Bottleneckers. William Mellor
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in a strongly worded text:
I can find no compelling public interest that is served by the establishment of new registration requirements for interior designers . . . nor in the bill’s effective “criminalization” of violations of such registration requirements. Indeed, it seems to me that the principal effect of [the bill] will be to restrain competition and limit new entrants into the occupation by requiring that they meet new educational and experience qualifications previously not necessary to practice their trade. . . . [This bill] is an example of government intrusion into the private marketplace, unnecessarily expanding the power and reach of a professional regulatory board (of which we have for too many already), and protecting the “ins” at the expense of would-be competitors. The marketplace already serves as an effective check on poor performance; designers doing inadequate work are more likely to be penalized by negative customer reaction than by a government agency trying to enforce arbitrary and subjective qualification standards.71
That same year, Colorado governor Bill Ritter vetoed a voluntary registration scheme for interior designers, concluding: “This regulation does not have a public safety element. . . . I believe that it is inappropriate to use powers of the state to provide the type of additional recognition provided for in [this bill].”72
As the veto messages and sunrise reports demonstrate, a common concern among policy makers is the relationship between licensing interior designers and protecting public health and safety. Like hair braiders, funeral directors, and every other brand of bottlenecker, interior designers portray their desired regulation as being in the interest of the public. When the Texas Association for Interior Design lobbied for its titling law, for example, the group’s president insisted that the regulation was a safety issue.73 And New York’s titling law was hailed as an official demonstration that the effects of the work of designers extended beyond aesthetics into public health and safety.74
But just as rank-and-file cosmetologists let slip the true motivations behind their desire to see hair braiding covered by cosmetology licensure, interior designers have revealed that the real reason behind the push for licensure of their industry is their desire for legitimacy and professional recognition.75 “There’s been a lack of credibility,” said a Manhattan interior designer who supported New York’s licensing bill. “A segment of the population still thinks of us as glorified shoppers.”76 Another New York designer said, “I think [regulation is] a very good thing. This will divide the real workers from the ‘social’ workers.”77 Similarly, after Washington, DC, adopted its practice act, a locally based designer concluded, “The impact of the practice act has been major for interior design in DC. It raised the level of acceptance and level of authority.”78
In 2006, the scope of that professional authority reached the high watermark of twenty-six states when Oklahoma adopted a titling law after twenty years of lobbying efforts.79 The official line was, again, that licensure was necessary to protect public health and safety,80 but, as in other campaigns, designers in this campaign revealed their true motivations. Kim Paddleford, who was then the president elect of the Oklahoma ASID chapter, noted the actual motivation behind titling, in her description of the desired result of the state’s universities enrolling seven hundred students in interior design programs: “We’re trying to keep our students that we educate in our state. We wanted legal recognition for the profession to encourage our students to stay.”81
Oklahoma’s law rewarded two decades of efforts by the interior design bottleneckers to fence off an ever-larger territory. By the early 2000s, ASID was dedicating significant resources to that quest. Its legislative activities were led by a full-time government and public affairs staff that included three lobbyists registered with the US House of Representatives and US Senate.82 At the federal level, ASID legislative staff campaigned aggressively before numerous agencies, pushing for additional legislation and advocating for professional legitimacy, but because licensing is chiefly a state issue, the society’s primary efforts were dedicated to spearheading the fight for new state laws.83
ASID’s legislative staff primed the pump for new state laws by actively educating members on legislation and encouraging participation in legislative efforts. The education included legislative strategies, legislative training sessions, quarterly newsletters and updates, and tools to lobby legislators.84 Staff members also wrote model legislation and provided day-to-day support for interior design legislative coalitions working in the states.85 And, like the bottleneckers of every industry, ASID spent millions of dollars to erect legislative fences around the occupation. By 2007, the society had donated more than $5 million to legislative efforts,86 and from 2010 to 2012, it added more than $650,000 to that total, all of which was dedicated to lobbying and legislative expenses and grants to state-level affiliates for the same.87
The effect was severe. In the early 1990s, only 36 percent of interior designers were subject to state regulations of one type or another. By 2007, that number stood at more than 60 percent.88 It was right about then that New Mexico interior designer Sherry Franzoy began to push back against the rising tide.
In 2006, Sherry was five years into her growing business, and New Mexico’s seventeen-year-old titling law was having its intended effect. She could advertise her work but not with the term “interior designer.” She was forced to find other words or phrases, such as “interior decorator.” Although the difference may seem one of mere semantics, the consequences were quite real. “Interior designer” was and remains the more common vernacular, helped along by popular design magazines and entire television networks. And if potential clients went to the phone book looking for interior designers, they would not, by law, find Sherry there.
So in September 2006, Sherry sued the state of New Mexico, arguing that the titling law violated her First Amendment right to tell others truthfully what she did for a living. The approach was unique, particularly compared to other lawsuits concerning licensing laws. In the context of economic liberty, courts frequently prove overly deferential to other branches of government and the regulations they create, resulting in, among other nonsensical rules, the requirement to earn a funeral director’s license to sell caskets. But this is not so in the context of freedom of speech. In cases where the latter is alleged to be infringed upon, courts scrutinize laws much more closely, requiring governments to provide sufficient justification and evidence of the need for a law before regulating citizens’ speech. Because New Mexico regulated what interior designers could say rather than what they could do—that is, it had a titling law, not a practice act—Sherry could sue the state under the First Amendment, thereby triggering greater scrutiny by the court.
The distinction was not lost on the state’s interior design board or legislators. Facing a real possibility that their regulation would be thrown out entirely by the court, state leaders moved quickly to reduce their law’s restrictiveness in order to preserve its existence. In January 2007, a bill was introduced in the state legislature to change the titling law so that it restricted the use of the title “licensed interior designer” to those who completed the mandatory requirements and allowed anyone to use the broader term “interior designer.”
On the heels of the bill’s introduction came a fiscal note. In many state legislatures, representatives or senators can request an analysis of the estimated fiscal effect of proposed legislation. The resulting report is called a fiscal note, the results of which often proves decisive in a bill’s fate.89 Although such analyses focus primarily on budgetary matters, they can sometimes include nonfiscal issues. This was precisely the case with Sherry’s case in New Mexico.
After identifying no fiscal impact from the bill, the fiscal note observed that “the Interior Design Act is open for constitutional challenge and could ultimately be determined unconstitutional and therefore invalid.” It consequently recommended that “to avoid litigation on the constitutionality of the Interior Design Act, the term Interior Designer needs to be defined as a ‘licensed interior designer.’”90 The bill subsequently sailed through the legislature, with unanimous votes in four separate committees, approval by both chambers, and Governor Richardson’s signature on April 3, 2007. Although not a complete repeal of the regulation, the change significantly