The Thicket at State Legislatures

Delegate Jameson Testifies on Nuclear Waste Storage and Disposal before U.S. Senate Committee

By Melanie Condon

Delegate Sally Young Jameson of Maryland testifying before the U.S. Senate Energy and Natural Resources Committee.

On July 30, Delegate Sally Young Jameson of Maryland testified on behalf of NCSL before the U.S. Senate Energy and Natural Resources Committee to discuss the recently introduced Nuclear Waste Administration Act of 2013 (NWAA), S. 1240. Delegate Jameson, whose Maryland district borders the Calvert Cliffs Nuclear Power Plant, has long been involved with issues of nuclear waste disposal and storage, and has twice provided testimony to the Blue Ribbon Commission on America’s Nuclear Future.

Delegate Jameson’s testimony applauded the bi-partisan work of Senators Wyden, Murkowski, Feinstein and Alexander to move comprehensive policy on the permanent disposal of spent nuclear fuel forward. In her testimony, Delegate Jameson noted the consent-based approach with state and local governments throughout the disposal siting processes.

Although the process has generally been positive, Jameson pointed out how important it is for state legislatures to be involved. Specifically, Delegate Jameson suggested adding the phrase “presiding officer of each legislative chamber” to the bill’s current language of “Governor or duly authorized official of the state.”

Also testifying before the Committee was newly confirmed U.S. Secretary of Energy Ernest Moniz. Secretary Moniz noted that, in his opinion, one of the most important pieces of the NWAA is the consent-based approach of working with state, local and tribal governments throughout the waste disposal life-cycle, saying that the legislation wouldn’t be workable without state consent.

The NCSL Natural Resources and Infrastructure Committee will be holding a session, moderated by Delegate Jameson, on the future of the NWAA and nuclear waste storage at the upcoming Legislative Summit in Atlanta on August 13.

Melanie Condon is a policy associate for the Agriculture, Energy, Environment and Transportation Committee in NCSL’s Washington, D.C. office.

Vital Statistics on Congress Available Online

By Karl Kurtz

Anyone who has ever done comparative research on American legislatures, especially the Congress, has relied on the "Vital Statistics on Congress" published every two years by Thomas E. Mann of the Brooking Institution, Norman Ornstein of AEI and Michael Malbin of the Campaign Finance Institute. That trio, along with Andrew Rugg, have now released a free, online version of this invaluable volume on the Brookings website. Here's an excerpt from their announcement, followed by a short video with highlights of this edition:

Vital Statistics’ purpose has always been to collect useful data on our first branch of government – in the election and composition of its membership as well as its formal procedure, such as the use of the filibuster, informal norms, party structure and staff. This dataset also documents the increasing polarization of Congress and the demographics of those who serve in the U.S. Senate and U.S. House of Representatives.

Over the years, we’ve received innumerable requests for updated versions of the chapters in between printings of the published book. We heard you and have now changed the way we present Vital Statistics’ data: We’ve put the book online, making each chapter available online as a collection of spreadsheets for download at no cost. This new interactive format allows us to update and correct the data more frequently and make it accessible to anyone interested in learning about Congress. We’ve formatted the tables so that each is both printer-friendly and read-writable.

This is a great contribution to legislative studies. Thanks, Tom, Norm and Mike!

Clever Political Ads

By Karl Kurtz

Sabato's Crystal Ball features "10 classic political ads that 2014 candidates should (or shouldn’t) copy". All of them are clever and engaging. A few were successful. My favorites (maintaining strict multi-partisanship) are "Fast Paced Paul" Wellstone's 1990 insurgent campaign ad against incumbent U.S. Sen. Rudy Boschwitz (R-Minn.), Republican challenger Florence Sullivan's ad depicting U.S. Sen. Daniel Patrick Moynihan riding a fence as "The Great Straddler" in 1982, and independent Jesse Ventura's "Action Figure" making fun of his own background as a professional wrestler in the 1998 Minnesota governor's race.

The U.S. Senate Without the 17th Amendment

By Karl Kurtz

Jeopardy quiz:To gain the majority in the Illinois General Assembly in 1858. Read below the jump to find the question.

If the 17th Amendment had not been passed and U.S. senators were still chosen by state legislatures, the Senate likely would have been tied, 50-50, at the start of the current (113th) Congress. After the death of New Jersey Sen. Frank Lautenberg (D) last month and Gov. Chris Christie's appointment of Jeff Chiesa (R) to replace him, Republicans would have a 51-49 margin in the Senate.

I was inspired to make this calculation by this year's 100th anniversary of the 17th Amendment, passed by the Congress in May 1912 and adopted by the states, May 31, 1913. This Amendment to the Constitution took away the power of state legislatures to choose U.S. senators and substituted direct elections by popular vote.

