Occupational Licensing

Libertarian State Senator Wants to Make it Easier for People With Criminal Records (And Everyone Else) to Work

Laura Ebke's attempt to rationalize Nebraska's occupational licensing laws gets praised in The Wall Street Journal.


Laura Ebke of Nebraska is the Libertarian Party's only sitting state senator. A bill she introduced to reform her state's occupational licensing regime got an enthusiastic and lengthy write-up this week in The Wall Street Journal (without, alas, naming the senator or her party affiliation).

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The Occupational Board Reform Act (L.B. 299) would change the incentive structure and process by which Nebraska decides the most rational and least restrictive way to ensure consumer safety without unduly harming people's ability to work.

The state has been interested in "chipping away at occupational licenses one by one" for a while, Ebke said in a phone interview yesterday. (For example, last year the state eliminated licensing requirements for hair braiders.) Then last year she "was approached by the Institute for Justice to see if I would be interested in carrying some model legislation they had put together, and I was very interested."

One of the more colorful case studies, described in the Journal story, involves massaging horses, which leaves you open in Nebraska to a possible four years in jail and a $35,000 fine if you do it unlicensed. That issue, Ebke says, has been "under control of the veterinarians medical licensure," who had lobbying power. Ebke saw it as a teachable moment: "Does it make sense," she asked her colleagues, "to demand a license to give a rubdown to a 1,200-pound creature?"

The final vote on the measure is expected next week, and Ebke is confident it will make it to the governor's desk and be signed. One of her main allies in the process is a Nebraska-based free market think tank, the Platte Institute, founded by the sitting governor Pete Ricketts.

A Platte Institute study found that "Many of Nebraska's licensing requirements are more burdensome than its neighboring states and the rest of the country, making it harder to create many higher-wage jobs in Nebraska. Nearly 25 percent of the jobs in Nebraska require a government license. Even if a particular worker does not need government permission to do their job, many of the services they depend on in their daily life may be more expensive or less accessible because of Nebraska's unnecessary barriers for workers and entrepreneurs."

Being a Libertarian, Ebke says, has likely helped the bill's so-far positive prospects. "Most of the co-sponsors are Republicans," she says, but "the fact that I'm not a Republican allows some of the more liberal members of the body to come and talk to me." She says she's found such members willing to work on getting the bill into a shape that they can support, "and their willingness to do so speaks to the fact that a lot of times I have been with them" on issues where Republicans were not.

Ebke is also proud that the state branch of the American Civil Liberties Union has been an enthusiastic proponent of the bill, largely because of how it deals with how difficult current occupational licensing laws can make it for those with criminal records to find meaningful work.

The law as written would allow someone with a criminal record to "petition the appropriate occupational board at any time, including prior to obtaining required education or paying any fee, for a determination as to whether the individual's criminal history would disqualify the individual from obtaining an occupational license." Right now many Nebraskans with a record waste time and money seeking a certification they will never get.

Also under the bill,

an individual's criminal history would disqualify the individual only if: (a) The individual has a felony conviction; (b) The felony conviction is expressly listed as a disqualifying offense in the statutes governing occupational licensure by the occupational board; and (c) The occupational board concludes that the state has an important interest in protecting public safety that is superior to the individual's right to pursue an occupation. The occupational board may come to this conclusion only if it determines, by clear and convincing evidence at the time of the petition, that (i) the specific offense for which the individual was convicted is substantially related to the state's interest, (ii) based on the nature of the specific offense for which the 1individual was convicted and the individual's circumstances at the time of the petition, the individual is more likely to re-offend by virtue of having the license than if the individual did not have the license, and (iii) another offense by the individual will cause greater harm than it would if the individual did not have the license.

As the Journal notes, "Recidivism rates are lower in states where former criminals can find gainful employment."

Six pages of Ebke's bill are spent listing 172 distinct occupations regulated by its existing occupational regulations, which as the Journal notes includes "63 lower-income occupations that are the labor force entryway for the poor and least skilled." Ebke's bill would, the paper reports, allow "the state [to] use alternatives like periodic inspections to guarantee clean and safe hair salons and barber shops. That would spare cosmetologists and barbers some 16 months of training" and in general allow "Legislative committees [to] review 20% of existing licensing requirements annually [and] consider whether a license is really necessary, whether the training requirements are overly burdensome, and whether the certification is abused to exclude competition."

Since Nebraska state senators are term-limited after eight years, Ebke believes the 20 percent review every year will help "new members realize what their committees have jurisdiction over." She has found that many senators don't even know what legacy regulations still clog the state's laws "until some special interest comes to you."

Now they'll be required to rethink the sense of occupational regulations more regularly. "It's really a process bill, but it has the potential to require legislators to look more objectively at all the licenses in our state"—and would require them to start regulating occupations in the least restrictive way, with full licensing a last resort. She hoped initially to get legislators and their staffs entirely insulated from the process, via a separate office of occupational licensing review, but "the money wasn't there to create a new office."

In arguing for the bill, Ebke has found that some citizens are "very protectionist and want to protect their [existing] licenses," but many Nebraskans are excited for a chance to do meaningful productive work without jumping through unnecessary and expensive hoops.