The Thicket at State Legislatures

Mt. Rushmore Trivia

Speaking at NCSL's Legislative Summit last month, David Gergen had a trivia question that's right up The Thicket's alley: What do the four men enshrined on Mt. Rushmore have in common besides having been president of the United States?

Answer below the jump.

Former President Jimmy Carter Captivates State Legislators

 

Credit: Realclearpolitics

"After my two terms in the Georgia state Senate, I went on to a couple of lesser offices," joked Jimmy Carter, 39th president of the United States and former governor of Georgia. He spoke yesterday to an audience of state legislative leaders, members of the NCSL Executive Committee and international delegates at the beautiful Carter Center in Atlanta during NCSL's Legislative Summit.

 

The audience listened with the reverence due to a former president and with admiration for his dedication to international diplomacy in the 33 years since he left office. Some disagreed with his interpretation of history, but there was universal respect for his outstanding public service.

The spry and lively 88-year-old former president summarized the work of the Carter Center: working with countries that do not have diplomatic relations with the United States but have critical human rights issues, monitoring elections in emerging democracies, treating neglected tropical diseases, and improving mental health programs (an initiative of First Lady Rosalynn Carter).

In regard to the election monitoring activities of the Carter Center--in 94 countries to date--President Carter emphasized the importance of volunteer election observers who spend six to eight days in country before and after an election and encouraged legislators and staff to volunteer. The Carter Center monitors elections only in countries where both the majority and the principal minority parties invite them to do so. He pointed out that the Carter Center's evaluation of the fairness of an election process carries considerable weight in the international community. When President Carter has called out putative election winners for cheating, those winners have often not been able to take office or have had to call new elections.

In a wide-ranging question and answer period, President Carter did not miss a beat as he touched on Canada-U.S. relations, energy policy, and American foreign policy toward North Korea, Cuba and Egypt. Commenting on American politics, he noted that in 1976 election he carried every southern state by a large margin--the last Democrat to do so. He regards the polarization of American politics today as the result of the infusion of money in politics, which is used by candidates on both sides to demonize their opponents, and increasingly sophisticated partisan gerrymandering.

For many in the audience, this session with the former president was undoubtedly a highlight of the 2013 Legislative Summit.

Chafee's Switch Leaves Only Two States with Veto-Proof Legislature and Divided Government

By Karen Shanton

Three states emerged from the 2012 elections with both a veto-proof legislature and divided government (government in which the governorship and upper and lower legislative chambers aren’t all held by the same party). On Thursday, Rhode Island Governor Lincoln Chafee cut that number to two. By officially switching allegiances to the Democratic Party, the former Republican-turned-independent joined his state’s General Assembly on the left side of the fence. That leaves just Arkansas and Missouri–which both have Democratic governors and Republican veto-proof legislatures–in the club.

Chafee’s realignment, and the attendant drop in the number of states with veto-proof legislatures and divided government, drew our attention to some recent trends in partisanship in the states. For most of the past decade, the total number of states with veto-proof legislatures hovered around 12-14 and five to seven of these 12-14 had divided government. Following the 2010 elections, however, the total number of states with veto-proof legislatures shot up. Twenty-three states emerged from the 2010 elections with veto-proof legislatures and 25 had veto-proof legislatures after last year’s contests. The number of states with both veto-proof legislatures and divided government, on the other hand, dropped well off. In both 2011 and 2013 (post-Chafee realignment), just two states fit both descriptions.

There was also a noticeable change in the partisan make-up of these state governments. Prior to 2010, states with Republican governors and Democratic veto-proof legislatures outnumbered states with Democratic governors and Republican veto-proof legislatures in every biennium, by an average of five and a half to one. Since 2010, the number of states with Republican governors and Democratic veto-proof legislatures has dropped to (and held steady at) zero.

Elections—and Rules—Have Consequences

By Karen Shanton

When Republicans flipped the Arkansas General Assembly from blue to red in 2012, they didn't just gain a legislative majority. They also picked up the power to override gubernatorial vetoes. 

Arkansas Gov. Mike Beebe

With a Democrat, Mike Beebe, in the governor's mansion, this wasn't likely to be an inconsequential shift. And it's already starting to have some consequences. Earlier this year, Governor Beebe vetoed bills banning early-term abortions and requiring voters to show photo ID at the polls. Those vetoes were promptly overridden. Last week's trio of election reform vetoes faces a similar override threat. 

