The Thicket at State Legislatures

President Signs Child and Family Services Act: A Win for the States

by Alex Fitzsimmons

On September 30, President Obama signed the Child and Family Services Improvement and Innovation Act (P.L. 112-34), having been passed with strong bipartisan support in both houses of Congress. The law, which renews the Department of Health and Human Services’ (HHS) authority to grant child welfare waivers to states, provides states with greater flexibility to meet the needs of vulnerable children. 

“This is great news for states, and for the children who will benefit from the projects,” said Georgia State Senator Renee Unterman. “NCSL pushed hard for this in Washington for several years, and I’m glad Washington got the message.” 

In letters to the House Ways and Means Committee and Senate Finance Committee, NCSL strongly urged Congress to pass the legislation, emphasizing the need to provide states with the flexibility to implement child welfare services that will safely reduce out-of-home placements and improve child outcomes.

The waiver authority encourages a state-federal partnership under which states are pushed to compete for a limited number of HHS waivers: up to ten per year from 2012 to 2014. The waivers, which expired in 2008, last for five years and can be extended at the discretion of the secretary.

NCSL was pleased that the final version of the bill did not include a maintenance of effort requirement that would have precluded many states from participating in the demonstration projects due to fiscal constraints.

In 2008, the Fostering Connections to Success and Increasing Adoptions Act codified into law a set of broad-sweeping reforms aimed at improving safety and permanency programs for foster children. Now, thanks to the Child and Family Services Act, HHS waivers to Title IV-E requirements will empower states to continue to promote safe, permanent outcomes for the country’s most vulnerable children and families.

 Alex Fitzsimmons is a communications intern in NCSL's Washington office.

Fixing Congress

Two items today about strengthening Congress, one noteworthy for what is not being proposed and the other for its succinct, useful list of ideas and sage conclusions.

From the Washington Post on term limits for Congress:

In 1994, the last time there was a conservative grass-roots revolution, term limits were front and center. The Republican-written Contract With America included a vow to hold a vote on a term-limits amendment, and candidates nationwide got mileage out of pledging to back the bill or to limit their own service.

Yet in 2010, neither the Contract From America, endorsed by a host of conservative groups, nor the Pledge to America, written by House Republican leaders, mentioned term limits.

Even as the tea party movement swept the nation with calls to buck the political establishment and elect “citizen-legislators,” term limits were not high on the agenda.

And from the venerable Lee Hamilton, the former member of Congress who directs the Center on Congress, reflecting on the loss of public confidence in the legislative branch:

Removing the roadblocks to institutional effectiveness will take hard work. Congress has gotten its house in order before, however, and it can do so again.

It could start by addressing the filibuster rule, which effectively requires 60 votes in the Senate in order to move most legislation, a formidable hurdle in a closely divided Senate. In the name of efficiency, Congress routinely embraces giant omnibus bills which allow the leadership basically to undermine the deliberation, transparency, and accountability we expect and need in our system; it needs to return to the regular order developed by Congress over many decades.

The country also needs more robust congressional oversight into every nook and cranny of government, and a vigorous ethics system which enforces the basic rule that every member act in such a manner as to reflect credit on the institution.

A Congress seriously interested in effectiveness would pursue procedural fixes to reduce the excessive partisanship that too often paralyzes Capitol Hill. None of them are mysterious: redressing the outsized role of special-interest money in elections; reducing partisan gerrymandering of congressional districts; eliminating closed state primaries, which enable ideological activists to dominate elections; and wringing the intense partisanship of committee staffers out of the legislative process.

Hamilton goes beyond these procedural reforms to bemoan a loss of commitment by members of Congress to "a search for a remedy" (Arthur Schlesinger Jr.'s phrase) and concludes:

It is not hard to find members on the Hill who speak for a defined narrow interest. It is much harder, though not impossible, to find members who search for a remedy, as opposed to a political position. We need more members who reflect the diversity of this great and varied country yet work to bring it together, not tear it asunder.

Turning Congress around will take some effort. But make no mistake. Congress can live up to the faith our Constitution and our democracy place in it. But we, as Americans, have to insist that the people we elect make this a priority. Congress has to want to change, and we as voters have a major role to play in helping to bring that about. 

Inside the Main Street Fairness Act

by Jon Kuhl

On Sept. 9, the California legislature approved a deal with Amazon.com in which the online retailer will begin collecting California sales taxes after September of 2012. The deal is expected to bring in millions of dollars of revenue for the state.

