The Thicket at State Legislatures

CA says no to employers asking for SM passwords

By Meagan Dorsch

Can employers force potential or current employees turn over the username and password of their personal social media accounts? California is the latest state to address the issue as Jerry Brown signed bills Thursday prohibiting employers and institutions of higher education from forcing students and prospective employees to hand over their personal social media data.

We first wrote about this issue in April on The Thicket. At that time, the state of Maryland was set to become the first state to enact legislation prohibiting this action. A separate bill passed the House in Illinois, and concern over this practice was being discussed in Congress.

NCSL continues to track this issue and has released data showing that over a dozen states considered legislation that would restrict employers from requesting access to social networking usernames and passwords of applicants, students or employees in 2012.

Four states enacted legislation in 2012 this year, two of which prohibit higher education institutions from requiring students to disclose social media passwords or account information.

As mentioned in the previous post, 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. What is your take? 

Michigan's Gary Olson, Past NCSL Staff Chair

by Karl Kurtz

Gary Olson, former director of the Michigan Senate Fiscal Agency and staff chair of NCSL in 2002-03, died last week after a four year battle with melanoma. Gary also served as president of the National Association of Legislative Fiscal Officers.

In recognition of Gary’s outstanding contributions to state fiscal policy and for his dedication to expanding training opportunities and services to legislative staff, he was honored with NCSL's Steven D. Gold award in 2010. “His work and contributions are definitely in the tradition of Steve Gold, who provided assistance to so many legislators and staff, and he is a worthy recipient of this award,” said NCSL Executive Director Bill Pound in a tribute to Gary published in State Legislatures magazine.

The article goes on to note the many similarities between Steve Gold and Gary Olson, including not only their professional ties but also their devotion to the University of Michigan. Now, unfortunately, there is another link between the two. Both died too young: Steve at 52 and Gary at 57.

“Gary has made solid contributions to the professionalization of legislative fiscal staffing during some very difficult budget times in Michigan,” Pound said. Like Steven D. Gold—former director of fiscal studies at NCSL and one of the country’s foremost state fiscal policy experts—Gary also found time to become a leader in the development of legislative staff programs nationally as an officer of NCSL.

Gary has many great friends among legislators and legislative staff around the nation and numerous NCSL staff who learned from him and benefited from his leadership. We miss him. We also send our best wishes to his lovely wife Teresa.

Gary's obituary appeared in the Lansing State-Journal. A more complete remembrance of Gary will be in the next edition of State Legislatures magazine.

Seeing the States through Photographers' and Writers' Eyes

by Pam Greenberg

Beach visitors watch the sunset in Dauphin Island, Alabama, on August 22, 2012. (AP Photo/Dave Martin). The Atlantic.com

The Atlantic magazine’s new photography blog, In Focus, last week featured “America: 50 States in 50 Photos.” The photos from mid 2012 "… are simply interesting, noteworthy, beautiful, or otherwise caught my eye.” says the collection’s editor, Alan Taylor.

The photos may not represent the whole of any state, as Taylor says, but luckily for us, some photographers and writers in recent years have attempted to collect a bit of the character of our states. The 50 States Project, which ran January through September in 2009, featured images from 50 photographers from across the U.S. The photographers were asked to produce images that represented their own style and the states’ “people, habitat, landscape, industry, and entertainment.”

Another 50-state collection, the book “State by State: A Panoramic Portrait of America,” features essays of 50 writers from 50 states. Editors Matt Weiland and Sean Wilsey explain the idea behind the book:

This book started with a hunch and a conviction. The conviction was the easy part: that despite drive-time radio and the nightly news and the Sunday paper, despite all the books and blog posts, the documentaries and songs, America and the lives lived here remain strangely and surprisingly underdescribed.”

 They go on to explain that the fifty states “…bound together today as tightly as any confederation on earth—somehow stubbornly resist blending into a single undifferentiated whole.”

Each state’s essay seems to affirm that theme, including the the Texas piece, with reflections about the state’s politics, capitol building, and reputation as “a state more independent than the rest.” The South Carolina essay begins with the famous quote of state legislator James Louis Petigru, who opposed secession in 1860, saying: “South Carolina is too small for a sovereign nation and too large for an insane asylum.”

Time for an armchair road trip?

Federal Sequestration: What it Means for States

By Alex Fitzsimmons

In Washington, D.C., the word on everyone’s lips is “sequestration.” Nobody wants it, but everyone seems powerless to stop it. So what is sequestration, and why should states care?

NCSL’s budget team answers these questions in a pair of new reports designed to assess the impact of the federal sequester on state budgets. 

Sequestration is a formal way of referring to mandatory cuts to federal programs. It is a process by which funds are literally taken away from federal agencies. In this case, Congress sequestered $1.2 trillion in mandatory cuts—half from domestic programs, half from defense spending.

