The Thicket at State Legislatures

Fire Alarms and Police Patrols: Two Approaches to Legislative Oversight

by Karl Kurtz

American legislatures don't devote enough time or attention to legislative oversight. That's a nearly universal complaint about both Congress and state legislatures. Legislative surveillance and control of the executive branch is hard work, not very rewarding and not something that legislators can easily take credit for, say the critics by way of explanation for the neglect of this function.

But that's a one-dimensional view of legislative oversight, according to University of California Berkeley Professor Bruce Cain in testimony before California Assembly and Senate select committees on improving state government last week. Bruce was drawing on a distinction between police patrol oversight and fire alarm oversight, terms coined in the 1980s by political scientists Matthew McCubbins and Thomas Schwartz.

Police patrol oversight, like its namesake, is the routine work of "patrolling" the executive branch looking for problems in program implementation. It is usually centralized in a legislature in an audit or program review committee with a staff agency that evaluates the performance of executive agencies. It relies on formal committee hearings on agency operations and on interim studies and reports on legislative performance. Police patrol oversight is usually initiated by the legislature and tends to be formal and systematic.

Fire alarm oversight of executive programs by legislatures occurs when interest groups complain about how programs are administered, the media expose programmatic waste or abuse, or constituents report problems with government services that reveal flaws in program design or implementation. It is highly decentralized, relies on outside actors to "sound an alarm", and is less than systematic.

"My bills were my babies. I loved them all"

by Karl Kurtz

In the middle of a day-long joint hearing by California's recently appointed Assembly and Senate select committees on improving state government, Bob Naylor, a former Assembly minority (Republican) leader, said, "This is the best prolonged discussion of the legislative process, in which members have stayed attentive, that I have ever seen in California."  Fifteen members were present for most of the day and asked challenging and interesting questions of a dozen or so panelists.

The most colorful, provocative and occasionally outrageous testimony was given by State Treasurer Bill Lockyer, who was formerly attorney general and president pro tem of the Senate.  A few of his best one-liners:

• Referring to the cumbersome system of checks and balances in American democracy, he said, "We're part of a system that was designed not to work."  See Dan Walters in the Sacramento Bee.
• In relation to a proposal to allow committee chairs to decide which bills would be heard (California has a practice of hearing all bills), he said that he wouldn't want a committee chair to determine which of his bills were heard.  "My bills were my babies.  I loved all of them."
• "As someone who has served both in the legislative and executive branches, I can say that legislative oversight is often unfair to the executive."
• "Maybe we should have graduated limits on bill introductions. You know, first-term members could introduce just a few bills, second-term members a few more, and so on..."
• Referring to the inexperience problem in the Assembly created by term limits and evidence that Assembly committees stop far fewer bills than they did before term limits: "Two-thirds of the bills that come out of the Assembly should never see the light of day....  Stop it, stop it, stop it!  Nancy Reagan was right: You should just say no."

Changing the Rules in the New York Senate

by Karl Kurtz

A couple of weeks ago, a nine-member committee of the New York Senate, which has been working since January, released a report calling for major changes in the way the Senate does business.   

National Journal's Lou Jacobson has written a nice overview of the report from a national perspective.  If you're a subscriber, you can read his story, "Albany Gets Out Its Repair Kit," in its entirety.  On the assumption that most of us are not subscribers, I'll quote from the story at more length than usual, even though the phrase in his lead describing the New York Legislature as "the nation's most dysfunctional" causes me to shudder--a topic for a future post:

ALBANY, N.Y. -- Perhaps only in this city, home of the state Legislature famously derided as the nation's most dysfunctional, do people look at Congress and see an institution they'd like to emulate.

...Congressional committees are "robust," says Andrew Stengel, who co-authored the third in a series of reports by New York University Law School's Brennan Center for Justice that indelibly stamped the New York Legislature as being in total disarray. "The public comes in and testifies; lawmakers do markups. That's the way [Empire State lawmakers] should act," Stengel says.

The Legislature's committees barely meet, the Brennan Center observed, and on the rare occasions that they do, they pass most bills unanimously. The real legislative power lies with the Senate majority leader and the Assembly speaker. Of 191 major bills that the leadership pushed through the Legislature in 2006, just 36 in the Senate and 44 in the Assembly received even a single no vote on the floor....

