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.

"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."

Of Rituals, Swords and Cod: More Symbols of Authority

by Kae Warnock

We human beings carry out a significant portion of our lives on the basis of little rituals. Birthdays are celebrated with candles on the cake, toasts are offered at wedding receptions, and commencement ceremonies are held for graduations.  So it should come as no surprise that legislatures also observe rituals and use symbols to mark the beginning and the end of the legislative session.

The mace is probably the most common symbol in the Anglo-parliamentary world, but other legislative chambers have their own unique practices.

The South Carolina House sergeant-at-arms, dressed in a black suit and tie and wearing white gloves, removes the golden ceremonial mace from its glass-fronted vault and places it in a special rack on the front of the podium. Across the hall, the Senate sergeant-at-arms, similarly dressed, stands outside the chamber. In his right hand is the sword of state. The reading clerk bangs the gavel three times and announces “Members and guests will please rise as we receive our distinguished President”. The sergeant-at-arms carries the sword and leads the lieutenant governor (who is wearing a purple robe) to the front of the chamber. The sergeant at arms places the sword in its cradle on the Senate rostrum and large lamps light up on both ends of the desk.

The South Carolina sword of state is first mentioned in the 1704 Journal of the Commons House of Assembly of South Carolina when it was purchased for the governor.  The original sword was stolen in 1941 and was never recovered. The current sword was presented to the Senate in 1941 as a personal gift from Lord Halifax, former British ambassador to the United States. To learn more about South Carolina's traditions, see "Seals, Flags, House and Senate Emblems."

How a Bill Really Becomes a Law, Part 2

by Karl Kurtz

Ever dissatisfied by those textbook cartoons that show the formal stages of the legislative process, I'm always on the lookout for new imagery of how the lawmaking process really works (see "How a Bill REALLY Becomes a Law").  The senators' lounge off the floor of the Virginia Senate is filled with art by Virginia artists.  The senators' favorite, according to Senate Clerk Susan Clarke Schaar, is a Jackson-Pollock-like painting by a teenage artist from Midlothian, Ben Barnes. "It's because they think it shows how bills become laws in Virginia," she says.

College Completion Rates: Room for Improvement

by Brenda Bautsch

When you compare higher education completion rates in the United States to the rest of the world, we fall behind. But that hasn't always been the case.

The National Conference of State Legislatures recently held the 6th annual Higher Education Institute in Denver, Colorado. Improving college completion was the focus of the two day meeting with legislators from across the country.

David Longanecker, president of the Western Interstate Commission for Higher Education, attended the meeting and provided some great insight into what states can do to graduate more students from college.

In this edition of the Buzz, I sat down with Mr. Longanecker to get his perspective on how the United States can once again lead the world in the number of adults with college degrees. He says it's a goal we cannot accomplish by relying just on high school graduates—we must also focus on adult education. Longanecker also talks about performance-based funding and why he thinks this might help legislatures and states boost the number of students who finish college.

Listen to the podcast (4:41) and let us know if your state is making higher education a priority.

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.

California Reform in the Works?

In the wake of massive budget deficits in California, a number of groups are calling for government reforms as reported by the Los Angeles Times. The reforms range from changes in budgeting practices to a state constitutional convention. Others call for a change to the super-majority requirement for passing the budget or making the Legislature part time. There seems to be a growing sense that the government needs some real repairs.

New Episode in New York Senate

by Karl Kurtz

In an ongoing saga, the New York Senate is now tied, 31-31, as one of the two dissident Democrats who last week went over to the Republican side and change control of the Senate has returned to the Democratic fold.  Republicans claim that Sen. Pedro Espada, Jr. was elected president pro tem last week and that he will remain in that office until there are 32 votes to remove him.  Democrats say that the Espada/Republican takeover was illegal and that Sen. Malcolm Smith remains the pro tem and majority leader.  A judge will decide.

Part of the deal that returned the dissident, Sen. Hiram Monserrate to the Democratic side was that Sen. Smith be replaced as the leader of the Democratic conference.  Sen. John Sampson (photo) has now taken over that role, but Democrats must say that Sen. Smith retains the title of president pro tem in order to have standing in the litigation over the matter.  The current situation is summarized in a story in the Buffalo News with a somewhat melodramatic lead:

New York State is in the throes of a constitutional crisis, with the State Senate having fallen into further disorder after Monday’s decision by a Queens Democrat to flip his allegiances back from last week’s GOP-led coup — creating a 31-31 tie that creates gridlock.

The historic dispute, heightened by the state’s not having a lieutenant governor to break ties, creates a muddled future for how legislation will weave through the partisan-divided Senate—a situation that could remain until the fall elections in 2010.

NCSL's report on what has happened in tied chambers in other states is getting a good deal of attention in New York, although sometimes without giving us credit.  A tied chamber with a vacancy in the office of lieutenant governor makes the issue of whether the president pro tem could vote twice--once as a senator and once as acting lieutenant governor--a real one.  We provided a comparative perspective in anticipation of this scenario a year ago in "A Senator who can Vote Twice?".

Photo credit: (Paul Buckowski / Times Union)

Reliving California Assembly Coalitions

by Karl Kurtz

The coalition formed in the New York Senate yesterday is so reminiscent of the California Assembly in 1995 that it led me to reconstruct the California history. It's a fascinating story of political reward and punishment, even 14 years later. Here is a short chronology, taken primarily from a summary in Alan Rosenthal's, The Decline of Representative Democracy:

1. After the November 1994 elections, the Republicans hold a 41-39 majority over the Democrats. But one of the Republican Assembly members, Richard Mountjoy, is also elected to the Senate in a special election held on the same day. In an organizing session in December, the initial vote for speaker is 40-40 between 14-year incumbent Speaker Willie Brown (photo) and the previous minority leader, Jim Brulte, because one Republican, Paul Horcher, votes with the Democrats. With Brown in the chair—not as speaker but as senior member of the Assembly—the Assembly votes 40-39 not to allow Mountjoy to vote in the Assembly because he is now a member of the Senate. Mountjoy is not allowed to vote on this motion. Brown is then elected speaker on another 40-39 vote. Horcher gets a committee chairmanship.
2. Outraged Republicans boycott the sessions, thereby denying a quorum of 41 votes and preventing any business from being done. They mount a recall campaign against Horcher. The recall campaign is successful and Horcher is replaced by another Republican (under California recall rules, a successor is on the ballot and automatically elected if the recall prevails).
3. In June 1995 Brown steps down as speaker, but organizes the Democrats to elect another renegade Republican, Doris Allen, as speaker on a 40-39 vote. Allen was smarting because her Republican colleagues had opposed her in a primary election for a state Senate seat, which she had lost. After Allen is elected speaker, Brown becomes minority leader and takes over Brulte's office. Brulte is assigned to Horcher's old office.
4. In September 1995, Allen steps down as speaker because of the pressure, but the Democrats elect still another dissident Republican, Brian Sentencich, as speaker on a 41-39 vote—the 39 Democrats plus Allen and Sentencich.
5. In November 1995 Allen is recalled. In December 1995, Brown is elected mayor of San Francisco and resigns his Assembly seat. Republicans finally elect one of their own, Curt Pringle (photo), to be speaker in January 1996. He serves for one year until Democrats retake control of the Assembly in the November 1996 election. In June 1996 Sentencich loses a Republican primary for reelection to the Assembly.

Photo credit: Willie Brown by Rich Pedroncelli in James Richardson, "Willie Brown: The Members' Speaker."