How did I make this hypothetical count? It's not enough to simply count the number of legislatures controlled by each party at one point in time, as the National Constitution Center did in a blog posting that was reproduced in Yahoo News. That method produced this erroneous calculation:

Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority.

This count is wrong for the simple reason that U.S. Senate elections are elected in three classes, ensuring that one-third of the members are elected every two years. Thus, it is necessary to look back at legislative majorities at the time that each senator was elected. It's also important to know that the state legislatures' election of senators took place in joint assembly, meaning that the majority of the total membership, regardless of chamber, prevailed.

So let's go through the calculations. First, the lineup of popularly elected senators by class at the start of the 113th Congress (before Sen. Lautenberg's death and counting the two independents as Democrats):

Elected U.S. Senators (by Class)

And now the lineup if the 17th Amendment had not been enacted:

U.S. Senators if Elected by State Legislatures (by Class) 

Note that there was no net difference in the 2008 class between direct and indirect elections in the number of Democrats and Republican (although the next table shows that eight directly elected senators--four Ds and four Rs--would likely not have been chosen under indirect elections). In 2010 Democrats would have had a net gain of four seats under state legislative elections compared to direct popular vote. But in 2012, Republicans would have picked up nine more seats in the Senate under indirect elections than they did under direct elections.

There are two important assumptions in this count of senators if chosen indirectly by state legislatures. The first is that state legislatures would vote along party lines to select senators of the majority party. Given the finding by Wendy J. Schiller and Charles Stewart III in a recent Brookings monograph that 98 percent of the senators elected between 1871 and 1913 were from the party that controlled the majority in the state legislature, this is a reasonable assumption.

Supreme Court Ruling on Voting Rights Act Explained: Shelby County v. Holder

By Susan Parnas Frederick

The U.S. Supreme Court handed down a 5-4 decision in the closely-watched Voting Rights Act (VRA) case of Shelby v. Holder on Tuesday.

Chief Justice Roberts was joined by Justices Scalia, Kennedy, Thomas and Alito to rule that Section 4 of the VRA is unconstitutional. Justice Ginsberg led the dissent and was joined by Justices Breyer, Sotomayor and Kagan. The Court did not rule on the constitutionality of Section 5 of the VRA. 

Section 4 of the VRA defines which jurisdictions are to be covered under the VRA based on two main criteria: (1) whether the jurisdiction uses discriminatory tests as a prerequisite to voting, and (2) whether it has low voter registration and turnout rates. If a jurisdiction exhibits both criteria, it is covered under Section 5 of the VRA. This section requires covered jurisdictions to submit to the federal government (either the U.S. Department of Justice, Office of Civil Rights, or to a three judge panel in federal court) any proposed changes to its voting laws or procedures for “preclearance.” 

The Court acknowledged that voter discrimination unquestionably still exists in the United States, but determined that the criteria under VRA Section 4, virtually unchanged since the 1960s, is no longer appropriate today. In reaching this conclusion, the Court noted that at the time of enactment, the VRA was intended to be temporary in nature and was set to expire after five years, but was reauthorized for longer periods of time.

The Court then stated that since the date of enactment, the nation has made great strides in eliminating discriminatory practices at the polling place. The Court pointed out that Congress could have used this positive data during any of the VRA’s reauthorizations to modify the coverage provisions of Section 4 to reflect current conditions, but did not do so. 

The Court also focused on the fact that the VRA is an extraordinary piece of legislation with great federalism implications because it takes away the notion of equal sovereignty for states. Some states can pass laws immediately while covered states can only pass the same law by obtaining Section 5 preclearance. The Court concluded that the federalism impact coupled with Congress’ inaction in revising the standards in the VRA’s Section 4 for preclearance required it to strike down Section 4 as unconstitutional. The Court invited Congress to re-draft Section 4 based on current conditions.

Susan Parnas Frederick is Senior Federal Affairs Counsel for NCSL and works in NCSL’s Washington, D.C. office. 

NCSL President-elect Senator Bruce Starr Tells House Subcommittee How MAP-21 is Faring At State Level

By Ben Husch

NCSL President-elect Senator Bruce Starr (R-Ore.) told a House subcommittee on Thursday how the implementation of Moving Ahead for Progress in the 21^st Century Act (MAP-21) is faring at the state level. MAP-21 was enacted in 2012 and governs the funding and authorization of federal surface and transportation spending.

Testifying before the House Transportation and Infrastructure Subcommittee on Highways and Transit, Starr discussed how states are being affected by a number of changes within MAP-21, including the development of national performance measures, program consolidation and the expansion of the Transportation Infrastructure Finance and Innovation Act (TIFIA).

