The Thicket at State Legislatures

A Complementarity of Powers

by Karl Kurtz

At a workshop for Algerian parliamentarians last week, our faculty team was emphasizing the separation of powers in the American system of government.  An attorney for the Algerian Council of Nations (Senate) spoke up and said, "In Algeria, we have a complementarity of powers instead of a separation of powers."  In saying this, she was recognizing the strong authority of the executive branch in Algerian government but suggesting that the parliament supplements the work of the executive and makes it more effective.

Her comment was clearly aimed at the Algerian system of government.  But the more I reflected on the "complementarity of powers", the more I liked how the phrase captures much of the reality of the relationship between branches of government in our American separation of powers system. The legislative, executive and judicial branches of government often complement each other, perhaps more than they compete.

Two small examples of ways in which the legislative and executive branches of government collaborate came up in our workshop with the Algerians.  Minnesota Senate counsel Peter Wattson answered a question about the effective date of new laws by saying that Minnesota has a default effective date of August 1 but that executive agencies, bill authors, committees and staff often communicate about the most appropriate effective date and negotiate a change.  Gary Vanlandingham, director of Florida's OPPAGA, pointed out that legislative program reviews of executive agencies are not designed to embarrass the agencies but rather to help them strengthen their programs.

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."

New York Court Gives Governor the Power to Appoint a Lt. Governor

by Karl Kurtz

Yesterday, New York's high court upheld the power of Gov. David Paterson to fill a vacancy in the office of lieutenant governor, created when he himself succeeded from lieutenant governor to governor last year.  Paterson had appointed Richard Ravitch to the position earlier this year, and the Senate Republican leader, Dean Skelos, had filed suit asserting that the governor did not have this power.

From the New York Times summary of the decision:

At issue in the decision and the dissent were two provisions in state law, which could be read as conflicting. One provides that the governor “shall appoint” a person to fill a vacancy in positions for which there is no other provision for the fulfilling the vacancy. The other provides that the temporary president of the State Senate “shall perform all the duties of the lieutenant governor” if the position is vacant.

Judge Lippman wrote that the two provisions “are complementary rather than duplicative” and that the latter provision provides only for “stopgap coverage” of the lieutenant governor’s function and cannot “be understood to state that the vacancy may not be filled.” 

Lower courts had consistently ruled that the governor did not have the power, but in a 4-3 decision the New York Court of Appeals ruled the other way.

Senator Dean G. Skelos of Long Island, the Republican leader in the State Senate, who was the named plaintiff in the suit, said in a statement on Tuesday, “The court has given new power and authority to an unelected governor where no such power had existed under the State Constitution.”

He said Judge Pigott’s premise raised the troubling prospect that an unelected lieutenant governor could become governor and then appoint yet another unelected governor, without needing even confirmation by the State Senate. “The court’s decision to allow the state’s highest offices to be filled with no accountability whatsoever to the public or to their elected representatives in the Legislature, is dangerous to democracy,” Mr. Skelos said.

“One thing is clear — we must change the law,” he said. “We need to clarify the process of filling the office of lieutenant governor to ensure accountability to the people through election or, minimally, Senate confirmation.

Senator John L. Sampson of Brooklyn, the leader of the Democratic conference in the chamber, issued a statement congratulating Mr. Ravitch, saying that “today’s ruling will encourage all parties to end the political rancor and work together to meet the needs of all New Yorkers.”

Vermont Garden

by Meagan Dorsch

My colleague, Bert Waisanen, an avid home gardener, recently discovered what we believe to be the first, and perhaps only, state capitol food garden in Montpelier, Vermont.

Bert discovered the Vermont State House Food Garden as he waited to testify on state taxes at the capitol. It appears the garden was the project for a local advocacy group, with a goal of making Montpelier a more sustainable place to live. The group also hopes to inspire residents to create their own vegetable gardens. You can read more about the project and how it got off the ground in this blog. While he was on-site, Bert's thumb turned green with envy as workers harvested dozens of pounds of fresh greens and vegetables.  

The Vermont program is volunteer based and about a half dozen workers are dedicated to the harvest. All of the food is immediately given to local food banks. The fourth harvest of the year (which Bert was on-site for) produced over 8 lbs of cabbage, 27 lbs of beets and over 3 lbs of beans. All of the food was given to the Bethany Soup Kitchen. It looks like workers planted more kale, collards, broccoli, lettuce, beets and spinach.

The volunteers told Bert their program is the first state capitol food growing program in the US, which began this year. It appears they are correct. I attempted to Google and find other statehouse gardens, but didn't come up with any. We do know the White House has a community garden and a blog to keep track of each harvest.

Each month, Bert turns our NCSL break room into a mini farmer's market to sell fresh jalapenos, peppers, lettuce and tomatoes (I loved the peppers). Harvest time is right around the corner, so let us know if there is another state capitol that is helping to feed the community, or if you are planting the idea for this spring.

The Simpsons--of Wyoming

by Karl Kurtz

Pete and Al Simpson, both in their late 70s, are 3rd generation members of a family with a proud tradition of public service to the state of Wyoming.  Both served in the state legislature, and Al was a U.S. senator (as was his father before him) from 1979 to 1997.  They are known for their wit and humor.

Planet JH Weekly (Jackson Hole) recently interviewed the two of them at length and reported it in "The Simpsons."  Much of the interview is Wyoming-specific, but here are a few gems about legislatures and governing from the story:

On legislating vs. governing:

Al: I couldn’t govern. It would be impossible for me. I couldn’t administer my way out of a paper bag. But I sure could legislate. I learned it in the Wyoming legislature. There’s a craft, a skill to legislating. It’s a sport and I enjoyed it thoroughly but I could never have been a good governor or mayor or anything else.

