The Thicket at State Legislatures

Footnote on the New York Senate Gay Marriage Bill

by Karl Kurtz

From a legislative junkie's viewpoint, one of the most interesting aspects of the surprisingly one-sided rejection by the New York Senate of a gay marriage bill on Wednesday this week was this comment in the New York Times:

It is rare for legislation to reach the floor in Albany when passage is not all but assured. And initially, gay rights advocates resisted bringing this bill to a vote, fearing the consequences of a defeat. But they shifted that strategy over time, becoming convinced that an up or down vote was necessary so they could finally know which senators supported the bill.

New York Sen. Diane Savino makes a similar comment about the rarity of bills coming to the floor without assurance of passage in a YouTube video of her remarks on the bill.  The Times story does a good job of explaining some of the complex politics of this bill that led to a situation in which senators' positions were not well known and that the outcome on the floor was uncertain.

Is the New York Senate unique in bringing to the floor only bills that will pass? I can't answer this question definitively.  My guess is that New York is at one end of a continuum in this regard but that it is not unique.  Factors that are likely to affect whether the outcome on the floor is predetermined are the powers of the top leadership to control the chamber's agenda, the extent to which the majority caucus takes positions on bills, the importance of the issue and whether it's an up-and-down vote not subject to a lot of amendment or compromise.  In general, the more each of these factors is present, the more likely it is that passage is ensured on the floor.

In the case of the New York Senate vote all four factors were strongly present: It's a chamber with historically strong leadership, the majority caucus maintains tight control, the issue was important and highly visible, and it was a take it or leave it vote.  That's what made the outcome interesting and different.

I checked several scholarly books and didn't find anything relevant on how often bills are defeated on the floor.  Anyone else have comments or observations on this?

State Legislation Opposing Certain Health Reform

by Meagan Dorsch

States have complicated shared power relationship with the federal government in regulating various aspects of the health insurance market and in enacting health reforms.

In this edition of The Buzz, we sit down with Dick Cauchi, program director for NCSL's health program. Dick explains the actions that some states have taken to block certain health care reform.

These are actions that could put states in a binding position, aiming to block mandates that could come from future health care legislation either in their own state or from the federal government. Dick also takes the time to talk about what it could mean for health care down the road in these states and the unique situation in Arizona with its pending constitutional amendment.

Of course some states have been players in health reform since 2003, long before congressional actions on this issue.  

Listen to our podcast (8:06) and turn to NCSL for additional resources on state health reform and federal health reform.

Legislators Serve Military and State

by NCSL Staff

As the United States fights wars in Iraq and Afghanistan, a handful of state legislators are serving in their state's National Guard or Reserve units while holding elected office, according to a new survey from the National Network of Legislators in the Military and the National Conference of State Legislatures.

Currently, 65 state legislators serve in the U.S. military in reserve units or National Guard units. Of those 65 state legislators in the military, 31 have been deployed to another country while also serving in their respective statehouse.

Although there are no federal laws that prohibit state lawmakers from serving on active duty with the military, there are specific requirements for lawmakers who are activated and/or deployed. A Department of Defense directive, revised on Feb. 19, 2008, generally prohibits a full-time military service member on active duty from holding civil office in state government. For reserve members on active duty service for 270 days or less, this directive allows members to hold an elected office "provided there is no interference with the performance of military duties." Since September 11, 2001, increasing numbers of National Guard and Reserve members have been called up for longer and more frequent tours of duty.

Recognizing the difficulties elected officials who are called to active duty may face, state legislators have introduced legislation that addresses maintaining the elected position of the public official.

Enacted this year, Arkansas specified that an elected official retains the public office upon returning from active military duty. In 2008, Louisiana allowed for temporary successors to be appointed if a legislator is called to active duty for more than 180 days and Maine exempted National Guard members from the law prohibiting an unclassified employee of the executive branch from being a candidate for elective office in a partisan public election.

In 2004, Indiana established a procedure for an elected office to take a leave of absence when called to active duty and for the appointment of a person to temporarily perform the officeholder’s duties during the leave. Click here to review the 2003-2009 state legislation.

For more information on state legislators serving in the military, read NCSL press release.

The Fiscal Outlook for Higher Education

by Brenda Bautsch

2009 was a tough year for states in terms of funding higher education, and 2010 does not look any better.

The recession has made fiscal conditions worse in the states, and while the federal stimulus funds have helped, states know that those funds will end soon. According to Joni Finney, Vice President on the National Center of Public Policy on Higher Education and a professor at practice at the University of Pennsylvania, most states do not have a plan for funding higher education in the long term.

In this edition of the Buzz, we sit down with Professor Finney to talk about hope for the future. Finney says it is going to take leadership to make sure that states have a plan to fund higher education in the long term. She also says thinking outside of the box might help states find a solution in these unprecedented times.

Listen to this podcast and our other podcasts on college completion rates with David Longanecker and federal policies and programs with the Deputy Under Secretary of Education.

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.

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.