He stressed the need for the federal government to establish a cooperative process through which the performance measures can be crafted. Starr urged the U.S. Department of Transportation to recognize and build off the extensive work states have already completed.

Reporting on states’ satisfaction with program consolidation, Starr explained how it’s allowing states to make it easier for users to acquire funding without having to submit multiple grant applications to multiple programs.  Regarding TIFIA, Starr highlighted how his home state of Oregon is working with the state of Washington to develop a proposal that would increase overall funding for the construction of the I-5 Columbia River Crossing.

During a question-and-answer session with subcommittee members following his testimony, Starr highlighted how states are engaged in numerous efforts to increase funding for transportation programs, ranging from increasing gasoline taxes to indexing current tax rates to implementing new sales taxes. He also urged the committee to look at other forms of funding, including the pilot projects Oregon has taken part in that charge users different amounts based on the number of miles they travel.

The future of transportation will be a major area of focus for the Energy, Transportation and Agriculture Committee next week at the NCSL Spring Forum in Denver, Colorado.

Ben Husch is the committee director of the NCSL Energy, Transportation and Agriculture Committee.

 

Sequestration and the States

By Jon Kuhl

Short of a surprise last-minute deal between the White House and congressional leaders, sequestration will go into effect beginning at midnight Thursday. 

Of the total $85 billion in across-the-board cuts, federal dollars going to the states will be reduced by an estimated $5.8 billion. Considering federal dollars account for 34 percent of total state spending, that’s a lot of money.

In reaction to the impending sequestration, on Tuesday NCSL released a statement highlighting two major state concerns:

1. As all states except Vermont have balanced budget requirements, the continued fiscal uncertainty from Washington makes the state budgeting process near-impossible. If states don’t know how much money is coming from the federal government, how can they plan their budgets for the next year? This is exacerbated by the fact that most states will be wrapping up their legislative sessions within the next few months. States need certainty, and they need it now.

    2.  If the federal government is going to cut the funds it gives to states, it has to give states more flexibility. How can states continue to meet the same standards and requirements with less funds? Reducing federal funds without greater flexibility forces states to cut other programs, increase revenue, or some combination of the two. Cutting funds without granting greater flexibility amounts to shifting the federal deficit onto the states.

Since the statement’s release, it has gotten considerable news coverage, including a Reuters article in The Chicago Tribune.

Earlier this week the White House released numbers on how sequestration will impact the country on a state-by-state basis. The Federal Funds Information for the States (FFIS) organization also has state-by-state breakdowns.

Full- or Part-Time Legislature: Which is Better?

By Karl Kurtz

That's a question I get all the time when I speak to groups, both inside and outside of state capitols, about American legislatures. A recent magazine article featuring my categorization of legislatures as "professionalized," "hybrid" and "citizen" has generated several recent inquiries about which type of legislature is better.

I have an answer to this question, but first a few words about terminology. "Full-" and "part-time" are the common phrases that most people use to differentiate the operations of state legislatures. Political scientists have a fancier term, "professionalization," which measures not only the amount of time that legislators spend on the job but also the compensation of legislators and the number of staff working for the legislature. Professionalization is the concept that I have used to create the categories of legislatures.

The concept of legislative professionalization is designed to measure the capacity of legislatures and legislators to make policy decisions. Capacity, though, does not necessarily mean performance. A legislature with high capacity can perform poorly (Congress being an example), while legislatures with low capacity can perform at high levels.

It's also important to note that the policy-making capacity of a legislature (professionalization) is only one value among others that legislators and voters may set store by when they make decisions about the resources that they provide to their state legislature. One value that might conflict with increasing the capacity of legislatures might be public views about the appropriate scale and cost of state government. A second might be a desire to be governed by citizen legislators who spend most of their lives living and working in their local communities. Like the legendary Roman leader Cincinnatus, who left his farm to fight a war but returned to the plow when the war was over, citizen legislators go to the capitol to legislate for a few months but then return to their home towns.

All of this leads to my answer to the question: Neither one is necessarily better. I believe that the principal goal should be to have a legislature that is an independent and coequal branch of government, able effectively to represent the views of constituents, pass laws, and balance the power of the executive. Different legislatures with different levels of professionalization can accomplish these goals. Each state needs to choose the level of resources (compensation, time and staff) that allows them to meet these goals, within the context of their state's culture, size, complexity and values about government.

I will say, though, that the larger population states that are more socially complex and have necessarily large executive branches are more likely to need greater capacity in order for their legislature to be an independent and coequal branch of government. In other words, to represent its fairly homogenous population of half a million people effectively, Wyoming may not need California's full-time legislators, who are paid close to $100,000 a year and have a staff of more than 2,000 to help govern a state of 38 million people. But Wyoming's citizen legislature, which meets two months of the year, pays its members $12,000 and has a staff of about 40, would find it hard effectively to balance the power of the executive in a state as large and complex as California.

