The Thicket at State Legislatures

State Hard Pressed to Address Drugged Driving

by Alex Fitzsimmons

Everyone knows the dangers of drunk driving and every state in the country sets blood alcohol level limits. But state lawmakers have recently turned their attention to another deadly behavior:  drugged driving.

Colorado became the latest state to debate drugged driving, as the House voted last week on whether to set a limit of 5 nanograms of THC (the psychoactive ingredient in marijuana) per millimeter of blood. The bill fell one vote short of advancing in the Senate, failing on a 17-17 tie.

More than 30 million people drove drunk and more than 10 million drove drugged in 2009, according to government data. While there is a nationwide standard of .08 g/ml blood alcohol concentration, states like Colorado are finding that regulating drugged driving is a much trickier endeavor.

Determining the point at which a driver is sufficiently impaired so as to pose a risk to society is no easy task not only for states, but also for the scientific community. States have taken a variety of approaches to address impairment levels. More than 30 bills related to drugged driving have been introduced in state legislatures this year, according to NCSL’s Drugged Driving LegisBrief. At NCSL’s 2011 Legislative Summit, state lawmakers explored the challenges of crafting drugged driving legislation.

Seventeen states have passed “per se” laws that make it illegal for drivers to have any prohibited drug in their systems while driving. In these states, the mere presence of drugs in the body is illegal. But not all of these blanket bans are created equal:  Minnesota, for example, exempts marijuana.

Other states address impairment levels with laws that set a blood content threshold. Ohio and Nevada established a threshold of 2 nanograms of illegal substances, while Pennsylvania’s administrative rule sets the level at 5 nanograms.

At the federal level, Congress is considering legislation to fund research on new driving technologies and training for police officers to identify drugged drivers.

What Role will Independent PACs Play in State Legislative Races?

by Karl Kurtz

During a television interview on a California public affairs program recently, I was asked a question I was not prepared for and had not thought much about: How will the Citizens United Supreme Court decision affect state legislative races? This was a reference to the so-called super Political Action Committees (PACs), not tied to candidates and not subject to fundraising or expenditure limits, that are receiving so much attention in the presidential race and other federal elections.

Instead of saying I didn't know, which is what I should have done, I ventured that I thought that state legislative races are so far down the ballot that the likelihood was small that independent PACs would pay attention to them--with the possible exception of highly targeted races in California, the home of the most expensive state legislative campaigns.

Some Internet research provides some support for my guess but mostly shows that we don't really know at this stage of the campaign. The Columbia Journalism Review has an interesting article, "Super PACs at the State Legislative Level: A Different Story," that is based on a report earlier this year by the National Institute for Money in Politics. That report shows the potential for substantial independent PAC involvement in state races by documenting the fact that donors who gave $25,000 or more to Super PACs in 2011 also donated $36.8 million to state campaigns during the 2008-2010 elections.

The report cautions, though, that "the role Super PACs play in state elections cannot be known until nearer the 2012 elections." Part of the problem is state reporting requirements, the Institute's Edwin Bender told CJR:

2012 State Legislative Election Preview and Other Tidbits from State Net

by Karl Kurtz

State Net's ever-useful Capitol Journal last week carried an update by Lou Cannon of potential party-switching legislative chambers in this fall's elections--based at least partially on his conversations with NCSL's Tim Storey--and a couple of other interesting items.

Cannon's list of vulnerable chambers under Republican control includes the Colorado House, the Maine House and Senate, the New Hampshire House ("an outside chance"), the New York Senate and the Wisconsin Senate. In the case of the Wisconsin Senate, the chamber is currently tied with one vacancy. The tie will be resolved on June 5 when four Republican senators face recall elections, and the one vacancy will be filled. Although Cannon doesn't say this, it's possible that the Democrats could take control on June 5 only to lose it in November when senators have to run in newly drawn districts.

The chambers that could switch from D to R include the Arkansas House and Senate, the New Mexico House (erroneously identified as the Senate in the article) and the Iowa and Nevada senates. Tim and I would add the Oregon Senate and the Minnesota House--and possibly the Senate--to that list.

Also missing from Capitol Journal's list of chambers that could switch are two tied chambers: the Alaska Senate and the Oregon House.

The same issue of Capitol Journal reports on primary defeats of two incumbents in Oregon. Republican Sen. Chris Telford was defeated by a former House member, Tim Knopp. In the House, challenger Jeff Reardon defeated Democratic Rep. Mike Schaufler. In both races at least a few incumbent legislators supported the challengers over their colleagues from the same party.

Finally, Capitol Journal calls attention to an op ed article that appeared in the Wall Street Journal last week in which two Republican members of Congress' Joint Economic Committee, Rep. Kevin Brady (Texas) and Sen. Jim DeMint (South Carolina), likened the financial management of the states of California, Illinois and Michigan to that of Greece and praised New Jersey, Rhode Island, Utah and Wisconsin for pursuing Germany's "model of fiscal prudence."

"States that have followed Europe's economic policy model of unbridled spending are getting Europe's economic results: low growth and looming fiscal catastrophe," the two Republicans wrote. "Congress must — in word and if necessary in law — make plain that the taxpayers will not protect these states from the consequences of their policies."

They did not suggest, however, that any states would have to leave the dollar zone and switch to the drachma.

The American Democracy Game

by Jan Goehring

Students can now step into the shoes of a lawmaker through NCSL's new online learning tool called The American Democracy Game. This interactive game, just released in 2012, teaches young people in middle school about the legislative process. The game allows the player to become a legislator and participate in the lawmaking process, learning basic lessons about how people disagree on issues and how those disagreements are resolved through debate, negotiation and compromise. Each of the three levels is designed to be played by an individual or in a classroom period. Issues include a community dog park, mandatory after-school exercise and the voting age. Supporting discussion guides and features that allow teachers to track student progress and provide NCSL feedback complement it.