Arkansas is uniquely positioned for veto overrides. It's one of just three states–with Missouri and Rhode Island–to emerge from the 2012 election with both a veto-proof legislature and divided government (government in which the governor's mansion and one or both legislative chambers are held by different parties). And it's the only one of the three with a simple majority override requirement. Rhode Island legislators need three-fifths of the vote to override a gubernatorial veto. Missourians have to muster two-thirds. 

But some of the morals of this case should resonate in other states. The Arkansas example clearly illustrates the old political saw, "elections have consequences." Voter ID and abortion ban proposals like the ones that passed over Governor Beebe's vetoes this year stalled in the pre-election, Democrat-controlled Assembly. And Governor Beebe's veto count jumped from zero last biennium to six so far in the new biennium.

The Arkansas case also illustrates a new twist on the old saw: legislative rules have consequences. Republicans hold a mere simple majority of the Arkansas General Assembly. So, if Arkansas followed Missouri's or even Rhode Island's lead on veto override requirements, its policy landscape might have looked quite different than it currently does.

The Regular Order

By Karl Kurtz

In another excellent column in his "Comments on Congress" series, former Indiana Congressman Lee Hamilton laments the demise of the "regular order" of passing appropriations bills in the Congress. He points out:

The last time Congress passed a regular-order budget, not an omnibus spending bill, was 1997. Though it was far from a tidy process, its abandonment, I believe, is what has produced our current mess.

Few current members have any experience with the regular order:

Talking to a group of younger members recently, I realized they’d had no experience of following regular procedures to craft a budget. They’ve spent their congressional careers watching the leadership put it together in an ad-hoc, crisis-fueled manner. True budget-making skills on Capitol Hill are eroding. It’s in danger of becoming a lost art.

Then he goes on to explain what the regular order is:

The President submits a budget on time (not two months late, as President Obama has just done). Then congressional committees and subcommittees take it up, dividing their work according to the departments of government — agriculture, defense, transportation and the like. They hold hearings, call witnesses, explore what the executive branch has done with its money in the past, and consider its plans for the future. They debate and draft their own proposals, and allow amendments from both parties. Once the full committee acts, its measure goes to the floor for further debate, amendments, and a vote. Eventually, the bills arrived at separately by the House and the Senate get reconciled and go to the President to be signed.

Hmm...sounds like the process that most governors and state legislatures follow, doesn't it? The states vary as to whether they pass their budgets in a single or multiple appropriations bills, but the great majority of them follow the procedure that Hamilton outlines as the regular order. A few state legislatures may occasionally leave it to the top leaders to work out a deal in the governor's office on the thorniest issues while the other members twiddle their thumbs. But even when that  happens, the committees in those legislatures usually follow a meaningful process of public hearings, debate, negotiation and compromise that shapes the bulk of the budget decisions.

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).

How Many Women Governors 2013? (v4)

By Karl Kurtz

Maggie Hassan

As a result of the decisions of North Carolina Gov. Beverly Perdue and Washington Gov. Christine Gregoire not to run for reelection in 2012, the number of women governors in the United States dropped to five, a low for this century. The only newly-elected female governor is Maggie Hassan in New Hampshire. She is the only Democrat on the list of women governors, which includes Arizona Gov. Jan Brewer, New Mexico Gov. Susana Martinez, Oklahoma Gov. Mary Fallin and South Carolina Gov. Nikki Haley. 

Interestingly, at the same time that the number of women governors has been declining in the United States, the count of Canadian provincial premiers has increased. Of the 12 provincial or territorial first ministers, five are women. The most recently elected is Pauline Marois in Quebec.

Roses from The Thicket to New Hampshire Speaker Terie Norelli and Geoffrey Kelley, member, Quebec National Assembly.

Previous posts on the number of women governors.

Federal Agency Deference: Should the Fox be able to Guard the Henhouse?

By Lisa Soronen

Most Supreme Court cases cannot be neatly summarized by clever clichés.  But the fox guarding the henhouse is both a vivid and accurate description of City of Arlington & Cable, Telecommunications, and Technology Committee v. FCC.

 First, a little background: The Telecommunications Act of 1996 requires state and local governments to respond to requests to place, construct, or modify personal wireless service facilities within a “reasonable period of time.”  The Federal Communications Commission (FCC) interpreted a “reasonable period of time” as being 90 to 150 days.