JHW: Yet you were tapped as a possible VP candidate for Bush in 1988?

Al: My name was in the mix. Pete and I met [George H.W.] Bush in ’62 when our father took over his father’s (Prescott Bush) office. We’re very close. So I called him and said, “I see my name popping up here and there, but go ahead and take my name off the list, George, I don’t want any part of it. I’d be at the funeral of every dead leader in [the world].

Legislator-Constituent Relations in Algeria and the United States

by Karl Kurtz

Most of the differences between the Algerian National Parliament and American legislatures are structural and result in somewhat weaker connections between legislators and their constituents in Algeria compared to the United States.  But the manner in which parliamentarians from both countries communicate with their public is remarkably similar. 

This was the conclusion of a team of 5 American legislators and staff and 2 NCSL staff that conducted a workshop for Algerian parliamentarians in Algiers earlier this summer.  Here are the key structural differences between the two countries' legislative systems:

• The overwhelming majority of American lawmakers are elected from single member districts, but Algerian parliamentarians are elected at large from party lists in multi-member districts in each of 26 regions of the country.  Both multi-member districts and party lists tend to weaken connections between legislators and constituents because elections depend more on the fortunes of the party than on the performance of individual legislators.  The one-to-one relationship of legislator to district in a single member district system encourages effective constituent communication.
• American parties are relatively weak and lacking in cohesion compared to stronger, more cohesive parties in Algeria.  In a weak party system, there is likely to be more of a personal vote for legislators and more incentive to work hard at constituent service as a result.
• In the United States, legislatures are designed to be independent and coequal branches of government, able to balance the power of executives.  In Algeria, the executive branch dominates the legislative branch, so the public is more likely to turn to the executive to solve problems than to the parliament.  Algerian parliamentarians still play an important role as ombudsmen for the public but not to the same extent as in the United States.
• Americans--and American legislators--have far more access to the Internet and other electronic resources than do Algerians.  80 percent of Algerians have cell phones, but very few of them have easy access to computers and the Internet.  The factors that have facilitated increased electronic communication between legislators and constituents in the United States are largely absent in Algeria.
• In America we have a 272 year history of independence and a stable constitution; Algeria has 40 years of history as an independent country.

Racial and Ethnic Minority Governors

by Karl Kurtz

Prof. Chris Mooney of the University of Illinois Springfield has compiled the following list of governors from racial or ethnic minorities. If you know of any others, please add a comment below.

The first one on the list, Pinkney B.S. Pinchback, was one-fourth African-American and served as governor of Louisiana for two months after his predecessor was impeached.  "The Carpet Bagger" provides a lengthy and interesting biography of him.

Name	Party	State	Dates	Heritage
Pinkney B. S. Pinchback	R	LA	1872-1873	African American
Ezequiel Cabeza De Baca	D	NM	1917	Latino
Octaviano Ambrosio Larrazolo	R	NM	1919-1921	Latino
George Ryoichi Ariyoshi	D	HI	1974-1986	Asian American
Jerry Apodaca	D	NM	1975-1979	Latino
Raul H. Castro	D	AZ	1975-1977	Latino
Toney Anaya	D	NM	1983-1987	Latino
John Waihee	D	HI	1986-1994	Hawaiian
Robert Martinez	R	FL	1987-1991	Latino
Douglas L. Wilder	D	VA	1990-1994	African American
Benjamin J. Cayetano	D	HI	1994-2002	Asian American
Gary Locke	D	WA	1997-2005	Asian American
Bill Richardson	D	NM	2003-	Latino
Deval Patrick	D	MA	2007-	African American
Bobby Jindal	R	LA	2008-	Indian American
David A. Paterson	D	NY	2008-	African American

The Overgrown Thicket

by Karl Kurtz

In the last several weeks the brambles and thorns of preparation for NCSL's Legislative Summit, heavy business travel, personal vacation and a major project analyzing a new national opinion poll on attitudes toward democratic institutions have kept us from penetrating The Thicket.  We'll try to beat some new paths and get back on track.

During our hiatus, a few of the newsworthy events that should have appeared in The Thicket include:

• The New York Senate leadership situation seems to have stabilized, and both parties agreed on new rules that increase transparency, place term limits on leaders and committee chairs, and, perhaps most remarkably, provide equal staff resources to senators of both parties.  The rules were issued in a joint statement by Senate President Malcolm Smith, Senate Majority Leader Pedro Espada, Deputy majority Leader Jeff Klein, Conference Leader John Sampson and Minority Leader Dean Skelos.
• The California and Illinois legislatures resolved budget impasses, leaving Arizona, Connecticut, North Carolina and Pennsylvania as the 3 states without budgets after the start of fiscal year 2010.
• National Journal's Lou Jacobson has published a list of "The Six Most Dysfunctional State Governments."  New York, Nevada, Illinois, Alaska, South Carolina and California make the list, which is based on a pseudo-scientific scale that appears to be based on talking to one or two people in each of these states.  The focus is heavily on scandal or malfeasance in the office of the governor.  Media cynicism is rampant in this article, leading with statements like "Of course, ineffective government is the oldest story in the book."

Writing in the Sacramento Bee, Dan Walters has a particularly trenchant summary of the California budget problems:

There are, in the broadest sense, three aspects to the state's chronic fiscal dilemma – societal, financial and political.

AWOL in South Carolina and Elsewhere

In "Sanford's Bigger Sin: Going AWOL," Lou Jacobson of National Journal goes beyond the personal to explore the problem of absentee governors.  It includes similar (though not as extreme) cases and lots of quotes from other states and an NCSL table on gubernatorial succession.