The Thicket at State Legislatures

The Bigger Picture

by Brian Weberg

Every now and then I read something that I want to share with my children.  Thomas Friedman's recent op-ed expressing his concerns about the current nature of the American political scene is one such item.  It doesn't matter which side of the political fence you stand on--or if you work hard to straddle that fence trying to understand and appreciate every point of view--Mr. Friedman's observations summarize trends in American politics that we should all ponder and take into account.  For me, he has tapped into something I have felt in my bones, and helped put those feelings into more constructive context.  Here is an excerpt:

The American political system was, as the saying goes, “designed by geniuses so it could be run by idiots.” But a cocktail of political and technological trends have converged in the last decade that are making it possible for the idiots of all political stripes to overwhelm and paralyze the genius of our system.

Those factors are: the wild excess of money in politics; the gerrymandering of political districts, making them permanently Republican or Democratic and erasing the political middle; a 24/7 cable news cycle that makes all politics a daily battle of tactics that overwhelm strategic thinking; and a blogosphere that at its best enriches our debates, adding new checks on the establishment, and at its worst coarsens our debates to a whole new level, giving a new power to anonymous slanderers to send lies around the world. Finally, on top of it all, we now have a permanent presidential campaign that encourages all partisanship, all the time among our leading politicians.

I would argue that together these changes add up to a difference of degree that is a difference in kind — a different kind of American political scene that makes me wonder whether we can seriously discuss serious issues any longer and make decisions on the basis of the national interest.

Friedman causes me to think about the role of states and state legislatures in addressing the "factors" he finds troublesome.  For example, if gerrymandering is a culprit in "what is happening to American politics," then clearly the states are front and center in resolving that issue.  But of course, it's not at all a simple matter. The national political parties and their complicit media outlets have extended their reach aggressively into what were once largely state and local political prerogatives and choices.  Local voices and the civility of the town hall meeting are overwhelmed and perverted by national media cattle calls to action and obstruction by people and interests on both sides of the political fence who have no real connection to the needs and realities on main street. 

If the states are the laboratories of democracy in America, then maybe their leaders and institutions need to stand stronger against the trends identified by Friedman.  The states are, and always have been, the source of new and innovative policy solutions for America.  Perhaps they also must be bulwarks against a creeping over-simplification of complex issues, the over-manipulation of voting district boundaries, the corrosive costs of continuous political campaigning and a coarsening political discourse that collectively act to discourage acts of thoughtful citizenship and paralyze our ability to solve critical social problems. 

State Efforts to Prevent Federal Health Insurance Mandates

An online New York Times story reports on a coordinated effort by conservative state lawmakers and the American Legislative Exchange Council to pass state constitutional amendments that would require people to purchase health insurance.

In more than a dozen statehouses across the country, a small but growing group of lawmakers are pressing for state constitutional amendments that would outlaw a crucial element of the health care plans under discussion in Washington: the requirement that everyone buy insurance or pay a penalty.

Approval of the measures, the lawmakers suggest, would set off a legal battle over the rights of states versus the reach of federal power — an issue that is, for some, central to the current health care debate but also one that has tentacles stretching into a broad range of other matters, including education and drug policy....

So far, the notion has been presented in at least 10 states (though it has already been rejected or left behind in committees in some of them), and lawmakers in four other states have said they will soon offer similar measures in what has grown into [ALEC's] coordinated effort at resistance. (Arizona, which has placed the amendment on its ballot in 2010, seems the furthest along.)

The remainder of the article focuses on efforts to pass state constitutional amendments in Minnesota and Arizona and comments by constitutional scholars on the idea.

Boondoggle: An Innocent Humble Craft

by Karl Kurtz

In "One Person's Boondoggle, Another's Necessity," the New York Times' Michael Cooper explains the derivation of a term that now connotes wasteful governmental projects:

Before it became a bad word, “boondoggle” was an innocent, humble craft. It was the Boy Scouts of America who claimed credit for coining the word, to refer to the plaited leather lanyards that they made and wore around their necks.