The City of Arlington argued that the FCC lacked statutory authority to interpret this language. The FCC disagreed and claimed that its interpretation of its jurisdiction is subject to deferential review under Chevron v. NRDC. The Fifth Circuit, relying on past circuit court precedent, applied Chevron deference to the FCC’s interpretation of its own statutory authority under the Telecommunications Act and concluded, not surprisingly, that the FCC had jurisdiction to interpret a “reasonable period of time.”

So the issue the Supreme Court will decide in this case is whether courts should defer to a federal agency’s determination that it has authority to interpret a statute. 

Now, back to the fox and the henhouse.  If an agency (fox) wants to interpret a statute (enter the henhouse) of course it is going to say it has the authority to do so.  And if a court must defer to its conclusion that it has such authority well...hens beware! 

The State and Local Legal Center’s amicus curiae brief argues, among other things, that state and local governments are often regulated by federal agencies and often regulate the same subject matter as federal agencies. As a result, allowing federal agencies to determine the scope of their own jurisdiction, with only deferential review by courts, would allow federal agencies to encroach upon the authority of state and local governments, as illustrated by this case.  NCSL signed onto the SLLC’s brief. 

Oral argument will be heard in this case on January 16, 2013.  The Supreme Court will issue an opinion in this case by June 30, 2013.

A Significant Decline in Divided Government

By Karl Kurtz

Divided government refers to the condition of a state having a governor of one party and at least one chamber of the legislature of the opposite party. Here's the lineup of divided and unified governments post-2012 election compared to 2010:

	Post-2012	Post-2010
Unified Democratic	14	11
Unified Republican	23	18
Divided	12	20

The 2012 election saw a significant decline in the number of states with divided government. It's the lowest number of states with divided government since 1952, when there were eight. This rivals our previously reported factoid that we have the lowest number of legislatures with split control (three) since 1944.

Following portions of post modified at 4 p.m., MST, 7-Oct-2012.

Both of these statistics seem to reflect a growing polarization of states—almost all of them are either one party or the other, not mixed. But the number of states with divided government bounces around over time, as seen in the following chart:

The number of states with divided government peaked at 31 in 1988 and 1996. It has decline precipitously since 2004. Of course, a decrease in divided government necessarily means an increae in unified government. In the last two election cycles, Republicans have benefited more from this equation than Democrats.

Are these continuing trends? We'll probably have to wait for a few more elections to know for sure.

Book Review: The Evolution of American Legislatures

by Karl Kurtz

...[T]he original state legislatures were the models for the Congress created by the Constitution. It is true that several of the most influenctial voices in the writing of the Constitution disparaged the existing state legislatures. Yet, in every elemental characteristic--number and name of houses and the relationship between them, the legislatures's ability to name its own leaders and adopt its own rules, and the power of the executive veto--the Congress under the Constitution closely resembled the original state legislatures. It bore no relationship at all to the Congress that existed under the Articles of Confederation, which was a unicameral chamber that fused legislative, executive and judicial powers, and granted each state, not each legislator, a vote....

This is a provocative paragraph from the introduction to University of Missouri Prof. Peverill Squire's new book, The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Squire goes on from this teaser to summarize two evolutionary lines of legislatures in the United States--one that was highly successful and adaptive and the other that was not--in this schematic drawing.

Evolutionary Line 1 encapsulates Squire's compelling case that the 13 colonial legislatures, themselves highly original institutions, shaped and influenced the Constitutional Congress and that these two models together evolved into the territorial legislatures and their successors, the state legislatures. Each of the boxes in this chart receives detailed analysis in Squire's book.

Historians, political scientists and serious legislative junkies will love this book. Drawing on mountains of obscure primary and secondary sources and a comprehensive review of secondary sources (the bibliography is 70 pages in length), it covers not only our modern 51 American legislatures but an approximately equal number of colonial, confederal, territorial, and even the most arcane provisional legislatures. There is no other comparable scholarly work that looks at institutional change in American legislatures on such a grand scale. It is impressive in both its broad brush strokes and its convincing detail.

This is primarily a scholarly work, but Chapter 7, "The Professionalizing of Legislatures Since 1900," should be required reading for anyone who wishes to understand the institutional characteristics of our state legislatures today.