The game is a product of NCSL's Trust for Representative Democracy and d'Vinci Interactive.

Play it today and test your skills.

It’s the Message that Matters Most

Telling your state legislator how you feel about a bill might be more effective than filling out a form. 

by Meagan Dorsch

Growing up, my mother used to say, “Just tell me how you feel.” This usually allowed us to explain why we were frustrated, angry, concerned or excited. She might have been onto something.

A recent story in the Florida Current shows that lawmakers and staff respond more to personal stories about how a law will affect constituents, rather than form letters or blanket emails.

Kevin Cate, a governmental public relations and campaign adviser in Florida, surveyed 52 House and Senate aides at the Florida Legislature and asked what “influences their bosses the most.” Cate noted face-to-face visits were cited by more than 99 percent of the staffers, followed by personal letters and personalized emails. It is also interesting to note that phone calls and visits by interest groups both ranked higher in Cate’s study than “visits by lobbyists.”

Four out of five staffers indicated that a personal story about how a bill would affect constituents was the most effective, followed by stories regarding the effect of legislation on a legislator's district.

NCSL has found more than 575 state legislators on Twitter, and Cate noted the power of social and new media. About two-thirds of the legislative staff surveyed in Florida noted that “comments on social media sites” were important, and that lawmakers used Facebook to gauge the public’s opinion online. They also use these sites to gather information. More than half of Florida's legislative staff rated Facebook and Twitter as either "effective" or "very effective."

Cate makes an important note in his study: The message you send is more important than the medium. But does this apply only to Florida's Legislature? The poll below contains some of the top advocacy strategies from Cate's study. Let us know what works best in your state.

What is the best way to communicate with state legislators?

In person

Individual Letter

Comment on Social Media

Email

or View Results

Create your own poll at Flisti.com

Acronym Acrobatics

by Caitlin Rossiter

I drove to NCSL this beautiful AM and listened to an NPR analysis of the SCOTUS oral arguments on the ACA. The story discussed the rulings of the AIA applicability and noted that the IRS ruled it applicable. The ESQ who represented states discussed the unconstitutionality of the individual mandates and the ESQ who represented the USDHHS, discussed ERISA and HIPPA, federal regulations that address economic and confidentiality concerns in healthcare.

As the debates continued, my DNA started to boil from confusion. Traffic grew heavy from construction, no doubt funded by ARRA dollars. I needed GPS or ESP to navigate this world of acronyms—and a detour! I switched stations ASAP and listened to ABBA’s rendition of SOS.

Acronyms inundate our everyday speech, especially in the world of government. They are abbreviations of words or phrases, formed by the initial components or letters and are pronounced in different stylistic manners depending on the speaker or content. For example, people may individuate the letters of A, A, R, P, whereas others may say AARP—if you’re from Massachusetts, like my family, omit the R.

FYI: Some acronyms are capitalized, some are mixed with numbers (K9), and some are even regularly used words like laser, radar, and scuba.

Will the Next Veep Be a Former State Legislator?

by Alex Fitzsimmons

With Newt Gingrich’s departure from the Republican presidential race, the Mitt Romney Veepstakes are in full swing. But if history is a guide, we’ll have to wait a few more months before the presumptive nominee picks a running mate.

In the meantime, Larry Sabato of the University of Virginia has compiled a list of “VP Possibilities” ranked by tiers. Of those who made it on the list, six were state legislators and one wanted to be.

Marco Rubio was elected to the Florida House of Representatives from the 111th district in 2000. Just six years later, Rubio became the youngest House speaker in Florida history. In 2010, Rubio won a three-way race for U.S. Senate with almost 50 percent of the vote. Rubio has stated repeatedly that he has no interest in being vice president.

In 1992, Bob McDonnell was elected to the Virginia House of Delegates from the 84th District. McDonnell served as a delegate until 2006, when he was elected attorney general. The former Army officer was elected governor in 2010, but cannot run for re-election because of Virginia’s one-term rule. McDonnell is also the current chairman of the Republican Governors Association.

Tim Pawlenty served district 38B of the Minnesota House of Representatives from 1993 to 2003. Pawlenty became House majority leader in 1999, serving two terms in that position before running for governor in 2003. A two-term governor, Pawlenty ran for president in 2012, but dropped out of the race after a poor showing at the Ames Straw Poll.

Although not on Sabato’s list, Nikki Haley was elected to the South Carolina House of Representatives from the 87th district in 2005. In 2010, Haley became the first female governor of South Carolina and second Indian-American governor in the country (Louisiana’s Bobby Jindal was the first). Like Rubio, Haley says she does not want to be VP, going so far as to say she would decline “any position” in a Romney administration.

From 1994 to 1998, Brian Sandoval served as a member of the Nevada Assembly for the 25th district. Sandoval left the Assembly in 1998 after being appointed to the Nevada Gaming Commission. One year later, at age 35, he became the youngest person ever to serve as chairman of the commission. Before becoming governor in 2010, Sandoval served stints as state attorney general and as a federal judge.

Cathy McMorris Rodgers was elected to the Washington House of Representatives from the 7th district in 1995 at age 24. After eight years in the statehouse, McMorris Rodgers was elected to Congress. Though Sabato puts her in the fourth and last tier, McMorris Rodgers is the highest ranking Republican woman in the U.S. House as vice chair of the House Republican Conference.

Chris Christie wasn’t a state legislator, but that doesn’t mean he didn’t try. Before becoming U.S. attorney and New Jersey governor, Christie ran unsuccessfully for the General Assembly in 1995. Things have gone better for the governor lately, as he’s now considered a top-tier candidate for vice president.