In light of the deal, and the continuing momentum for Congress to pass the Main Street Fairness Act, NCSL’s Neal Osten, in this short video, answers some of the most commonly asked questions about the legislation. 

 

If passed, the Main Street Fairness Act will remove the burdens to interstate commerce that were of concern to the Supreme Court in the 1967 Bellas Hess case and the 1992 Quill v. North Dakota case. Through these cases, the Supreme Court acknowledged consumers owe the sales tax when they purchase goods through catalogs or over the Internet, but ruled states cannot force retailers to collect the tax. This legislation will overturn these decisions and authorize states to collect sales taxes on out-of-state sales.

For more information on Main Street Fairness Act, head to NCSL's website.

Congress back from summer recess; Economy main focus

by Jon Kuhl

Congress is back in session following the August recess. Trumping all issues is the economy. More specifically, Congress is focusing on two questions: How can the government help create more jobs? And, how will the government reduce the national deficit?

As Congress works to answer these questions, NCSL’s federal affairs office in Washington, D.C., is playing an important role in ensuring that the voices of the states are heard. On the question of jobs, NCSL is working to ensure vital funding for infrastructure programs, such as surface transportation and environmental state revolving fund programs. All are critical state economic investments, providing numerous jobs and other benefits.

NCSL also remains committed to protecting the solvency of state budgets. Unfunded and underfunded mandates from the federal government can leave states carrying the lion’s share of the burden. In addition to making sure states aren’t faced with unfair financial burdens from the federal government, NCSL is fighting to get Congress to pass the Main Street Fairness Act. It woulld give states the authority to collect sales taxes on purchases made by remote sellers (online retailers, catalogs, etc.). Looking at a study from the University of Tennessee, in FY 2012 alone, states stand to gain a collective $23.3 billion in revenue.

NCSL’s federal affairs staff in Washington, D.C., engage with federal government officials daily, but NCSL members also play a critical role. On Sept. 21, state legislators on the Federal Deficit Reduction Task Force will be in Washington to meet with members of the Super Committee and other members of Congress. In their meetings on the Hill, task force members will impress upon their federal colleagues the importance of treating the states as partners in reducing the deficit. States expect to share the burden, not carry it alone.

Legislators Adopting Social Media

by Pam Greenberg

The Congressional Management Foundation’s (CMF) has released a new report-- #SocialCongress: Perceptions and Use of Social Media on Capitol Hill--a survey of congressional staffers' attitudes about their offices' use of social media.

The major findings are summarized below and the details in the report are interesting to read.

• Congressional offices are using social media to help gauge public opinion, augmenting traditional tools used for that purpose.
• Congressional offices now include social media among the tools used to communicate Senators' and Representatives' views and activities.
• Younger staffers see more value in social media than their older colleagues.
• Staffers from offices that embrace technology are more likely to see media as a benefit to the office and to believe the Internet has improved the dialogue between citizens and Congress.
• Social media managers have a more positive view of constituent communications than senior managers or staffers who are primarily tasked with answering the mail.
• Many staffers—especially in Democratic offices—feel their office spends too little time on online communications.

My guess is that state legislative staff perceptions may mirror those above.  Another similarity struck me when reading the report’s first paragraph:

Congress is often accused of being slow to adapt. Whether it be through institutional reforms or technological developments, the House and Senate are regularly criticized as being resistant to change. This has not been the case with social media. While congressional offices may lag behind some leading private-sector organizations in their use of Facebook, Twitter and YouTube, the legislative branch has adopted social media much more quickly than it adopted other technologies, such as fax machines, email and websites.

The same is also sometimes said about state legislatures—there’s often a reluctance to be on the “bleeding edge” of technology. But state legislatures, like Congress, may also be adopting social media tools and new devices more quickly than they have in the past.

As members of the National Association of Legislative Technology (NALIT) were discussing plans for sessions at the NCSL Legislative Summit and the NALIT Seminar, they spoke about how social media and consumer devices are game-changers—legislators are no longer relying only on the IT department to supply laptops or develop apps for them, they’re bringing in their own mobile phones and iPads and tablets and downloading apps themselves.  And IT departments are finding ways to adjust—becoming more agile and faster in turnaround on services. Social media trends and the constant roll-out of new consumer devices offer immediate gratification, but the legislative environment is designed to move slowly, so it’s making for an interesting mix.

NCSL has a web page that tracks legislative agencies, committees, offices and caucuses that use social media.  Let us know about any changes or additions, and tell us what you think about how state legislatures are using social media.