In late April, a nine-senator panel directed by Stengel released its first recommendations on how to make their chamber more democratic, transparent, efficient, and fair. The bipartisan group called for reducing the number of committees and committee assignments; imposing term limits on committee chairmen and ranking members; requiring senators to be physically present when they cast a vote; mandating that committees check on the executive branch agencies under their jurisdiction; and updating how legislative information is posted online.

"The recommendations represent the most real and substantive change the Senate has seen in decades," says state Sen. David Valesky, the Democrat who co-chairs the panel. In the next few weeks, the Senate will take up those recommendations that it can implement without the approval of the Assembly or the governor, according to a spokeswoman....

Proxy Voting Rare in Legislatures

by Karl Kurtz

"Do you know if your state legislature allows proxy voting on floor votes?  Or committees?  If it IS allowed, do you think it is a matter of tradition or do formal rules specifically allow for it?"  That was the question yesterday on a political scientist's listserv that I subscribe to.  Thanks to my colleague, Brenda Erickson, we have the answers to these questions.

But first it's necessary to define terms.  An article that Brenda wrote 10 years ago uses the more general term "remote voting" for legislators casting votes when they are not present.  There are six categories of remote voting: pairs, proxy, telephone, teleconference, videoconference and computer link.  Proxy voting is a specific form of remote voting in which one member authorizes another to vote on his or her behalf.

Of these different forms of remote voting, the only one that is in extensive use in floor sessions in state legislatures is paired voting. The rules for paired voting differ somewhat from state to state, but most commonly it occurs when a member who is absent from a legislative session arranges in writing in advance with another member to cast votes on opposite sides of an issue.  The effect is to cancel each other's vote out and to allow the absent member to be recorded on the issue.

At the time of Brenda's article (1999) 21 chambers provided for paired voting.  By contrast, 47 chambers had an outright prohibition on remote voting either in session or in committee.

Wait, Let's have Coffee!

by Karl Kurtz

At a workshop for new committee chairs in the Ohio House of Representatives conducted by NCSL a couple of weeks ago, former Tennessee House Majority Leader Kim McMillan told an amusing story that went something like this:

When I was first first elected to the Tennessee House in 1994, I looked very young and was one of only two women in the House, none in the Senate.  In my first year I was appointed to a joint House/Senate committee that required at least three members from each chamber to be present for a quorum.  I was sitting between two male House members.  The senator who was chairing the meeting announced, "We want to get started, but there are only two members and an intern [looking at me] present from the House.  So we'll have to wait.  While we're waiting, I hope that intern can get us some coffee."

I hesitated only a beat and left the room to get the coffee.  I found where it was, poured cups for everyone and carried them back into the committee room.  In the meantime, someone had clued the Senate chair in that I was a member of the House.  As soon as I walked in, he blustered, "A quorum is present.  Let's get started."

I smiled brightly and said, "Wait, let's have coffee before we start!"

McMillan's lesson for committee chairs from this story? Be prepared: Know the members of your committee, even if it's an ad hoc group that doesn't meet regularly.  Among other things, you'll save yourself embarrassment.

McMillan has recently announced an exploratory committee to run for governor of Tennessee in 2010.

Committees Control Bill Introductions in Idaho

by Karl Kurtz

We welcome Boise State University Professor Gary Moncrief, one of the leading political scientists who studies state legislatures (and a good friend), to the blogosphere.  He is an occasional contributor to the Idaho Statesman's blog, Idaho Politics.  Here are portions of his interesting post today, "Idaho has unique process of bill introduction." It's about the power of legislative committees and has some comparative state information:

...The author/sponsor of a piece of legislation has to take his proposed bill (its called an "RS" at this point-stands for "routing slip") to a committee for a cursory review.  This is not a full-blown committee hearing with testimony from lobbyists and agency people.  Instead, the committee usually hears only from the sponsor about the purpose of the proposal and then votes on whether to print it as a bill or not.  Once the committee agrees to have the bill printed, it is introduced and enters the stream of the legislative process.

But the committee does not have to print the bill, and about 30% of all the RS's are never printed and introduced.  This is a highly unusual system; only Connecticut has anything remotely like this (according to my friends at the National Conference of State Legislatures).   In all other states, all the sponsor has to do is give the proposed bill to the Clerk of the House or Senate and the bill is automatically introduced.  But in Idaho, committees can eliminate proposed legislation before it is ever introduced....

[This] means committees in Idaho are given extraordinary power.  The advantage is that the committees are able to get rid of some proposals that probably weren't going to pass anyway.  In a legislature that averages almost 700 bill introductions but only about 80 days in session a year, that's probably a good thing; it keeps the legislature from wasting time on legislation that is dead-on-arrival.  The downside of this system is that some issues just don't get heard.