Here are some examples of what states can expect in terms of reduced funding for FY 2013, according to the White House Office of Management and Budget’s (OMB) sequestration report:

• $1 billion plus cut to Title One education programs.
• $600 million less for Head Start.
• $140 million reduction in financial aid for college students.
• $2.5 billion cut in medical research.
• $600 million reduction to the federal disaster relief fund.

To make matters worse, programs with unfunded or underfunded mandates—including Real ID, No Child Left Behind Act, homeland and border security programs, Individuals with Disabilities Education Act, and the state criminal alien assistance program—would be further underfunded or remain unfunded.

On the defense side, we can expect almost $4 billion in cuts to operations and maintenance, a $2 billion reduction in research, development, and evaluation, and a $700 billion decline in procurement. A new analysis released on Friday by a defense industry trade group projected that defense cuts would cost 2.14 million American jobs.

But it’s not all bad news for states. While sequestration affects virtually every category of domestic discretionary spending, most state-fed entitlement programs are exempt, including Medicaid, the Temporary Assistance for Needy Families Block Grant (TANF), the Supplemental Nutrition Assistance Program (SNAP), and the Children’s Health Insurance Program (CHIP).

In January, NCSL’s Deficit Reduction Task Force sent a letter to the White House and Congress urging Washington to “go big” on deficit reduction and explore all possible avenues, including discretionary spending, entitlement reform and revenue options.

Congress still has time to prevent these cuts from taking effect, though that likely won’t happen until after the election. In the meantime, states should prepare for the worst and hope for the best.

Legislators Visit Ground Zero, Explore Security Challenges on NYC Trip

By Jennifer Arguinzoni

NCSL Energy Supply Task Force and NCSL Homeland Security Task Force at the National Sept. 11 Memorial located at ground zero.

In commemoration of the 11^th anniversary of the 9/11 terror attacks, the National Conference of State Legislatures’ (NCSL) Energy Supply Task Force joined the NCSL Homeland Security Task Force for a two-and-a half day meeting in New York City. Legislators and legislative staff immersed themselves in issues related to critical infrastructure, security of U.S. rails, ports and air space and emergency management and preparedness.

The trip began with a walking tour and historical briefing of the New York High Line. The High Line is a public park constructed on a former freight rail line elevated above the streets on Manhattan’s West Side. Built in the 1930s as part of a massive public-private infrastructure project called the West Side Improvement, the High Line lifted freight traffic 30 feet in the air, removing dangerous trains from the streets of Manhattan's largest industrial district.

The next morning, the NCSL group participated in a round table discussion with officials from the Metropolitan Transit Authority and Port Authority of New York and New Jersey about how to better secure U.S. rail and air transportation systems, as well as protect the public while providing a passenger-friendly environment. The Port Authority shares responsibility for operating the world’s largest airport system with other agencies at the local, state and federal levels.

“I was privileged to join other members of the NCSL Homeland Security Task Force in touring various venues in New York City recently,” said Kansas Senator Jay Emler (R). “There were excellent briefings by the Port Authority and the Protective Services Advisor from the Department of Homeland Security.”

The group traveled to New York City’s Office of Emergency Management in Brooklyn to explore critical infrastructure protection and to discuss the roles of state legislatures. In times of emergency, ensuring that critical utility infrastructure such as electricity, water, and communications are available to citizens can be the difference between triumph and tragedy. 

Their final activity was touring the new National Sept. 11 Memorial located at ground zero. The memorial sits on the footprints of former World Trade Center buildings one and two contains the names of the people who perished in the attacks, along with those who died during the World Trade Center bombing in 1993. Putting the challenges and consequences of homeland security into perspective, the Sept. 11 Memorial was a fitting capstone to an informative trip.

“Probably the single most poignant briefing and tour was of Ground Zero,” said Emler. “The Task Force had not been to Ground Zero for several years. The transformation was astounding! The amount of thought that has gone into the design and construction of the new facilities at Ground Zero is amazing. It embodies the true spirit of the United States; ‘Don’t Tread on Me.’”

Jennifer Arguinzoni is a policy specialist in NCSL's State-Federal Relations Division in Washington, D.C.

Too Much Information: Enemy # 1 for New Member Orientation

by Bruce Feustel

New Mexico state Rep. Eliseo Lee Alcon speaks to the Legislature’s freshman class during new member orientation in 2010.
Credit: Santa Fe New Mexican

Turning inexperienced new legislators into savvy members able to hold their own in the legislative and political processes is both a challenge and a responsibility for legislative leaders and senior staff. In an increasingly partisan world with more media scrutiny, greater transparency and ever-more complex policy choices, new members must avoid political pitfalls and become effective legislators from the outset. This is true for legislators in all 50 states but especially so in the 15 term-limited states where new members may take on leadership responsibilities almost immediately.