Unusual News Day for Legislative Junkies

by Karl Kurtz

It's unusual when I find more than one or two stories, excluding ones on Congress, in a newspaper in one day that I mentally file in the legislative junkie category--i.e., potential fodder for The Thicket.  The New York Times, which often has trouble covering its own state legislature in Albany, has five stories of interest today on legislatures in other states or countries, only one of which made it into our NCSL daily clipping service, Grasscatcher:

• A front page story on reactions to California voters' rejection of ballot proposals to implement the Legislature's budget deal and the resulting challenges facing the governor and legislative leaders.  There have been lots of stories on this subject, which is why we haven't covered it in The Thicket.  The angle that interested me in this story was the growing momentum for a constitutional convention in California.  It would be the first in that state since 1878-79.  Many seem to feel that a convention would be the best way to repair both the state's budget process and the mess of amendments that have been placed in the constitution by ballot initiatives.  See also today's Los Angeles Times editorial, "California needs a constitutional convention."
• A story, "Bill to Ease Rules on Development Divides Floridians," about the Florida Legislature's action, now awaiting Gov. Charlie Crist's signature, that would make residential development easier for builders.  Environmental groups that oppose the bill are urging the governor to veto it.
• "Setback to Gay Marriage in New Hampshire," which describes the Granite State House's action to reject amendments to a previously approved gay marriage bill designed to obtain Gov. John Lynch's approval.  The bill will now go back to a conference committee for further efforts to reconcile differences.  This is another story that has received a lot of national attention.
• A news note in the international section about two members of the British House of Lords (true junkies are hooked on legislatures wherever they may be) who were suspended for taking cash to amend bills.  The story notes that "the last recorded suspension of a peer was Viscount Savile [photo], who was barred by Parliament in 1642 for siding with King Charles I at the time of the English civil war."  How many American legislatures can say that the last member ousted from the body was in the 19th century, much less the 17th?
• And finally, an unusual editorial, "Poor, Poor Parliament," about the sorry scandal in the British House of Commons over members' misuse of expense reimbursements.  The editorial concludes with:

Members do have a legitimate compliant [sic] that they are paid too little: less than $100,000 a year, compared with about $170,000 for a member of the United States Congress. Britain’s taxpayers want changes. They want to make Parliament’s doings more open, which is a good thing. They also want to cut out these fat and far too easily abused expense accounts. That’s good too. But they will also have to find a way to pay their representatives a better wage. [Emphasis added]

Death Penalty is Still an Issue for State Legislatures

by Meagan Dorsch

New Mexico has become the most recent state to abolish its death penalty. This brings the total number of states with the death penalty to 35. New Mexico is the second state to abolish capital punishment since the death penalty was reinstated in 1976; New Jersey did so in December, 2007.

A little more than a year ago, we sat down with NCSL's Sarah Hammond, to discuss the activity surrounding the death penalty at the federal level. While there was a narrowing of the death penalty in recent years at the federal level, the majority of activity this year was seen in the states. Eight states total introduced measures to abolish the death penalty during the 2009 legislative session.

Listen to our podcast (8:49) to learn some of the factors states might be considering when proposing legislation to abolish the death penalty, what happens if a states does change their law on capital punishment and why the federal government has said they have taken some of their leads on this issue from states.

"We came from beans, we can go back to beans."

by Karl Kurtz

Yesterday, as part of its series on the children of immigrants, NPR profiled California State Senator Abel Maldonado, who is one of the Republicans who broke with his party to cast the necessary votes to break California's budget impasse last month.  The story is one of three interesting articles about this legislator that I have read in the last month.

The NPR story begins:

In California, it can be tough to be a Republican. Tougher still if you're one who voted for the huge tax hike your party opposed. That's how state Sen. Abel Maldonado went from rising star to marked man in the GOP.

Maldonado was born in Santa Maria, but has stayed close to his Mexican roots. His family has a saying: "We came from beans, we can go back to beans," he says. His father never lets him forget the family's humble Mexican roots. Abel Sr. was a poor farmhand who came to central California on a World War II-era temporary worker program. The family spent years struggling.

The story goes on to discuss the price that Sen. Maldonado is likely to pay within his own party for his vote on the budget. It also references his hope that the vote might actually help him capture moderate Republican and Democratic votes if he runs for other offices.  But NPR didn't provide the crucial detail (for legislative junkies at least) about how Sen. Maldonado demanded that a constitutional amendment to create a blanket primary (in which all candidates of both parties run in the same primary) be placed on the ballot in return for his vote in favor of the budget. 

Texting While Driving Can Spell D-A-N-G-E-R

by Meagan Dorsch

The popularity and availability of cellular phone technology make it possible for anyone, anywhere, to be connected. In June 2005, about 57.2 billion text messages were sent in the United States. By 2008, that number skyrocketed to 600.5 billion. Many are concerned, however, that
sending text messages while driving is a traffic safety danger.

The National Highway Traffic Safety Administration (NHTSA) and the Virginia Tech Transportation Institute say driver inattention is the leading factor in most crashes and near-crashes. Because texting while driving is a relatively new activity, few studies have attempted to measure the distraction it causes.

Nationwide Mutual Insurance conducted a survey of 1,500 drivers. Nearly 40 percent of the teenagers and young adults surveyed admitted they send and receive text messages while driving. In the same study, 45 percent of all people surveyed reported they have nearly been hit by someone using a cell phone.

As of January 2009, eight states prohibit all drivers from texting while driving.

In this edition of The Buzz, we talk with Anne Teigen, transportation policy expert at the National Conference of State Legislatures about the dangers of texting while driving. Listen to our podcast (6:40) and learn why this type of distracted driving is catching the eye of law enforcement and legislatures.