In case you were wondering, if any of the above contenders become vice president, he or she would be the 23rd former state legislator to serve in America’s second highest office. The last was John Nance Garner, who was FDR’s VP from 1933 to 1941 after serving in the Texas House of Representatives from 1898 to 1902.

NCSL has a full list of presidents and vice presidents who previously served in state legislatures.

Early Indicators on Voters Blocked by ID Requirements

by Wendy Underhill

One of the big questions in the elections arena is, how many people who want to vote don’t have an ID?  So far, the answers to this question have been partial, theoretical or politically calculated.  NCSL does not have the “right” answer, either, but we can offer three distinct data points that may have value to election officials or researchers as we approach the presidential election.

In Michigan, where the photo voter ID law permits people to sign an affidavit in lieu of presenting an ID, 2,651 people did just that during the February 28 presidential primary election. That was out of 1,216,310 votes cast, or 0.22 percent. The Secretary of State collected the data on affidavits so the agency would have a clear understanding of how the affidavit is used.  Michigan HB 5061, which would put a reporting requirement on the use of affidavits in statute (among other elections-related changes), has passed the House and is under consideration in the Senate.

In two states that are implementing strict photo voter ID for the first time this year, recent elections have provided a bit more data.  Quoting directly from a “Data Dispatch” from the Pew Center on the States,

On February 28, nearly 27,000 Wichita, Kansas voters (of nearly 200,000 registered voters) cast ballots on a local ballot question involving whether the developers of a local hotel would get to keep part of future guest-tax income. Of these, 28 cast provisional ballots because they did not have the proper ID. Voters had several days after the election to provide ID to the county elections office in person or by mail. Of these, nine voters provided copies of the required identification, all by mail, leaving 17 ballots that had to be rejected for lack of ID.

During the March 6 Tennessee presidential primaries, more than 625,000 ballots were cast, the vast majority of which—more than 87 percent—were cast in the Republican race. These included 285 provisional ballots cast by voters who did not bring the proper photo ID to the polls. Data were not available on how many of these voters ultimately provided identification.

That is 0.1 percent in Kansas and 0.05 percent in Tennessee.

These numbers merely count people who attempted to vote but didn’t have valid ID; they do not capture potential voters without ID  who knew about their state’s ID requirement--and therefore did not attempt to vote at all. Measuring those folks is a trickier job.

Two other caveats apply to these data: 1) each state has its own cultures and conditions, so what happens in Michigan, Kansas and Tennessee may not apply elsewhere, and 2) these were all small or medium-sized elections, and may not predict how people will behave in a presidential election.

Still, as some of my colleagues say, “incomplete data is better than no data.”

If Energy Inefficiency is the Problem, States Have the Solution

By Alex Fitzsimmons

As the peak energy season approaches, people bring up words like “energy efficiency” and “renewable energy” as partial solutions for rising energy prices. But in many statehouses, energy efficiency isn’t just a buzzword – it’s public policy.

Ever the laboratories of innovation, 27 states enacted more than 55 bills last year related to energy efficiency. According to NCSL, much of the legislation focused on financing energy efficiency upgrades.

A number of states – including California, Oklahoma and Texas – enacted bills related to revolving loan programs. As loans and interest are paid back, the revolving fund is replenished, creating the opportunity to issue more loans for new projects. Initial funding for these programs often comes from a combination of federal stimulus funds and state tax revenue.

Other states passed bills concerning grant programs. In Colorado, for example, homebuyers can now receive a grant to upgrade their existing home, as long as the new home they purchase is energy efficient. Virginia offers financial incentives to businesses that produce equipment used for energy conservation.

These are just a small sample of bills passed over the last year related to energy efficiency. NCSL’s “State Energy Efficiency Action Update” provides a comprehensive analysis of energy efficiency legislation.

Good News About Civic Education in Tennessee

Peter Levine, director of CIRCLE, a professor at Tufts University and a passionate advocate for civic learning, posted news from the Tennessee Legislature on his blog:

On April 27, the Tennessee legislature passed a bill that will require school districts to assess their students’ knowledge of civics by giving them assignments that are “student-influenced” and that involve an “inquiry process structured around complex, authentic questions and carefully designed products and tasks.” These assignments will be used (once in grades 4-8 and a second time in grades 9-12) in lieu of written tests to find out whether Tennessee’s students can “demonstrate understanding and relevance of public policy, the structure of federal, state and local governments and both the Tennessee and the Untied States constitutions.”...

Testing and accountability generally pose a dilemma for civic education. If we don’t test civic knowledge and skills, they become afterthoughts in education, especially in schools where lots of kids are at risk of failing the subjects that are tested. But if we impose a new test, then (1) it becomes yet another way for students to fail, and (2) it encourages teachers to focus on the basic facts of government that are likely to be tested, even though there’s little evidence that learning these facts is motivating or that kids retain them later.

Project-based assessments are much more promising. Kids will have to do something with their civic knowledge, something that seems important to them. At a minimum, Tennessee’s bill is a very worthy experiment. The questions will be: What do kids learn? What kinds of instruction become common? And how reliable is the assessment?...

Credit apparently belongs to the indefatigable Justice Sandra Day O’Connor, who met with two leading state legislators (Sen. Mark Norris and Rep. Kevin Brooks) earlier this year to encourage them to do something for civics. With the help of Janis Keyser, Executive Director of the Tennessee Center for Civic Learning & Engagement, the legislators wrote a really foresighted bill that passed in less than three months.

Paltry Participation: 1.6 Percent Report Use Taxes

By Alex Fitzsimmons

People who make out-of-state purchases, including over the Internet, are supposed to pay sales and use taxes on those purchases. But as a new study indicates, just a tiny number of people actually report the use taxes they owe.