How Former State Legislators Voted on the Debt Limit Ceiling

by Karl Kurtz

I was curious about how members of Congress who had state legislative experience voted on the debt ceiling limit. My theory was that members with state legislative experience would have been more likely to vote for the final bill because (a) they have a better appreciation for the value of compromise and (b) they better understand the potential impact of a default on the states.

I looked at former state legislators among the freshman members and across all members of the House. It turns out that former legislators in both categories were less likely than other members to vote for the final bill (FSL=former state legislators):

House of Representatives	Yes	No	% Yes	% No
Freshmen FSL	21	18	54%	46%
All Freshmen	69	30	70%	30%
All FSL	127	90	59%	41%
All	269	161	63%	37%

The differences between how all former state legislators and all House members voted are relatively small, but the ones between the two types of freshmen members are substantial. What explains this? Here are a few ideas that my colleagues and I have come up with:

• Former state legislators know that any single vote is unlikely to influence an election outcome, so they felt more free to vote independently of their leaders.
• Former state legislators have more experience, especially compared to other freshmen, and are less likely to follow their leaders on a vote.
• Former state legislators know good legislation and procedure when they see it, and this was neither. This, of course, implies a value judgment, so we offer it up in The Thicket without endorsement and for whatever interest it might have.
• The vote on the debt ceiling had more to do with politics and ideology than with governing.

A simple variation on the latter explanation is the null hypothesis: that state legislative experience had nothing to do with the outcome of this vote. That seems the likeliest explanation of all.

For more successful correlations of the vote on the debt ceiling with district competitiveness, see Sabato's Crystal Ball and Sarah Binder in The Monkey Cage.

Parliamentary Parties in a Checks and Balances System

by Karl Kurtz

Several weeks ago, I heard the American Enterprise Institute's Norman Ornstein give a very interesting speech about the evolution of Congress over the last several decades to a civics teacher training institute that NCSL cosponsored. I wanted to write about his speech, but it was so rich in content that, lacking his text, I despaired at trying to summarize it. Now I have discovered that his speech was a condensed version of an article, "Worst. Congress. Ever.," that he recently wrote for Foreign Policy, so readers have a source to find the details.

In addition to the useful ways in which Ornstein summarizes political changes in the Congress over the last 40 years, I thought two things in his speech were particularly useful to teachers (and observers) of legislative politics. The first is the concept of unified, bloc-voting parliamentary parties trying to operate in a separation of powers system, which he traces back to the health care policy debate of the last Congress:

Republicans, having been thrashed at all levels in 2008, did not respond to the voters' rebuke by cooperating with the majority or trying to find common ground. Instead, repeating a tactic employed with great political success by Republicans in 1993 and 1994 against a newly elected President Bill Clinton, they immediately united fiercely and unremittingly against all the Obama and Democratic congressional initiatives. In the Senate they used delay tactics -- the filibuster and the hold -- in an unprecedented fashion, to block a large number of Obama administration nominees for executive branch positions and draw out debate to clog the legislative process and make an already messy business even messier. The session's legislative accomplishments occurred because Democrats maintained enough discipline -- and had large enough margins -- to enact their bills with the support of Democrats alone. The health-care bill was able to make it past a Republican filibuster in the Senate because Democrats, for a brief moment, had exactly enough senators to overcome it. Both parties acted as if they were parliamentary parties, indivisible blocs rather than groups of individual actors casting votes for reasons besides partisan loyalty. But in a non-parliamentary system, built on checks and balances and a separation of powers, parliamentary parties simply cannot work. Accomplishments get delegitimized, and some areas like climate change, end up in total gridlock.

At the time that he was speaking (and writing the article), before the cross-party resolution of the debt ceiling limit, the two congressional parties were engaged in unyielding confrontation, neither one willing to cede anything to the other. I found his comment that parliamentary-style parties don't work in a separation of power system interesting and reflected that the opposite is also true: American-style cross-party coalitons wouldn't work well in a parliamentary system that depends on unified majorities to choose and maintain the government in power and to pass laws.

