, the Commonwealth cannot afford yet another publicly-funded program.

Then we would say that any new benefit to help indigent renters ought to be granted to property owners as well, especially if they are underwater on their mortgage, or unable to afford repairs, or unprepared for the rigors of landlording.

Finally, we would point out that if lawmakers keep making it harder for owners to stay in the rental-property business, eventually there will not be any private-sector landlords left. Renters will be completely reliant on government for their housing. We would refer to this as an unintended consequence.

It is time to admit -- in light of New York, San Francisco, and the unequivocal statements of the Democratic Socialists of America --  that there is nothing unintended about it.