And indeed, that is the path that most states have taken in building the capacity of their legislatures. With only a very few exceptions the states that have the most professionalized legislatures have the largest populations, and the citizen legislatures are in the smallest population states. The hybrid legislatures are in-between, mostly in the medium population states.

Building on a table that appears in Peverill Squire and Gary Moncrief, State Legislatures Today: Politics Under the Domes, here is a summary of the implications of the two extreme levels of professionalization, incorporating some values other than policymaking capacity. The middle column of this table is adapted from Squire and Moncrief's book; the right column is my summary of qualities associated with citizen legislatures (click to enlarge).

The States and the State of the Union

By Jon Kuhl

Throughout President Obama’s State of the Union address last night, he touched on several policy areas where NCSL has played an active role in advancing the interests of the states. The president also spoke about a number of areas where states have led the way. Below are excerpts from the president’s speech followed by information on how NCSL has been active on the issue and information summarizing state action on the issue.

NCSL is pleased to note that both President Obama and Senator Marco Rubio, who gave the Republican response, are former state legislators. President Obama served in the Illinois State Senate from 1997 until 2004, and Senator Rubio served in the Florida House of Representatives from 2000 to 2009. During his last two years in the Florida House, Senator Rubio served as Speaker.

Immigration

Our economy is stronger when we harness the talents and ingenuity of striving, hopeful immigrants.  And right now, leaders from the business, labor, law enforcement, and faith communities all agree that the time has come to pass comprehensive immigration reform. 

Real reform means strong border security, and we can build on the progress my Administration has already made – putting more boots on the southern border than at any time in our history, and reducing illegal crossings to their lowest levels in 40 years. 

Real reform means establishing a responsible pathway to earned citizenship – a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally. 

And real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy.

In other words, we know what needs to be done.  As we speak, bipartisan groups in both chambers are working diligently to draft a bill, and I applaud their efforts.  Now let’s get this done.  Send me a comprehensive immigration reform bill in the next few months, and I will sign it right away.

As a result of the federal government’s inaction on this issue, states have been forced to pick up the tab and responsibility. In the last five years, states have considered thousands of bills related to immigration – over 2,500 in the last two years alone. States have a stake in the outcome of the immigration debate and through NCSL are asking Congress to join with them in supporting comprehensive immigration reform that includes assistance to states for the multitude of services they provide for immigrants.

On Jan. 28, a bipartisan group of U.S. senators, referred to as the “gang of eight,” unveiled a four-page “framework” for comprehensive immigration reform legislation, to be introduced in late-March. Since then, NCSL’s Washington office has met with the offices of several of the eight senators and is working to ensure that states are seen as important stakeholders in the process.

High-Quality Preschool

Trent Lott and Byron Dorgan Lobby for Bipartisanship in Washington

By Alex Fitsimmons

Former Sens. Trent Lott (R-Miss.) and Byron Dorgan (D-N.D.) have been on opposite sides of many political skirmishes over the years. But the senators joined forces Friday to fight for a cause they can both support: bipartisanship.

Addressing a group of more than 200 legislators and legislative staff at the plenary session of the National Conference of State Legislatures’ (NCSL) Fall Forum in Washington, D.C., Lott and Dorgan stressed the importance of reaching across the aisle to address a wide range of issues, from the fiscal cliff to energy reform.

Describing himself as an “incurable optimist,” the former Senate Majority Leader predicted Washington would strike a short-term deal to avert the fiscal cliff, a mix of tax hikes and spending cuts set to take effect at the end of the year. 

"I believe they will get an agreement," said Lott. "It will be minimal. It will be a long punt."

Lott and Dorgan, who co-chair the Energy Project at the Bipartisan Policy Center (BPC), endorsed an “all of the above” approach to energy reform. Each emphasized different aspects of energy policy – Lott pushed for more oil, natural gas, and coal, while Dorgan talked up renewables – but they both recognized the need for a balanced plan that borrows the best ideas from all sides.

“This economic engine that makes things possible in America is fueled by energy,” said Dorgan, adding that the BPC plans to unveil its comprehensive energy strategy this winter.

Taking questions from the audience, the pair identified numerous issues ripe for bipartisan compromise, including tax reform and filibuster reform. On tax reform, Lott believes Congress could tackle the issue by the end of 2013. On the filibuster, both agreed that current Senate rules foster discord, though they urged Congress to be circumspect in making any changes.

 “The lubricant of democracy is compromise,” said Dorgan.