The second helpful point was his emphasis on the permanent campaign and increased partisanship in the Congress. After summarizing sweeping changes to the two major political parties in recent decades, he concludes:

Good Stories

The New York Times has had four stories of interest to The Thicket over the last couple of days. They include:

• A reasonably balanced profile of Alabama state Senator Scott Beason: "Outside of college football, Mr. Beason has become just about the most divisive topic in Alabama."
• A rundown on on Amazon.com's plans to launch an initiative in California to overturn that state's law requiring online retailers to collect sales taxes and its implications for other states
• A story on the declining influence of rural legislators featuring Washington Senate minority leader Mark Schoesler, the only farmer left in that state's Senate, with other references to the roles of rural legislators in Virginia, Oregon and Idaho.

Like other longtime lawmakers, representatives of rural areas in states without term limits tend to hold on longer. Those with the most longevity, and power, are mostly white men and often from states in the South, Midwest and West that have strong rural traditions, even if their populations are now more urban. They succeed in part because experienced hands are still in demand, even amid calls for change in state capitols. There can be a paradox in their power: the regions they come from are often in decline, so their seats may not be hotly contested.

“Generally, as a rule of thumb, you don’t see senior leadership coming from embattled districts,” Mr. Schoesler said. “Leaders have to do unpopular things, so you tend to see both parties look for safe seats to groom leadership in.”

• A story about a movement to establish a separate state of South California that has this nice short explanation of the history of breakaway states in California and elsewhere:

Illinois Congressman Tries to Call All Constituents

Today's Washington Post has a feature article about Illinois Rep. Timothy V. Johnson, a 10-year veteran of Congress who has made a career of trying to call all of his constituents--a practice that he started as a member of the Illinois General Assembly.

In the bellowing jungle that is the U.S. Congress, Johnson is a quiet man with an incredible story. His goal is to call all 300,000 households in his district. Personally.

Johnson calls from the airport. He calls from the treadmill. Over 10 years, this habit has cost him a vast chunk of his life and left him with little legacy of landmark legislation. But, if nothing else, it has meant he really knows the people in his district.

Or, at least, he used to.

This year, the Illinois legislature has drawn a new district for Johnson, leaving out a vast number of the people he’s been calling. If he gets reelected and wants to keep up the practice, he’ll have to start again with hundreds of thousands of strangers....

This is a man haunted by democracy: The idea of representation, when practiced by Congress’s ultimate purist, looks a lot like a compulsive disorder....

Historians could think of no other lawmaker who had tried something like this....

“That’s carrying constituency relations to an almost pathological extreme,” Thomas Mann, a scholar of Congress at the Brookings Institution, said when told of Johnson’s approach. Mann said the founding fathers expected lawmakers to be more independent than that: “James Madison would not approve.”

Johnson says he’s proud of his work on the Hill, where he has sponsored 36 pieces of legislation — and seen only three minor measures passed. He chairs a House subcommittee and helped start the Center Aisle Caucus to press for civil debate.

The Thicket will grant that no member of Congress has ever tried to do this before, but we're willing to bet that there are some state legislators, especially ones with smaller districts, who make it a practice personally to contact every household in their districts. Let us know.

Photo credit: Melina Mara/THE WASHINGTON POST

Another Dismal Civics Report Card

by Karl Kurtz

The National Assessment of Educational Progress released its third report in the last 12 years on the civic knowledge, dispositions and skills of America's young people today. The title of the report's news release, "Fourth Graders Post Gains in Civics Knowledge and Skills Since 1998 While Twelfth Graders Lose Ground From 2006" provides a succinct summary of its contents. Neither the increase for the fourth graders nor the decrease for the 12th graders was large, but they were both statistically significant.

One-quarter of the fourth and eighth graders who took the test fell below a basic level of competence in civics, as did one-third of 12th graders. Only about a quarter of all students scored "proficient" or "advanced" at all grade levels.

Perhaps as disturbing as anything in the results is the persistence of a large gap between racial and ethnic minorities and Whites in the scores. Although Hispanics made gains in relation to Whites, the gap was still wide. Performance by Black students declined both in absolute terms and relative to Whites.

Speaking on a panel at the release of the report, Charles Quigley, director of the Center for Civic Education, was asked about the irony of the elimination of federal funding for civic education in the FY 2011 federal budget in light of these findings. He responded that he was dismayed by the funding cuts at a time when the NAEP report suggests that efforts at democracy education need to be redoubled, not cut out. He advocated not only refunding of existing civic education programs in the FY 2012 Department of Education budget but also creation of new competitive grant programs in civics. He said that he was "cautiously optimistic" that some funding would be restored.

[Disclosure: NCSL has received funds over several years from the federal civic education appropriations that were eliminated in FY 2011.]

Graphics credit: The Nation's Report Card