Only 1.6 percent of taxpayers nationwide reported use taxes on their 2009 tax returns, according to data from a Minnesota state House report. Rhode Island had the lowest participation rate, with only 0.2 percent of taxpayers reporting use taxes.

At a Senate Finance Committee hearing last week, NCSL submitted written testimony in support of the Marketplace Fairness Act, which would provide states the authority to require remote sellers to collect state sales taxes. The Marketplace Fairness Act, which enjoys bipartisan support in Congress, would close this tax loophole and level the playing field for brick-and-mortar stores, many of which are small businesses.

“Let us make this very clear: State legislators are not advocating any new or discriminatory taxes on electronic commerce,” wrote NCSL’s Task Force on State and Local Taxation of Communications & Electronic Commerce. “We desire, however, to establish a simplified sales and use tax collection system that allows sellers, regardless of where they are located, to collect and remit the legally owed sales and use taxes.”

“We need to make sure our federal, state and local tax systems are working together,” said Senator Max Baucus (D), chairman of the Senate Finance Committee. “As part of tax reform, we should ask how we can help states collect taxes owed and how we can encourage standard rules to protect taxpayers from multiple taxes and needless complexity.”

NCSL announced its support for the Marketplace Fairness Act last November. In a letter to congressional leaders, NCSL praised the bipartisan group of co-sponsors for attempting to close the sales tax loophole.

States and localities in 2012 will lose about $23 billion in uncollected sales and use taxes, with more than $11.4 billion from e-commerce sales, according to a University of Tennessee study. The same study found that only 4 percent of buyers said the collection of a use tax would affect their decision to purchase products online.

It's a Two-Party System...Arrrrrr!

by Tim Storey

There are 7,382 state legislators making policy and laws for the 50 American states. And the vast, and I mean VAST, majority of them are from the two major U.S. political parties. According to NCSL's most recent list of the partisan composition in state legislatures, 23 legislators are neither Democrats or Republicans. That means that legislators from third parties hold 0.3 percent of all legislative seats. Ds and Rs control 99.7 percent of the seats. I'm fairly certain that aside from the eight Progressive Party legislators serving in the Vermont House, all of the other non-major party members are "independents."

I got a call today asking about third party candidates for state legislatures. Apparently, a fellow named J.P. Hollembaek is trying to run for the Massachusetts General Court under the Pirate Party banner. Contrary to what you may think, the Pirate Party is not organized around plundering and rum running. According to the party's website, the Massachusetts Pirate Party is "The Party of Open: Open Government, Open Culture, Open Innovation & People First." Their main issues appear to be federal laws having to do with the Internet.

J.P. Hollembaek will have a tough time winning, if the success of other third party candidates for legislature is any guide. On average in elections from 2004 through 2010, there are 10,500 candidates who seek the roughly 6,000 state legislative seats up in each general election in the even numbered years. Of these, third party candidates make up about eight percent of all candidates--about 850 in each of the past four general elections. Most of these folks run as candidates for the libertarian or green parties or as independents.

But there are always a few that run under wildly different party names. Here are a few of the more interesting party names from the last several elections:

100 People 4 Chuck

4th of July

British Reformed Sectarian

Bull Moose

Common Sense

Cut Taxes

Evangelical Christian

Grassroots for Life

IVOTEMN.net

Mountain

Peace and Freedom

Rainbow

Socialist

The Blue Enigma

The Little

If J.P. Hollembaek beats the odds and gets elected, my best guess is that he will be the first ever Pirate Party state legislator in American history.

Voter ID Costs, Considered

by Todd Haggerty and Wendy Underhill

What does it cost to implement a strict voter ID requirement?  Many legislators would like to know. So would NCSL.

Because we get this question frequently, we looked into it last month. First, we created a webpage with links to many legislative fiscal notes that were attached to this year’s voter ID bills. We then called state and local election officials in states that are implementing new laws this year.  Last, we summed up what we had learned about voter ID costs in a short essay in Electionline Weekly. Here’s an excerpt from that document:

In 2012, cost estimates for voter ID laws range from “no fiscal impact” in Nebraska and Virginia to “unknown greater than $7,027,921” in Missouri for the first year of implementation. The variation can be explained in part by differences in the legislation—what IDs are accepted, and whether there is another mechanism, such as absentee voting, that won’t require an ID.

More significant are which factors states have included in their analyses. Some considered the cost of producing photo IDs for those people who don’t have them, the cost of voter education campaigns, and the cost of retraining the election workforce to apply the new rules. Some states included a revenue drop because state IDs that had been revenue-generators would be provided for free.

Basically, what we learned is that cost has not been a big concern in political debates over voter ID; nor has it proved to be a budget-buster for most states. Some local jurisdictions have concerns about possible incremental cost increases.

Thicket readers probably know that NCSL provides the “just the facts” perspective on voter ID requirements on a routine basis.  For instance, we highlighted voter ID in the April issue of The Canvass, and this week’s Legislative Action Bulletin devotes a page to the most recent action.

In tracking the news about voter ID implementation, we see that Pennsylvania’s Secretary of the Commonwealth, Carol Aichele, has clarified that the process for getting an ID for voting purposes will be easy as well as free for people with expired licenses. And, Mississippi’s Secretary of State, Delbert Hosemann, says that he hopes to have voter ID working for the November election—if the legislature passes enabling legislation and appropriates $500,000 for implementation.

NCSL will continue to capture data on the costs of voter ID, especially from the states that are implementing it now.  Let us know if you’ve got that kind of information in hand.

Pew: States Remain Popular, Feds Keep Falling

by Alex Fitzsimmons

Conventional wisdom says Americans don’t trust government. But a new survey may have state and local governments telling the feds: Speak for yourself!

While only a third of Americans view the federal government favorably, more than half hold favorable views of their state and local governments, according to the latest survey by the Pew Research Center.

