The Thicket at State Legislatures

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.

Transition Strategies from NCSL

NCSL Deputy Executive Director Carl Tubbesing has an interesting take on the stakes for NCSL and state and local government in the presidential transition process in a new edition of The Reflecting Pool.  The article features a congratulatory letter from five legislator officers of NCSL to President-Elect Obama, which begins:

The nation's state legislators and their national organization, the National Conference of State Legislatures, extend our congratulations to you on your election to be the 44th President of the United States. Your experience in the Illinois General Assembly is a point of pride for the nation’s 7382 state legislators, who dedicate themselves to improving the lives of their constituents and to finding creative and responsive solutions to pressing policy challenges. That common experience offers us particular hope for a fruitful relationship with you and the members of your administration over the weeks, months and years ahead.

NCSL has prepared a series of transition memos on key state-federal relations issues.

Movin' on Up: Half of Congress from Statehouses

by Carl Tubbesing

Part of the NCSL state-federal mantra is that half the members of the U.S. Congress once served in a state legislature. That will remain essentially unchanged when the 111th Congress is sworn-in come January. And, with Senator Barrack Obama’s election yesterday, we’ll be able to add that 100 percent of the White House is held by a former state legislator. The last former state legislator elected President was Jimmy Carter, but he served in the Georgia Senate before NCSL’s founding in 1975. Our elections guru, Tim Storey, adds that Senator Obama is the first former member of NCSL to be elected President. 

During the 110th Congress, 272 members of the House and Senate at one time had been state legislators, making former state legislators 50.6 percent of the total. Through retirements and election defeats, 28 of them will not be coming back in January. Twenty-four former state legislators will replace them, dropping their numbers slightly to 268, or 50.1 percent of the total. 

Providing Help to the States

by Michael Bird

Today's New York Times has an editorial that is helpful to the states' cause, "The States Need Help."  Here's the lead:

Wall Street’s crisis is walloping state finances across the country. The most urgent problems are in states — like California — that rely on short-term financing to help pay their bills until tax revenues start coming in later on in the fiscal year. This is about the safest debt on the market. Still, over the past few weeks, states have been shut out of the credit markets like everybody else.

And the conclusion, which we couldn't agree with more:

Washington must step up. To start, the federal government must help states like California and Massachusetts get past their short-term liquidity squeezes. Congress also must prepare a new stimulus bill, with bolstered aid for food stamps and assistance to states and cities so they can continue to provide health care and finance construction and other projects that provide jobs.

NCSL has pushed since summer for a multi-faceted, temporary fiscal assistance program that would include a temporary increased federal Medicaid match, extended unemployment and supplemental Food Stamps benefits, infrastructure grants and increased child support enforcement funding.

Any or all of these ingredients would help states plug budget gaps, protect vulnerable populations or create economic activity and jobs. The House voted 268-154 for such a package--a  strong majority but not enough to overcome a presidential veto threat. The Senate voted 52-44 on a similar package, also a majority but not enough to overcome the Senate's 60-vote procedural hurdles. Senate Majority Leader Harry Reid has stated that the Senate may conduct a lame duck session in mid-November to accommodate another effort at passing a state fiscal assistance package.