Effective new member orientation programs play a key role in helping legislators transition from campaigning to governing. Many legislatures are putting more thought and planning into their new member orientations, focusing on determining what knowledge and skill training will best prepare the new lawmakers.

For over a decade NCSL has been collecting ideas and best practices for successful new member orientation programs from the legislators and legislative staff that coordinate these events. Here are some of their top tips for orientations:

• Plan well ahead.
• Get leaders' active support and involvement.
• Don't overwhelm the participants.
• Focus on the essentials.
• Make it hands-on and interactive.
• Give participants time to get to know each other.
• Be flexible and make adjustments.
• Provide training in segments that allow time for reflection.
• Custom fit your computer training for a wide ability range.
• Give participants materials that allow them to continue learning.
• Get feedback and adjust future programs based on that information.

In our most recent survey of new member program coordinators, a variant of "don't overwhelm them" prevails: Don't give them too much information. One survey respondent described it as "too much territory covered results in less retention." Another mentioned that the hardest part of NMO planning is figuring what to keep out of the program. A third cautioned fellow coordinators to remember that it is "an orientation. The details will work themselves out" as the freshmen start the actual session. This "don't overwhelm them" goal is even harder now, as there may be added pressure from many sources to add more to their orientations.

To counter this, many coordinators like Terry Anderson in Wisconsin are improving the training materials that give the participants a chance to reflect and review the key information. Numerous programs also include some lower-key receptions. Effective legislating involves building trust and relationships, and that often starts with a lawmaker's fellow new members. Legislators begin the process by understanding their colleagues and what makes them tick. These receptions often give the participants a chance to unwind and reflect on what they've heard and what their peers are thinking about heading into the session.

More information is available on NCSL's new member orientation web page.

Readers Debate the Merits of Post-election Audits

by Wendy Underhill

The September issue of NCSL's elections newsletter, The Canvass, addressed what I thought was a sleepy topic: post-election audits. (As a way to double-check that the procedures, voting equipment and vote-counting software yielded the correct result, election officials run a post-election audit by hand-counting the ballots from a random set of precincts or machines.)

So I was surprised that this issue received more responses than politically-charged and publicly debated issues, such as those on Voter ID or Voter Registration.

A professor of state and local government affairs, wrote, "I had never heard of "post-election audits" or the idea that such things might be mandated by state law.  I would guess a lot of legislators have never heard of such things either. "

Kim Alexander, president and founder of The California Voter Foundation, wrote, "I really appreciated the list of reports and studies featured in the newsletter relating to PEA's." And she added a report that I had missed: Post-Election Audit Standards Working Group Report, from California's Secretary of State.

And then there was one full-on critique. I quote here from Frank Sampsell, a former election official in Berrien County, Michigan:

I don't necessarily condemn post-election audits, at least not in principle.  I see the validity of audits as spot checks for performance or procedural issues.  However, I know there has been a call placed by our colleagues in the election community to begin drumming up data on all things elections.  I would ask legislators to demand this data before enacting laws which may eventually produce virtually no return. 

In the case of post-election audits, I think this data would be relatively easy to develop, especially as some states already have these audits on the books.  How long does the audit of a single precinct take?  How much does that practice cost?  What percentage of these audits yield a significant issue?  What types of issues are found?  How often do these issues endanger the legitimacy of the election outcome? 

At some point, the field of elections administration really does need to consider the least popular of all questions:  Which is a greater danger to our republic?  Fractions of 1 percent of our population being disenfranchised due to error, or hundreds of millions of dollars being spent across the country to clean up those errors?  Patriotically and ideologically speaking, there is something un-American about accepted the first option, but economically and administratively, there is legitimate credibility to the second point--if we already get it right 99.5% of the time, how much is that last .5% worth?  Moreover, if that last drop in the bucket is caused by human error (as would likely be caught by an audit), will it ever be eradicated by the addition of any new procedure?  

Besides, if there is any one lesson the past decade has taught us, it is that virtually any significant election that finishes within 1 percent in the tally is eventually going to be decided by the Judicial branch.  

His final comment is an excellent segue. The October issue of The Canvass will address election law and the courts. If you have thoughts on either post-election audits or election law challenges—or if you would like to receive a copy of Frank's full comments, please let us know.

Education Labor Laws in Light of Chicago Teachers' Strike

By Michael Reed

Teachers on strike outside Chicago Board of Education district headquarters (AP Photo/Sitthixay Ditthavong).

Chicago’s public school teachers went on strike Sept. 10 for the first time in 25 years. The strike idled the nation’s third largest school system, which serves more than 400,000 students and employs more than 35,000 teachers and staff.