The favorability gap is wider than ever. In 2002, about two-thirds of Americans held favorable views of all three levels of government. In the latest survey, the favorable rating of the federal government plummeted to 33 percent, while states and localities held steady at 52 percent and 61 percent, respectively.

As the Pew survey indicates, favorable ratings of government are sharply divided along partisan lines. While Republicans have an overwhelmingly dim view of the federal government (20 percent), they give their state government high marks (62 percent). On the other hand, slightly more than half of Democrats offer favorable ratings for both federal and state government.

Americans also believe their state government is more honest and less corrupt than the federal government. By a 49 to 37 percent margin, Americans describe their state government as “mostly honest” as opposed to “mostly corrupt.” In contrast, 54 percent of Americans view the federal government as “mostly corrupt,” while only 31 percent say it is “mostly honest.”

All three levels of government took a hit after the 2008 financial crisis, but states and localities have recovered while the federal government continues to decline. Now that states have leveled out, they can work on climbing back up.

Thinking about Economic Development? Mull it over with a Beer.

by Erica Michel

Photo credit: nealhknapp.com

When legislators think about expanding jobs and their economies, most probably don't immediately think of their neighborhood brewpub. However, according to a recent report by the Leeds School of Business at the University of Colorado at Boulder and released by the Colorado Brewers Guild, they might want to think again.

The report found that the craft beer industry in Colorado was responsible for $446 million in economic activity in 2011. The industry generates 5,800 jobs in the state and $102 million in income. These jobs are often located in rural areas where other industries have been declining. The local breweries have also boosted Colorado's tourism industry. Colorado collects nearly $9 million from the Colorado beer excise tax, in addition to other business taxes the industry pays.

When speaking about the Colorado craft brewing industry, John Carlson, executive director of the Colorado Brewers Guild told the Denver Post, "Explosive growth [in the craft brewing industry] continues to have a huge economic effect on the state, with no signs of slowing down."

According to a 2009 report by the Connecticut General Assembly's Office of Legislative Research, some states regulate the craft or microbrewing industry separately from larger breweries. These laws determine how and where craft breweries may distribute and sell their beer and the amount they may produce to be considered a microbrewery. Microbreweries are generally defined as breweries that produce fewer than 15,000 barrels per year, although many states have a higher threshold for microbrewery status.

At least five states - Kentucky, Michigan, Minnesota, Montana and Wisconsin—offer tax exemptions for microbreweries. Wisconsin's exemption was the first in 1973. Interestingly, Colorado does not offer tax exemptions for microbreweries.

So what legislative actions do craft brewers say can help expand their industry? According to the Colorado Brewers Guild report, lower taxes and increased access to financing top the list, with access to distribution channels and brewing equipment also noted as important.

Supreme Court Likely to Uphold Immigration Status Check

by Lisa Soronen

Yesterday the Supreme Court heard oral arguments in Arizona v. United States. The Court will be deciding whether federal law preempts four provisions of Arizona’s immigration law. As NCSL’s Ann Morse pointed out to CNN, “[e]very state is dealing with immigration,” making this case relevant to state legislatures nationally. See if your state’s immigration law is similar to Arizona’s here.

Supreme Court reporters and observers seem to agree the Court will uphold the portion of Arizona’s law requiring police to check the immigration status of anyone stopped or arrested when there is “reasonable suspicion” the person is here unlawfully. If the federal government does not want to pursue deporting someone, Justice Roberts pointed out, it doesn’t have to. But several justices seemed concerned about the amount of time it would take to confirm someone’s immigration status.

Tom Goldstein predicts, in a SCOTUS blog posting, a possible unanimous ruling in favor of Arizona’s law, on the above issue as well as on whether immigrants can be arrested without a warrant if there is probable cause to believe they have committed a removable offense.

Because the Court focused so much time on the issue of police checking immigration status, reporters and court watchers seem less certain about the fate of the law’s provisions making it a crime for non-citizens to not carry documents proving they are here lawfully to seek work or hold a job. Both liberal and conservative justices appeared skeptical of these provisions.

Everyone agrees Justice Scalia is Arizona’s most staunch supporter. The Wall Street Journal blog described Kennedy as “not the easiest to read on the bench today.” Justice Kagan recused herself from the case. If the Court votes 4-4 on any issue, the Ninth Circuit’s ruling (against Arizona on all provisions) will stand.

According to NPR, George Washington Law Professor Jonathan Turley calls this Supreme Court term “the most significant term in the history of the court in defining federalism.” Stay tuned ... the Court will rule these cases by the last week of June.

Lisa Soronen is the executive director of the State & Local Legal Center in Washington, D.C.

Homeless, but not Voteless

by Wendy Underhill

As the 2012 election draws closer, voter registration is becoming newsworthy, and with it comes the question of who is eligible to vote. The usual criteria apply: Voters must be U.S. citizens, over the age of 18, and in compliance with state laws on felony status, mental competency and residency.

“Residency” refers to how long a person has been in a state, not the characteristics of the abode. In other words, being homeless does not disqualify a person from voting. In the 1980s, several courts affirmed that the lack of a residential address could not be used to deny a person the right to register to vote.

Since then, at least 11 states have added statutory language that directly addresses these rights for homeless people: Arizona, Colorado, Iowa, Illinois, Indiana, Kansas, Maine, Nebraska, Oregon, Texas and West Virginia.  Mainly, these states affirm that a mailing address for the purposes of voting can be a homeless shelter or other nontraditional place. Illinois’ statute goes further, saying, “Nothing in this Section shall be construed to prevent homeless individuals from registering to vote under the provisions of this Act.”

Yet, when one’s “permanent” abode is a park bench or a highway underpass, registering to vote can be tricky—as well as important. Besides a prerequisite for voting in all states except North Dakota, registering to vote provides an important benefit for homeless people.  “You get a paper card with your name on it even if you don’t have another ID,” says Michael Stoop, of the National Coalition for the Homeless.