That all changed on April 3, 1935, at a hearing in New York City on how New Deal relief money was being spent. A Brooklyn crafts teacher reluctantly testified that he was paid to show the jobless how to make “boon doggles.” The outcry was swift. “$3,187,000 Relief is Spent to Teach Jobless to Play,” trumpeted a front-page headline the next day in The New York Times. “ ‘Boon Doggles’ Made.”

A new, more sinister meaning was born, and the word came to signify government make-work, later referring to wasteful government projects in general. Critics used it to criticize scores of projects, but President Franklin D. Roosevelt took a longer view. “If we can boondoggle ourselves out of this Depression,” Roosevelt said, “that word is going to be enshrined in the hearts of the American people for years to come.”

William Safire's Political Dictionary says that H.L. Mencken is the one who tracked this term back to the Boy Scouts.  But Safire also offers an alternative derivation that was first reported to the New York Times in 1935 by a man who had told the city's Board of Aldermen that "he was paid for teaching 'boondoggles.'  Boon doggles is simply a terrm applied back in the pioneer days to what we call gadgets today...no, it is not named for Daniel Boone...it is spelled differently."

Whatever the origin of the phrase, Cooper's article nicely explains that government projects that are often derided from a distance--like current controversies over federal economic stimulus projects for an airport on an island in Alaska, a skateboard park in Rhode Island and tunnel for turtles in Florida--are viewed as popular and valuable in their local communities.  He delves into the history of some Depression-era WPA projects that were derided at the time but have had long and useful lives.

The article concludes:

Robert D. Leighninger Jr., a sociologist who wrote “Long-Range Public Investment: The Forgotten Legacy of the New Deal” (South Carolina University Press, 2007), recounted the story of a Works Progress Administration official in Arizona who went off in search of boondoggles, and discovered that the towns he visited seemed to like their own projects but questioned those of their neighbors.

“I’ve been hunting all over the state for one, but everywhere I go I’m told it’s in the next county,” the official was quoted as saying in a 1936 newspaper article. “So far I haven’t been able to catch up with a real, live one.”

The Buzz: States Hit a 'Home Run'

by Michelle Blackston

NCSL and states scored a major victory when President Barack Obama released guidelines regarding federal agencies and departments establishing new rules and regulations. The president, in his memo to agency executives, said federal agencies must avoid preempting state laws without a sound legal basis to do so.

In this podcast, Senior Federal Affairs Counsel Michael Bird in the Washington, D.C., office discusses the enormity of this memo and what it means moving forward not only for states, but also for the federal agencies that set regulations. The issue of federal preemption of state laws has been a top 10 policy issue for NCSL and is a big win for states. Listen to our podcast (5:23) and click on "Dateline Washington" at www.ncsl.org for the latest State-Federal news from NCSL.

An Unexpected Benefit of Term Limits

by Karl Kurtz

States with term limits have higher proportions of former state legislators serving in Congress than states without term limits. The national average of former legislators in Congress is 50.5 percent, ranging from 100 percent (of three seats in the U.S. House and Senate) in Montana and Wyoming to zero percent (of five seats) in New Mexico. But among term-limited states the average is 60.7 percent compared to 46.1 percent in non-term-limited states.

I arrived at these numbers by a somewhat circuitous route. Several weeks ago, the Sacramento Bee had an interesting story, "Political merry-go-round diminishes Democrats' clout in Legislature." The premise of the story was that California Democrats are very close to having the two-thirds majorities necessary to approve budgets in both chambers of their Legislature, but they are continually stymied by having vacancies in the Legislature created by legislators moving to other offices. For example, two California members of Congress have been appointed to positions in the Obama Administration. It is likely that current state legislators will run for those seats, causing vacancies in the Legislature. A state senator moving on to another office often creates a vacancy in the Assembly because Assembly members move to the Senate.

What the story does not say is that, from a comparative perspective, California has a unique set of circumstances that exacerbate the problem of musical chairs in the Legislature. First, it is the only state that has more members of Congress (55 including U.S. senators) than it does state senators (40). This means that California state senators who want to move to Congress are especially well-positioned to do so, as they are likely to have already run and won in districts larger than the congressional ones. Second, along with Arkansas and Michigan, California has the most restrictive of all term limits: six years in the Assembly and eight in the Senate and a lifetime ban on any further legislative service. California legislators who want to continue a career in politics have especially strong incentives to run for other offices.

