1At the Thicket, we know legislative junkies. So to help you get your daily fix of news and opinion about legislatures and state politics, here's a bipartisan list of some statehouse blogs. Suggestions?
Let’s say a landowner wants a permit to develop his or her property. State government could approve the permit on the condition that the landowner give state government some of his or her land. But per two previous cases, Nollan and Dolan,there must be an “essential nexus” between a landowner dedicating the land and being denied the permit and “rough proportionality” between the dedication of land and the impact of the development.
Now let’s say state government wants cash instead of land or for the landowner to pay for mitigation related to his or her development. Do Nollan and Dolan apply, and has a “taking” in violation of the Fifth Amendment occurred? And what if the landowner says "no" to the requested cash payment or mitigation and state government issues no permit. Has a “taking” occurred?
The State and Local Legal Center’s (SLLC) amicus brief in Koontz v. St. Johns River Water Management District, which NCSL signed onto, argues the answer to both questions should be "no."
The SLLC’s brief argues that Nollan and Dolan should not apply to permits conditioned on money because, arguably, Nollan and Dolan could apply to public taxation programs. The SLLC’s brief argues also that Nollan and Dolan should not be applied to permit denials because doing so will discourage state and local government from engaging in permit negotiations.
The Supreme Court will hear oral arguments in the case on Jan. 15 and will issue an opinion by June 30.
In our previous post, we ran down four states where we expect to see action on photo ID laws in 2013. Here are seven more states where photo ID will make an appearance.
Montana Representative Ted Washburn has introduced a proposal (HB 108) to limit voter IDs to state-issued and tribal photo ID cards. Under his proposal, non-photo IDs, such as utility bills and bank statements, would no longer be accepted at the polls. Nor would passports or military, veterans or student ID cards. The Republican lawmaker's previous attempt to cull the acceptable ID list (HB 152) ended with a veto from Democratic Governor Brian Schweitzer, who is known for his trademark branding iron vetoes.
In what some are touting as a twist, Democratic Secretary of State Ross Miller is championing a photo ID proposal in Nevada. This move isn't quite as surprising as it seems. Miller's plan – which is modeled on the electronic poll books backed by Minnesota's DFL Governor Mark Dayton and Secretary of State Mark Ritchie – is fundamentally different from traditional photo ID proposals. And Miller seems to see it as a way to forestall enactment of more restrictive ID bills.
In Voter ID: Five Considerations – the lead story in the November / December issue of The Canvass – we predicted that interest in photo voter ID laws would remain high in 2013. This prediction has already been borne out. When we drafted the article, lawmakers in Arkansas, Minnesota and Wisconsin had revived discussion of their states' photo ID proposals. Since then, a number of other states have jumped in the mix. Here's a quick rundown of some recent developments on the photo ID front. We'll be back shortly with the second half of the list.
Republican Representative Bob Lynn's photo ID proposal (HB 162) failed to make it to a vote in Alaska last session, when Democrats and Republicans split control of the Legislature. With Republicans holding their lead in the Alaska House and newly in charge of the state Senate, the proposal is sure to get another airing in 2013. Lynn told the Anchorage Daily News that photo ID will "be one of the first bills we hear."
Last session, then-Representative Bryan King (R) shepherded a photo ID bill (HB 1797) through the Arkansas House only to see it die in committee in the Senate. Though the new session doesn't officially start until mid-January, newly-elected Senator King has already prefiled two photo ID bills: SB 2 would add a photo ID requirement to the Arkansas Code and SJR 1 would place a photo ID amendment on the ballot. King has also called for the creation of a voter fraud investigation unit.
Minnesota voters nixed a photo ID amendment 54 percent to 46 percent in November. The chief architect of the amendment, then-Representative Mary Kiffmeyer, has pledged to keep working for photo ID legislation in her new role as a state senator. The Republican lawmaker is likely to face continued opposition from DFL Governor Mark Dayton, who vetoed photo ID legislation in 2011. She will also have to contend with new DFL majorities in both chambers of the state Legislature.
Due to an unfavorable court ruling and a veto from Democratic Governor Jay Nixon, Missouri Republicans' photo ID amendment drive fell short in 2012. However, they are committed to trying again in the upcoming session. In December, GOP state Senator Will Kraus prefiled a proposal to refer photo ID to the 2014 ballot (SJR 6). Thanks to gains in November, Republicans picked up two-thirds majorities in both chambers of the General Assembly – giving them the numbers to override any future gubernatorial vetoes.