Is the Transportation Reauthorization Traffic Jam Opening Up?

by Ben Husch

Late last week, the U.S. House of Representatives approved H.R. 4348 that extends authorization of the surface transportation program through September 30 and provides a path for the approval of the Keystone XL pipeline. Although the bill is not expected to be signed by the president, it opens the way for the House and Senate to form a conference committee to begin direct negotiations over a long-term reauthorization.

The main contention between the two chambers centers on funding, as the current gas tax rate of 18.4 cents per gallon will not provide enough revenue to maintain current spending in the coming years. The two chambers have very different proposals for increasing revenue. The Senate bill would authorize a number of transfers from other funds to the Highway Trust Fund while the House version would rely on royalties from future offshore oil and gas leases.

Many members of Congress see the movement toward a conference committee as a positive step. U.S. Department of Transportation Secretary Ray LaHood, however, is not as enthused, noting “I wish I could say we’ll get a transportation bill [in the next six months], but I know we won’t … not before the election.”

Balanced Budget Requirements

by Todd Haggerty

Question: In 1842, what state became the first to adopt a balanced budget requirement (answer is at the end of this post)?

Balancing the budget is widely considered to be the foundation of state fiscal practices. Keeping a budget balanced in times of fiscal stress, however, can be an overwhelming challenge for policymakers. What is meant by a balanced budget is not as clear as it may seem intuitively. Even the number of states whose laws require a balanced budget can be disputed, depending on the way the requirements are defined. The NCSL has traditionally reported that 49 states must balance their budgets, with Vermont being the exception. Other authorities add Wyoming and North Dakota as exceptions, and some authorities in Alaska contend that it does not have an explicit requirement for a balanced budget. Two points can be made with certainty, however: Most states have formal balanced budget requirements with some degree of stringency, and state political cultures reinforce the requirements (for more information on balanced budget requirements click here).

The history of state balanced budget requirements is as rich and varied as the provisions themselves. James D. Savage noted in his 1988 book, Balanced Budgets and American Politics, the Panic of 1837 was the spark that pushed states to impose balanced budget requirements. Savage notes that “nineteen states adopted these amendments between 1842 and 1860.”

New Video Teaches Importance of Citizen Participation

by Jan Goehring

A platypus, a robot and the ghost of James Madison star in a new animated video, Citizens Unite! A Helpful Guide to Being a Better Citizen, produced by the Center on Congress at Indiana University. This lively video teaches young people the importance of citizen participation in our democracy. “It’s a serious message presented in a light-hearted manner, to grab the attention of young people and get them thinking about how a good citizen should behave,” said Center Director and former Congressman, Lee H. Hamilton.

The video shows citizen participation over the country's history and how people have made a difference. Citizens Unite! is a product of the Center's Teaching with Primary Sources program funded by the Library of Congress. The video weaves in historical images of citizen movements. It's all about citizens playing an active role in their community and creating positive change.

    Image courtesy of the Center on Congress.

States Win in SCOTUS Ruling on Qualified Immunity

By Lisa Soronen

While the country awaits the U.S. Supreme Court’s decision on federal health reform, state and local governments scored a victory Tuesday on another issue at the high court. In a unanimous decision, the court ruled in Filarsky v. Delia that government-contracted attorneys may receive immunity if they violate someone’s constitutional rights.

The National Conference of State Legislatures (NCSL) signed onto the State and Local Legal Center’s amicus brief in this case, arguing that outside attorneys are likely to raise their rates or even refuse to represent government altogether if they can never receive qualified immunity.

In its decision, the court discussed a number of policy reasons why qualified immunity should be granted to private individuals performing occasional services for the government.  Some of these reasons include the fact that the “most talented candidates” may decline public assignments if they don’t receive the qualified immunity, the “distractions that accompany even routine lawsuits,” and the difficulty of determining if someone is working for the government full time and permanently.

While this particular case involved an outside attorney working for a city, qualified immunity applies to state employees as well.  So an outside attorney hired by a state also will be eligible for qualified immunity under Filarsky.

Patricia Millett, who argued Filarsky before the court, and Paul Clement, who argued the Affordable Care Act cases, are both speakers in a free webinar on July 19 hosted by the SLLC on the Supreme Court cases affecting state and local government from this term.

Lisa Soronen is the executive director of the State & Local Legal Center in Washington, D.C.

Unified Message For Congress: Reauthorize ESEA

By Lee Posey

State and local organizations have a unified message for Congress: reauthorize the Elementary and Secondary Education act!

NCSL has joined with nine other organizations to form a coalition to lobby for the reauthorization of the Elementary and Secondary Education Act (ESEA). The “State and Local Governance Coalition” is launching an unprecedented coordinated campaign to encourage Congress to push forward on completing work on this important law.

Organizations in the coalition, in addition to NCSL, include: National Governors Association, The Council of State Governments, National Association of Counties, National League of Cities, The U.S. Conference of Mayors, International City/County Management Association, Council of Chief State School Officers, National Association of State Boards of Education and National School Boards Association.

Both the U.S. House and Senate have passed ESEA reauthorization legislation in their respective education committees, but congressional action before the full chambers has stalled. An initial letter to the Hill on February 6 reiterated the need for congressional “leadership and urgency” and urged Congress to remove restrictive and unnecessary federal policies that limit innovation at the state and local level.