This got me to wondering about the career path from state legislatures to Congress, how the number of former state legislators serving in Congress varies from state to state and what might explain the variation. To get at this, I turned NCSL's list of former legislators serving in Congress into numbers by state.

Federal Law Provides a Floor, not a Ceiling, for State Regulation

by Susan Frederick

The New York Times today labeled a Supreme Court decision in Wyeth v. Levine "one of the most important business cases in years." It was also an important federalism case—one that the states won on a 6-3 ruling.

The details of the case of a Vermont woman whose arm was amputated after she was given an anti-nausea drug using an injection method that led to gangrene are described in the New York Times story. The issue was whether the drug-maker had adequately warned against this injection method. Vermont state courts ruled in favor of the woman, and the drug company, Wyeth, appealed to the Supreme Court.

The key federalism issue was whether FDA regulations preempt conflicting state laws in cases involving a drug company's failure to warn of dangers. The FDA had taken this preemptive stance in a preamble to a 2006 regulation on prescription drug labeling. NCSL had weighed in at the time against the FDA's promulgation of this regulation in a letter to then Health and Human Services Secretary Mike Leavitt citing several valid reasons why the regulation should not go forward:

Memorializing Congress

by Karl Kurtz

In the 10 Congresses from 1987 to 2006, state legislatures submitted an average of 411 memorials to Congress each biennium.  That's about 80 per state over that 20 year period.  The California Legislature memorialized Congress 542 times during that period and Louisiana 375 times, while Connecticut submitted only four memorials.  Events that sparked the memorials included Hurricane Katrina (Louisiana submitted twice as many memorials in 2005-6 as it had in any previous Congress), military base closures and the tobacco settlement.

These are a few of the interesting tidbits that I found, while preparing for an interview with a reporter about the state sovereignty resolutions, in a 2008 paper given at the American Political Science Association by J. Wesley Leckrone and Justin Gollob.

According to the Congressional Research Service:

A memorial is a request, usually from a state legislature, that the Congress take some action, or refrain from taking certain action. Memorials may be addressed to the House or Senate as a whole, to the Speaker or presiding officer of the Senate, or to individual Senators or Representatives. The Senate prints the full text of a memorial in its section of the Congressional Record, while the House only prints the title of a memorial.

The fact that the Senate publishes the text of the memorials allowed Leckrone and Gollob to do a content analysis of over 4,000 memorials from state legislatures.  Their purpose was to try to identify and measure the states' collective agenda for action by Congress.

Other states besides California and Louisiana that submitted more than 200 memorials include Michigan, Hawaii and Pennsylvania.  In addition to Connecticut, states that memorialized Congress fewer than 10 times over this 20 year period were North Carolina and Mississippi.

Why do some states use this process more often than others?  The answers are not entirely clear. 

Congress Doesn't Know State Legislative Procedure

by Karl Kurtz

The federal economic stimulus package (The American Recovery and Reinvestment Act) raises some interesting state legislative procedural questions.  Section 1607 of the Federal Stimulus Bill (HR1) states:

SEC. 1607. (a) CERTIFICATION BY GOVERNOR.—Not later than
45 days after the date of enactment of this Act, for funds provided
to any State or agency thereof, the Governor of the State shall
certify that: (1) the State will request and use funds provided
by this Act; and (2) the funds will be used to create jobs and
promote economic growth.
(b) ACCEPTANCE BY STATE LEGISLATURE.—If funds provided
to any State in any division of this Act are not accepted for use
by the Governor, then acceptance by the State legislature, by means
of the adoption of a concurrent resolution, shall be sufficient to
provide funding to such State.
(c) DISTRIBUTION.—After the adoption of a State legislature’s
concurrent resolution, funding to the State will be for distribution
to local governments, councils of government, public entities, and
public-private entities within the State either by formula or at
the State’s discretion.