Each year, NCSL's Trust for Representative Democracy collects information about how many legislators participated in the America's Legislators Back to School Program the
previous school year. The program encourages legislators to visit
classrooms and bring civics to life for students all across the country.
About 1,200 state lawmakers participated in the program. The charts
below show the top legislatures and chambers for 2010-11.
Congratulations to the Massachusetts Utah and Virginia senates for obtaining 100 percent participation! tied for the state with the highest percentage of
legislators participating. Utah and Virgnia topped the list when both chambers are combined.
Thanks to all the great legislative staff coordinators in the states who make the America's Legislators Back to School Program possible.
Setting and maintaining effective compensation levels is an important task and goal in any professional organization. More and more, state legislatures are creating formal compensation and classification plans that set out pay ranges for specific jobs. NCSL has played a role in this effort, assisting numerous legislatures with the detailed work required to develop effective pay systems.
NCSL also receives at least one call a week from state legislatures that want data about what other legislatures pay their staff. Presumably, they want these data so they can be sure that their compensation levels are appropriate and competitive. Unfortunately, salary survey data from other legislatures often are not very relevant for this kind analysis. In fact, NCSL discontinued collecting 50-state staff salary data many years ago because: 1) it is extremely difficult to know if a "research analyst" in one state has equivalent duties to a research analyst in another legislature, and 2) capital city job markets are very different from one another and the data has limited value as an analytical tool. For example, a legislative research analyst in Jefferson City is hired from and works in very different economic and job market conditions from a legislative research analyst in Des Moines or Denver or Santa Fe.
NCSL has been encourging state legislatures, therefore, to discount the value of interstate legislative salary data as a comparative benchmark for most positions and instead focus more on salary data collected in relevant "pay markets." These relevant pay markets may be different for different kinds of legislative jobs, but for most state legislatures, local salary data is best. This usually means looking closely at pay rates at state and local government jobs in and near your capital city.
In their book, Compensation, authors George Milkovich and Jerry Newman provide the following guidance for identifying good sources of comparative salary data: "The three factors usually used to determine the relevant labor markets are the occupation (skill/knowledge required), geography (willingness to relocate, commute, or become virtual employees), and competitors (other employers in the same product/service and labor markets)."
Our experience is that geography is a dominant factor when analyzing most legislative labor markets. We have seen very limited evidence that legislatures engage in out-of-state recruiting for new positions and also very few examples of employee movement from one legislature to another. The most significant employment competitor for most state legislatures is the executive branch of government in the same state. The "occupation" factor can also be an important key for selecting relevant comparable data. For example, clerical positions probably can be compared to clerical roles in many different kinds of organizations in the same geographic area. And computer specialists are sought out by a diverse range of employers. For these jobs, it's sometimes useful (but expensive) to go to third party sources of salary data like the Economic Research Institute which offers city-specific salary benchmarks for common job titles. On the other hand, jobs like chief of staff, bill drafting attorney or policy analyst are more specialized to government and sometimes to certain kinds of non-profits or public affairs organizations. In these cases, it's probably best to do original salary survey work to find relevant comparable data.
All of this is to say that setting legislative pay levels is complicated stuff. And here we're just talking about establishing "external" equity with the job market. Good pay plans also have "internal" equity--offering equal pay for equal job value within the workplace. But that's another blog post. Also, legislatures need to consider the total pay package when comparing compensation. Traditionally, but maybe not as much these days, strong benefit packages for legislative employees have somewhat offset the need to maintain strong salary competitiveness. Finally, not all rewards are monetary, a point described in a previous Thicket post on employee motivation. State legislative employment offers a range of powerful intrinsic rewards that may substitute, at some level, for the incentive to make more money.
State legislatures across the country are ramping up for the 2013 session with a focus on preparing new members, new committee chairs and new leaders for another challenging year of debate and policy making. New member orientations, briefings and trainings are taking place in just about every capitol. Operating largely below the radar in each legislature is a cadre of legislative staff--hard-working public servants who make it their business to ensure that the new year gets off to a great start.