Negotiations between teachers and Chicago Public Schools over a new contract to replace the one that expired in June are ongoing but were snagged on salary, health benefits, layoffs due to school closings or restructuring and teacher evaluation protocol.

In recent years, teachers have gone on strike in Tacoma, Wash., (10 days in 2011) and Detroit, Mich. (16 days in 2006).

There can be stark differences among labor laws that affect teachers across states. For example, 35 states allow teachers to collectively bargain, but variations exist over what teachers and schools may bargain. Rules establishing what may be collectively bargained (such as wages, benefits, or terms of employment) and strike protocol largely fall under state jurisdiction. It is illegal for teachers to strike in 27 states. However eight states, including Illinois, explicitly permit teachers to strike under certain conditions. The Illinois legislature passed an education reform bill (SB7) in 2011, which rewrote several rules for collective bargaining for Chicago teachers and the district, including allowing teachers and districts to collectively bargain:

• Class size, staffing, and assignments

• Length of the school day and work day, and academic year

• Student assessments

• Third-party contracting/Outsourcing

Additionally, SB7 establishes timetables and rules for impasses and strikes which include mediation and voluntary arbitration, as well as requiring three-quarters of a union’s members to vote for a strike.

NCSL maintains a Collective Bargaining and Labor Union Database that tracks state legislation on unions and collective bargaining. As the labor dispute between Chicago’s teachers and the school district continues on such a large stage, it will be interesting to see what, if any, legislative responses we may see from state capitols around the country.

Michael Reed is a policy associate in NCSL’s state-federal relations division in Washington, D.C. Michael specializes in labor and education issues.

Changes in Legislatures Using Multimember Districts after Redistricting

by Karl Kurtz

The Nevada Senate has eliminated the use of multimember districts (MMDs) in the new redistricting cycle, but the total number of MMDs has increased slightly, according to a recent compilation by my colleague, Morgan Cullen. Here is the lineup of legislatures with MMDs for the next decade:

Nevada's elimination of its two multimember districts in the Senate reduces the number of states with at least one MMD from 11 in the new redistricting cycle compared to 10 in the previous decade. But the total number of MMDs in the nation increased by five from 464 to 469. The increases were all in the New Hampshire (7) and Vermont (4) houses of representatives. This slight increase arrests (it would be hard to say reverses) a decades-long decline in the use of multimember districts in state legislatures.

Maryland, New Hampshire, South Dakota, Vermont and West Virginia are the only states that mix single member districts in some parts of the state with MMDs in other areas. The other states all have uniform two-member house districts, usually nested inside of a senate district. (In South Dakota's case, two out of 35 house seats have single member districts to comply with the Voting Rights Act and allow for representation of Native Americans; the remaining 33 seats are two-member districts.

The largest number of members in a house district is 11 in New Hampshire and in a senate district it's six in Vermont.

Does Colorado Have a Republican Form of Government?

by Karen Shanton

Tucked into Article IV, §4 of the U.S. Constitution is the following promise: "The United States shall guarantee to every State in the Union a Republican Form of Government." This obscure and tricky-to-interpret promise – known as the Guarantee Clause – could upend a two-decade-old constitutional amendment in Colorado.

In 1992, Colorado voters added the Taxpayer's Bill of Rights (TABOR) to their state constitution via the initiative process. This amendment, which was sought by small government advocates as a check on government expansion, effectively shifted tax-levying powers from the state legislature to the electorate. Under TABOR, tax increases are limited to the rate of inflation plus population growth; heftier bumps must be okayed by voters.

TABOR's opponents argue that this shift has hamstrung Colorado's government. Without the ability to raise revenue, they argue, legislators can't fulfill their obligations to constituents – including a state constitutionally-mandated duty to provide a "thorough and uniform system of free public schools throughout the state."

This has prompted a bipartisan group of elected officials, educators and private citizens to bring suit against the measure. In their brief for Kerr v. Hickenlooper (2011), the plaintiffs contend that TABOR caused a "slow, inexorable slide into fiscal dysfunction" in the state. By preventing the legislature from functioning effectively, they argue, TABOR violates the Guarantee Clause and a closely-related clause in the Colorado Enabling Act of 1875. (The Colorado Enabling Act admitted Colorado to the Union on the condition that it form a constitution that was "republican in form.")

Photo credit: The Colorado Statesman, 5/27/2011

Historically, Guarantee Clause-based challenges have not fared well in the courts. In Luther v. Borden (1849), the U.S. Supreme Court dismissed a Guarantee Clause-based claim as a 'political question,' to be settled by Congress rather than the courts. With a few early exceptions [see, for example, Minor v. Happersett (1875)], this 'political question doctrine' has been the standard ever since. Justices routinely invoke the doctrine to rule Guarantee Clause cases 'nonjudiciable,' or not decidable by the courts.