Sections (b) and (c) were inserted because of the threat by several governors, led by Gov. Mark Sanford of South Carolina, not to accept funds.  Congress uses both joint resolutions, which must be signed by the president to become law, and concurrent resolutions, which do not go to the President. Presumably, Congress used the term "concurrent resolution" thinking that states have similar rules allowing such resolutions to pass without approval by the governor.  This is indeed the case in South Carolina, the state at which this provision was aimed.

However, the problem is that many states have no provision for "concurrent" resolutions.  As our North Carolina colleague Gerry Cohen points out, the North Carolina Constitution provides for joint resolutions, which do not require the signature of the governor, but contains no references to concurrent resolutions.  Nebraska has a unicameral legislature, so how can it enact a concurrent resolution?  What should state legislatures that don't have concurrent resolutions do?

That's not the only drafting problem in Section 1607.  Paragraph (a) is explicit about the time frame for certification by governors, but it doesn't say anything about the timetable for state legislative certification. Do legislatures have to act within the 45 days?  If so, what if the governor doesn't act one way or another until the 45th day?  Is the legislature out of luck?

NCSL is seeking guidance from the administration on these questions as they develop implementation plans.

All of this may prove to be academic, as the recalcitrant governors now mostly seem to be saying that they will accept all of the funds except for the incentives to the states to make changes to eligibility for unemployment compensation, which were clearly optional and would in any case require state legislative action for states to participate.

As a footnote, NCSL provided Congress and the administration with language that would have eliminated these problems.  Our suggested language would have substituted the word "state" for "governor" in paragraph (a), thereby deferring to each state's practice regarding the appropriation of federal funds.  Unfortunately, congressional drafters did not accept this language.

A rose from The Thicket to Gerry Cohen.

States Assert Sovereignty

by Jan Goehring

At least ten states have filed bills or resolutions asserting state sovereignty under the 10th amendment, according to the Tenth Amendment Center web site. The measures in Arizona (HCR 2024 and SCR 1038), Georgia (HR280), Montana (HB246), Michigan (HCR 4), Missouri (HR 212), New Hampshire (HCR 6), Oklahoma (HJR 1003), South Carolina (H 3509), Texas (HCR 50) and Washington (HJM 4009) generally ask the federal government to stay out of state business and end certain mandates. More states may follow. 

Some states addressed specific issues. Montana's bill, the Firearms Freedom Act, seeks to exempt Montana-made firearms from the commerce clause based on 10th Amendment authority. The Missouri resolution declares the state's sovereignty under the 10th amendment and urges Congress to reject the Freedom of Choice Act that deals with abortion regulations.

The Arizona concurrent resolutions, HCR 2024 and SCR 1038, seek relief from certain federal mandates.  The House resolution reads in part:

Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring, that:

1.   That the State of Arizona hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

2.  That this Resolution serves as notice and demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

3.  That all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

4.  That the Secretary of State of the State of Arizona transmit copies of this resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state's legislature and each Member of Congress from the State of Arizona.

Is this a movement that is gaining traction?  It's easy to introduce resolutions.  Will they pass?

What Does the Stimulus Mean for States?

by Meagan Dorsch

How are states legislatures going to use the stimulus money? Will the governors or legislatures be in charge of distributing the money? How much money did my state get?

These were just some of the questions reporters from across the country asked experts from The National Conference of State Legislatures during a media conference call Wednesday afternoon.

Experts in our Washington DC office took time to explain to reporters what the $787-billion America's Recovery and Reinvestment Act signed by President Barack Obama on Tuesday will mean for states.

NCSL, working on behalf of state lawmakers, pressed Congress and the president to include support for these essential programs and services in the stimulus package. State legislatures are meeting in sessions now to make tough decisions on how to balance their budgets.

Legislators across the country are working on ways to implement the funding expeditiously to help create jobs, fix an aging infrastructure, and avoid reductions to vital programs and services.

Some 43 states are reporting cumulative budget shortfalls of $183 billion for fiscal year 2009, according to findings from NCSL's most recent fiscal survey in January. That gap is expected to balloon to more than $200 billion for fiscal year 2010. Because states are required to balance their budgets each year, the decisions they make to reduce spending and raise taxes have the effect of deepening and prolonging economic downturns. 

Listen to the media call and find out what this economic stimulus package could mean for your state.