Most of us at NCSL work closely with state legislative staff, and we have a special and privileged view into their work and workplaces. We witness their high level of competence, skill, knowledge, education and experience. We are also inspired by their remarkable level of engagement, dedication and loyalty to their work and to the legislative institution. And we know that for many, if not most legislative staff, salary increases and promotions that slowed down or stopped four or five years ago have been slow to return. Yet legislative staff seem to carry on, bringing their talent and passion to each new legislative session.
How do they do this? Or, perhaps, the more appropriate question is why? How do high-functioning professionals like legislative staff find motivation in an era of stagnant pay and benefits?
Dan Pink offers some clues in his book Drive: The Surprising Truth about What Motivates Us. Pink says that research shows that for jobs similar to those held by legislative staff, money only gets you part of the way there. The three keys to motivating and engaging employees, according to Pink, are what he calls Autonomy, Mastery and Purpose. Now, he also adds a caution that money remains important as a motivator, but only up to a point. People need to feel fairly compensated, but beyond that threshold, money's impact on motivation brings declining returns. Beyond the fair pay threshold, employees respond more to the intrinsic
rewards delivered by being self-directed (Autonomy), applying advanced
skills to tough challenges (Mastery) and by making a contribution to a
larger good (Purpose).
Pink has prepared this clever video summary of his book:
I think Pink's analysis explains a lot about why and how legislative staff remain so engaged in their work, even during tough economic times. It also provides staff managers and legislative leaders with three important benchmarks they can use to measure and improve the motivational conditions of their workplaces.
At this time of year, when the focus is appropriately on the members and their needs, maybe a bit of time can be carved out to assess whether staff have what they need to bring their very best efforts to the difficult and challenging tasks ahead. As economic conditions improve, legislatures should check to be sure that their pay levels do not lag behind the local job market. But they also should not ignore, according to Dan Pink, the powerful motivational opportunity presented by promoting and encouraging employee autonomy, mastery and purpose.
Homesteaders, a mural in the Wyoming House of Representatives. Photo credit: Wikipedia
Writing about the New Mexico Capitol in "A Roundhouse of Art," Wendy Underhill says that the Capitol is "a rich repository of the state’s artistic culture and a piece of art itself." She's right, of course, that the Roundhouse in Santa Fe has a marvelous collection of art.
But on a visit to the Wyoming Capitol on Friday, I reflected on how one can say this about the art in so many state capitols. I admired the eight remarkable Allen Tupper True murals in the House and Senate chambers in Cheyenne. These paintings led me to think about the beautiful murals by the same artist in the Colorado Capitol (True is almost certainly the only artist whose works are displayed in three different capitols--add the Missouri Capitol to his credits) and the amazing Thomas Hart Benton murals in the statehouse on the bluff overlooking the Missouri River in Jefferson City.
I'm not sure that taxidermy qualifies as art, but if it does, my favorite piece of state capitol art is the proud, majestic American bison with the baleful stare that stands on the first floor of the Cowboy State Capitol. I can't think of any other symbol in a statehouse that so captures the energy and spirit of its state. Whether it's art or symbol (or both), the bison is the first thing that pops into my mind when I think about the Capitol in Cheyenne.
Last week, Michigan became the 24th state plus Guam to enact laws banning the ability for employers to collect union security duesas a condition of employment—commonly known as “right-to-work” laws.
Michigan’s decision is the latest chapter in a history of right-to-work laws which spans several decades. By the end of 1947, 12 states had enacted right-to-work statutes, and by 2001, 22 states had enacted right-to-work laws. In February 2012, Indiana became the 23rd state to pass right-to-work legislation in more than a decade. In the 2012 state legislative sessions, 21 states considered right-to-work and other union membership legislation. For more information on these and other state legislative labor and collective bargaining bills, visit the NCSL Collective Bargaining Legislation Database.
NCSL state labor policy expert Jeanne Mejeur has commented that opponents and proponents disagree almost entirely on the impact of right-to-work laws on jobs, wages and the economy. “About the only area of agreement is that right-to-work states tend to have much lower rates of union membership,” wrote Mejeur in a May 2012 report on state right-to-work laws. “The 17 states with the lowest levels of union membership are all right-to-work states.”
Union security agreements are collective bargaining provisions that require employees to either join a union or contribute dues to the union to cover the union’s collective bargaining activities. Under the federal National Labor Relations Act (NLRA), employers and unions are permitted to include union security dues in collective bargaining agreements. However, in 1947, Congress passed the Taft-Hartley Act, which amended NLRA to grant states the authority to supersede federal statutes with their own laws on union security agreements, paving the way for state-based right to work laws.