Posting Committee Handouts Online

by Pam Greenberg

Sen. Steve Urquhart's (Utah) blog posting today about "Newspapers and Informed Citizens" discusses government transparency and the kinds of information available on the Utah Legislature's website. He makes an interesting side point about posting committee testimony online.

Documents handed out to committees or on the floor should be made available on-line. Those “last-minute” documents are intended to sway outcomes, and often do sway outcomes. Thus, they should be open to the public’s examination.

Many of those documents are embarrassingly simplistic and deceptive – intended to stir passions at the time of voting, when it is too late to fact-check the documents’ assertions. If they became part of an open and permanent record, the documents might become more honest and substantive. Or, even if they remain trite and deceptive, they could be used as “smoking guns” for future reform. Someone could later argue, “At the time of the vote, advocates of the law argued X, as you can see here. I now submit clear evidence to show that the argument was false and that advocates had to know it was false at that time the document was circulated.

Relatively few legislatures post committee testimony on websites in part because of the difficulty of obtaining the material from the witnesses/presenters and the staff time necessary to post the documents. Some legislatures also have concerns about posting materials that may be copyrighted (e.g., exhibits and attachments that accompany testimony).

Some of the states that do post committee testimony online include Connecticut, the Hawaii Senate, the Michigan House and Senate, Nevada and North Dakota.

What do you think?

"Majority Technology Leader" to Head Hawaii Senate's Technology Initiatives

by Pam Greenberg

The Hawaii Senate has become the first legislative chamber to have a "Majority Technology Leader."  Hawaii Senate President Colleen Hanabusa created the new leadership position for the 2009 Legislative Session, naming Senator David Ige (photo) to the post.  Ige served as technology liaison for the Senate's paperless initiative in 2007 and led a number of other technology initiatives for the Senate. 

Senator Les Ihara, Jr. gave a presentation on the Senate's paperless project for members of NCSL's Legislative Effectiveness Committee at the recent Fall Forum meeting in Atlanta.  The initiative resulted in a 60 percent reduction in paper, as reported in the Senate Majority Caucus blog. The Senate invested in tablet PCs for each Senator and enhanced wireless capability in conference rooms and the chamber.  During floor sessions, most senators access daily orders of the day via the laptops.  In 2008, the Senate also piloted a paperless project in two committees.  All the committee hearings were managed via interactive agendas on laptops, and almost all paper folders of bills and testimony were eliminated.  In 2009, all committees will be paperless. 

Other states also have taken steps toward going paperless, as reported in a State Legislatures magazine article in 2007.

While the title of majority technology leader is unique among the states, it fits a pattern of the Hawaii Senate using lots of leadership titles.  In addition to technology leader, the Senate leadership web page lists the president, a vice president, majority leader, majority policy leader, majority caucus leader, two majority whips, not to mention a president emeritus.

Lessons for African Politics--and the American Public

by Karl Kurtz

What lessons can Africa draw from the financial crisis in America?  That's the question that Dimeji Bankole, speaker of the Nigerian National Assembly, asked earlier this week in a guest column, "Five Lessons from America," in the Nigerian newspaper, ThisDay.

I happened to read this commentary because I have been in Abuja--along with my NCSL colleague, Corina Eckl, and Wisconsin Legislative Fiscal Bureau director Bob Lang--for the last week conducting a series of workshops on managing committees, budgeting and policy analysis for 120 clerks of the Nigerian National Assembly.

Speaker Bankole said that there were five lessons to be learned from the U.S. financial problems.  The first two were economic lessons (Bankole is an economist): that "markets do fail" and "government cannot afford to fail." 

But the next three were political lessons from the congressional response to the crisis.  I was struck by how similar these latter lessons are to those of NCSL's Trust for Representative Democracy.

E-Mail Privacy?

by Meagan Dorsch

If you send an e-mail to your state legislator, is it public record? What about their response? Do citizens have any privacy rights regarding electronic communications with government officials?

Legislatures are getting more requests for electronic information (e-mail, phone records, etc.). What types of policies are needed for retention of e-mail records?

NCSL delved into this issue at our Legislative Summit in New Orleans. We have highlighted two sessions that might be able to shed a little more light on this issue. Our session on E-Discovery and the Law examines the federal and the NCCUSL uniform rules for electronically stored information. The roundtable discussion on Government E-Mail reviews current laws, policies and court cases.