The letter enumerated several basic principles the coalition supports:
•    Greater flexibility for state and local leaders in terms of education accountability structures
•    Increased flexibility in using federal education funds
•    Recognition of state and local budget challenges
•    Streamlining of federal red tape and compliance requirements
•    Streamlining of the NCLB waiver process

To build momentum around reauthorization, representatives of the coalition have been meeting with staff of the relevant congressional committees and subcommittees. Following the Hill visits, the coalition will continue a communication strategy designed help members of Congress understand that policymakers at the state, local and school district level need certainty in federal policy at a time when they are struggling with reallocating scarce education resources to fund what works. And they need federal policy that encourages state and local innovation instead of focusing on process and compliance.

In the absence of congressional action on ESEA, many states have turned to the immediate flexibility offered by the U.S. Department of Education through the waiver process. While the waivers have provided temporary relief from specific provisions of the law for some states, the states that haven’t qualified for the waivers are left struggling to meet the unreasonable requirements of NCLB.

Photo courtesy of iStock

Ranking City Flags

by Karl Kurtz

Washington D.C. flag

The North American Vexillology Association recently ranked 150 city flags and published a book, American City Flags, about them . Washington D.C.'s popular flag ranked first, followed in the top 10 by Chicago, Denver, Phoenix, St. Louis, Wichita, Portland, Indianapolis, Louisville and Corpus Christi.

And yes, in case you are wondering, vexillology is a word, invented in 1957 (by a vexillologist) and meaning the study of flags.

The story about city flags caused me to wonder if there was a ranking of state flags. Sure enough, in 2001 the same organization ranked 72 state and provincial flags in North America using this methodology:

Responses came in from 100 NAVA members and over 300 members of the public in 20 countries. Participants rated 72 flags on their design qualities (rather than on political, historical, or geographic considerations) on a scale of 0 to 10, where 10 was the best score. They were asked to rely on their personal sense of good flag design in rating the flags, which appeared on the web page. They cast well over 29,000 individual votes.

New Mexico flag

NAVA members favored strong, simple, distinctive flags, choosing New Mexico, Texas, and Quebec in first, second and third place, all with scores above 8. They scorned the "seal-on-a-bedsheet" design common to more than half of U.S. state flags, forcefully relegating those flags to the bottom of the heap with scores averaging less than 4. 

If you're from a state with a "seal-on-a-bedsheet" flag design, consider yourself rebuked by the vexillologists. As for The Thicket, we love them all equally.

The Fix Identifies the 10 Most Popular Governors

The Washington Post's Aaron Blake, writing in the political blog, The Fix, calls out the nation's 10 most popular governor, taking "into account all factors in determining how successful the governors have been — from approval rating to difficulty of what they have attempted to do legislatively to the political bent of their states:"

10. Virginia Gov. Bob McDonnell (R)
9. Montana Gov. Brian Schweitzer (D)
8. New Mexico Gov. Susana Martinez (R)
7. Nevada Gov. Brian Sandoval (R)
6. Colorado Gov. John Hickenlooper (D)
5. Arkansas Gov. Mike Beebe (D)
4. New Hampshire Gov. John Lynch (D)
3 .Indiana Gov. Mitch Daniels (R)
2. New Jersey Gov. Chris Christie (R)
1. New York Gov. Andrew Cuomo (D)

The story calls Gov. McDonell of Virginia a leading contender for the Republican vice presidential nomination and New York's Gov. Cuomo "an early favorite for the 2016 Democratic presidential nomination."

You Forgot John Grisham!

by Karl Kurtz

This month's issue of State Legislatures features a story, "Mystery Man," about Illinois Senate Counsel David Ellis who writes detective novels on the side. After reading a sidebar about other detective novels that are set in or about state legislatures that I was partially responsible for compiling, Virginia Senate Clerk Susan Schaar wrote, "You forgot John Grisham who was in the Mississippi Legislature! Now he lives in Charlottesville, Virginia."

Thanks for the comment, Susan, but we didn't forget John Grisham. Magazine editor Ed Smith and I just don't think he fits our category. While he has sold far more books than the other authors in our list of detective novelists connected to state capitols--and did indeed serve as a member of the Mississippi House from 1983 to 1990--as far as we know Grisham has never written a novel that is set in a state capitol or is about a legislature or legislators.  Readers should correct us if we are wrong.

Many years ago I was in the office of then-speaker of the Mississippi House Tim Ford and noticed a glass cabinet with signed copies of Grisham novels. I asked him what Grisham was like as a lawmaker. "Well, let me put it this way," Ford said, "he's a better novelist than he was a legislator."

Please Fill Out Your Name, SS Number and Facebook Password

By Meagan Dorsch

When applying for your next job, you may need to submit the username and password for your personal social media accounts along with a cover letter, résumé and list of references.

Several companies, and government agencies, have been challenged for allegedly asking job applicants to provide passwords to their personal social media accounts as a condition of employment. This week, U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) asked the U.S. Department of Justice  and the Equal Employment Opportunity Commission to look into the matter.

This issue had already grabbed the attention of state lawmakers.  According to the National Conference of State Legislatures, lawmakers in a handful of states have introduced legislation to prohibit such actions. The state of Maryland is set to be the first state to enact this legislation prohibiting this action. A separate bill passed the House in Illinois, and concern over this practice might even prompt federal legislation.

Why do employers want to see what you do on social media? Presumably, they are looking for the “real” you, making sure that those who work in public agencies or with children are not engaging in inappropriate behavior or that those in a high profile position (who might represent a company) do not have inappropriate material floating around online.

What appears to be at the heart of this issue for state and federal lawmakers are privacy and employment laws, both of which could be violated if a person provides passwords to personal accounts. There is also the concern over businesses violating the Federal Stored Communications Act. Even Facebook, the company that has been at the heart of several privacy issues, says providing this information goes against its user agreement. The company has even threatened to sue employers that violate its policy.

Senators Blumenthal and Schumer have called this a disturbing trend, one that has the attention of Congress, state legislatures and the public. For some, it’s an issue of privacy; others see the issue as an infringement of rights. As one person commented on a recent thread, if an employee is asked for his/her password, is it fair to demand it from the company as well? 