While the framework for labor law has been established by the federal government, states do maintain great authority over the laws that regulate collective bargaining within their own borders. However, federal lawmakers have made several attempts to limit state authority over labor matters such as right-to-work. For example, in the current 112th Congress several provisions have been introduced to abolish union security agreements nationally, such as the National Right to Work Act (S.2173/H.R. 2040) or to remove the language in the Taft-Hartley Act that permits states to implement their own right-to-work statutes (H.R. 2775).
Although it is unlikely that any of these bills will see significant action before the end of the year, it is likely that there will be increased congressional attention to right-to-work and or union security agreement legislation in the 113th Congress, particularly as state legislatures continue to consider such issues in their own bodies.
Most Supreme Court cases cannot be neatly summarized by clever clichés. But the fox guarding the henhouse is both a vivid and accurate description of City of Arlington & Cable, Telecommunications, and Technology Committee v. FCC.
First, a little background: The Telecommunications Act of 1996 requires state and local governments to respond to requests to place, construct, or modify personal wireless service facilities within a “reasonable period of time.” The Federal Communications Commission (FCC) interpreted a “reasonable period of time” as being 90 to 150 days.
The City of Arlington argued that the FCC lacked statutory authority to interpret this language. The FCC disagreed and claimed that its interpretation of its jurisdiction is subject to deferential review under Chevron v. NRDC. The Fifth Circuit, relying on past circuit court precedent, applied Chevron deference to the FCC’s interpretation of its own statutory authority under the Telecommunications Act and concluded, not surprisingly, that the FCC had jurisdiction to interpret a “reasonable period of time.”
So the issue the Supreme Court will decide in this case is whether courts should defer to a federal agency’s determination that it has authority to interpret a statute.
Now, back to the fox and the henhouse. If an agency (fox) wants to interpret a statute (enter the henhouse) of course it is going to say it has the authority to do so. And if a court must defer to its conclusion that it has such authority well...hens beware!
The State and Local Legal Center’s amicus curiae brief argues, among other things, that state and local governments are often regulated by federal agencies and often regulate the same subject matter as federal agencies. As a result, allowing federal agencies to determine the scope of their own jurisdiction, with only deferential review by courts, would allow federal agencies to encroach upon the authority of state and local governments, as illustrated by this case. NCSL signed onto the SLLC’s brief.
Oral argument will be heard in this case on January 16, 2013. The Supreme Court will issue an opinion in this case by June 30, 2013.
Medicaid was the show-stopper in the Supreme Court’s last term. The Court unexpectedly held in the Patient Protection and Affordable Care Act (PPACA) case that requiring states to participate in the Medicaid expansion was unconstitutionally coercive.
Medicaid apparently was still on the Justices’ minds three months later when the Court, on its first day back in session, decided to hear another Medicaid case, albeit a much lower profile case.
Medicaid allows states to collect medical expenses from a Medicaid recipient who recovers from a tortfeasor (someone who has injured another). But how much can a state collect when a Medicaid recipient agrees to a lump sum settlement from tortfeasor, and it is unclear how much of the settlement is for medical expenses?
A North Carolina statute purports to answer this question by allowing the state to recover the lesser of actual medical expenses or one-third of a Medicaid recipient’s total tort settlement. In Delia v. E.M.A. the state paid $1.9 million on behalf of E.M.A., and her parents settled a medical malpractice claim for $2.8 million. The settlement didn’t allocate between medical expenses and other damages so the state asked for one-third of the settlement, over E.M.A.’s parents’ objections. The question the Supreme Court must answer in Delia v. E.M.A. is whether Medicaid preempts North Carolina’s statute.
The State and Local Legal Center (SLLC) filed an amicus curiae brief with the Supreme Court, which NCSL signed onto. The SLLC’s brief argues that Medicaid is a huge expense for states and that Medicaid grants states substantial discretion in how they pursue recovery from tortfeasors. The brief points out North Carolina’s statute encourages parties to allocate settlements and avoids states having to participate in burdensome settlement discussions or post-settlement allocation hearings. The brief also argues that allowing Medicaid recipients to keep two-thirds of their tort settlement is reasonable and fair.
Oral argument will be heard in this case on January 8, 2013. The Supreme Court will issue an opinion in this case by June 30, 2013.