Photo from the Daily Press & Argus article in Livingston Daily.com. 

Updated April 11, 2012 to include information regarding Maryland's bill.

Washington Legislative Staffer Sues for $1.75 Million Over a Hostile Work Environment

One of the characteristics of the work environment of legislative staff that makes their jobs different from most others is the large number of bosses--legislators--that they may have to respond to. When staff come into conflict with one or more of their principals, difficult situations can result. From an AP story in the The Herald (Everett Washington):

A Senate Republican senior attorney is seeking a $1.75 million settlement from the state, saying a hostile work environment has been created by allowing a controversial senator back into the GOP caucus and restoring her access to staff in exchange for a vital budget vote.

In a document obtained Wednesday by The Associated Press, an attorney for Republican Senate Counsel Mike Hoover says that Hoover felt pressured to quit so that the caucus "could more easily make a trade with" Sen. Pam Roach, R-Auburn....

Roach was banned from the Republican caucus two years ago after an investigation concluded that she had mistreated staff. GOP leaders wrote in a letter to her that they had concluded that she should be physically separated from other members and staff.

They implemented policies barring Roach from the caucus room and deemed her ineligible to participate in caucus votes. The letter did say the policies could be re-evaluated in one year with the mutual agreement of the caucus and Roach.

The punishment followed numerous incidents with Hoover, culminating with an "unusually vicious attack" in 2009, according to the 15-page document sent Monday to Tom Hoemann, the secretary of the Senate. In that incident, the document says, Roach yelled at Hoover during a meeting with the rest of the caucus....

Congress Kicks Can on Transportation, Another 3 Month Extension

What it Means for States

By Jon Kuhl

On Thursday, March 29, the House and Senate agreed to kick the can down the road and give themselves a three-month extension before agreeing on a longer-term transportation bill. This latest deal marks the ninth such extension since the previous transportation law expired in 2009.

 

In a short video interview, NCSL Committee Director Ben Husch discusses what this means for states, and how likely a more permanent solution may be in the midst of an election year.

 

 

Fantasy Teams Become a Reality

By Caitlin Rossiter

As March Madness wraps up this weekend, the focus shifts to summer and fall sports such as baseball and football. Eager sports fans begin to draft their teams for fantasy sports competitions. A fantasy sports competition, also known as rotisserie or roto, is a game in which people create a fantasy team out of actual sports players. This pretend team competes against other fantasy teams based on the statistics generated by real players that season. According to U.S. News and World Reports, nearly 30 million Americans play fantasy sports, generating up to $1 billion for the industry.  

In six states states, however, such fantasy competitions are subject to fines and criminal punishment: Arizona, Iowa, Louisiana, Maryland, Montana (only unlawful by telephone or internet), and Vermont. The federal law, Unlawful Internet Gambling Enforcement Act of 2006, exempts fantasy competitions, allowing states to decide how to enforce the law.  Proponents see fantasy competitions as a way to expand the fan base for national sports and promote camaraderie. Opponents associate such activities with the risk and chance of gambling, and note that under-the-table winnings are often not taxed.

Maryland lawmakers are debating a bill sponsored by Delegate John Olszewski Jr. concerning “Criminal Law—Betting, Wagering, and Gambling—Fantasy Competition,” that would exempt individuals in Maryland who place monetary wagers on fantasy games from currently applicable fines of up to $1,000 or imprisonment not to exceed one year. Since 2008, Olszewski bill has been criticized as not being a pertinent issue. Olszewski counters that the bill is necessary since the Maryland Department of Legislative Services concluded that fantasy sports are not gambling because winning is largely determined by an individual’s analytical skills of national sports statistics, and not based on chance. This year, Olszewski’s bill passed the House with an amendment and is making its way through the Senate. 

Louisiana lawmakers considered a similar bill in 2010 that failed 16 to 73 in the House. The penalty for participating in fantasy competitions in Louisiana is up to $500 or imprisonment for no more than six months. 

Although states have diverse laws regarding fantasy competitions, online fantasy sports leagues often tackle this muddy arena by posting disclaimers and legal notices encouraging individuals living in certain states to participate in free leagues, or leagues without entry fees, to earn points for purchasing prizes. So in the “buyer beware” market of fantasy sports competitions, if you choose to participate, know your sport stats and your state laws.

Unique Initiatives for Unique Times

by Alex Fitzsimmons

For almost four years, state lawmakers have been grappling with the challenges of a weak economy. The pressure to do more with less has led some to get creative. From energy to education, citizen legislators on both sides of the aisle and across the country have found a host of unique solutions for these unique times.

State lawmakers intent on curbing rising gas prices and weaning their states off foreign oil are turning to a wide range of alternative fuels. For example, Texas Sen. Tommy Williams (R) authored a bill to promote conversion of vehicles to natural gas. "In addition to reducing pollution, natural gas vehicles will generate more clean energy jobs, facilitate economic growth, and move us closer to energy independence," Williams told State Legislatures magazine.

The Texas bill diverts funds from the state emissions reduction program to help convert transit buses and delivery trucks from diesel to natural gas. Williams claims that converting just one waste truck from diesel to natural gas is equivalent to taking about 325 cars off the road. Texas is also working on creating natural gas filling stations connecting Austin, San Antonio, Dallas and Houston.

Up north, South Dakota lawmakers are hoping to woo out-of-state workers with a new workforce development plan. With one of the lowest unemployment rates in the country, South Dakota has more job vacancies than in-state applicants. To fill the positions, the South Dakota legislature recently passed a package of initiatives designed to recruit unemployed workers from other states. Starting April 1, the state will contract with Manpower, a recruitment firm, to find workers willing to relocate.