The Thicket at State Legislatures

More than Half of State Legislatures Convened this Week

By Angela Andrews

The Idaho House convened on January 7. Photo credit: The Spokesman-Review

As the holiday bows come down and the New Year's Eve streamers are picked up, state legislatures are testing their roll call machines, polishing member's desks and tidying up the rostrum for the start of the 2013 legislative session.

All 50 states and the six territories are meeting in 2013, as opposed to last year, when only 46 states and the six territories met (Montana, Nevada, North Dakota and Texas meet every other year). The bulk of state legislatures – 26 to be exact -- are convening this week. By the end of January, all six territories and 43 legislatures will have convened.

Check out our new session map, which shows when legislatures convene, adjourn or are in a special session. By the end of February, almost all of the map will be green, except for Florida, which convenes March 5, 2013 and Louisiana, which convenes April 8, 2013. Speaking of Louisiana, here's a little tidbit for the legislative junkie. The convening dates of the Louisiana legislature changed in 2012, due to the approval of a constitutional amendment in 2010. Now , in odd-number years the legislature is to convene the second Monday in April, instead of the last Monday in April and in even-numbered years, the legislative is to convene the second Monday in March, instead of the last Monday.

"Under the Hammer" in Maine (and Moose, too)

By Karl Kurtz

A visit to the Maine State House on Monday this week to conduct a training program for committee chairs added another item to my collection of legislative localisms--colorful language, like "chubbing" in Texas or "hoghousing" in South Dakota, that is specific to the legislative process in only one state (or at most a few). Similar to the way other states expedite legislation by using consent calendars or approve motions "without objection," Maine legislators say that a bill is "under the hammer." Everyone uses the term and knows what it means. "Maine's Path of Legislation," a publication produced by the clerk of the House and the secretary of the Senate, describes the term as follows:

At any point, a legislator or the presiding officer may call for a vote on the current motion on the bill. When debate on a motion is over, a vote on the motion is in order. The vote may be a voice vote, or a vote "under the hammer," where approval is presumed unless an objection is raised before the presiding officer bangs the gavel.

No one seemed to know how and when the phrase first came into use.

As a postscript, when I visited the Wyoming Legislature last month, I wrote about the taxidermied bison that sits majestically in a hallway of the State Capitol. To which Maine Rep. Sharon Treat responded in a comment, "Bison are nice, but the Maine Capitol sports a moose." Well, two actually, as I can testify after taking a tour of the State House in Augusta and finding a bull and cow moose in one of four dioramas (behind glass) depicting animal life in Maine:

The dioramas were designed by Maine artist Klir Beck, who is described in a delightful 1948 article in the Lewiston Evening Journal as "the Leonardo da Vinci of the 20th century" because of his work in multiple media.

Half the States will Have Veto-Proof Majorities

By Karen Shanton

Following our own advice, we recently analyzed the number of states with veto-proof legislatures (states in which one party controls enough votes to override a gubernatorial veto). When the smoke cleared, we found that fully half the country is poised for a veto-proof legislature in 2013. Twenty-one state legislatures were veto-proof heading into November. With Democrats losing veto power in one state and gaining it in two, Republicans losing veto power in three states and gaining it in six, and all other states holding steady, a whopping 25 states will have veto-proof legislatures when legislative sessions start up in the New Year.

The biggest shift was in Arkansas. Party control in the Arkansas General Assembly flipped in the election, with Democratic majorities in both chambers giving way to Republican majorities. Arkansas is one of seven states – along with Alabama, Indiana, Kentucky, Pennsylvania, Tennessee and West Virginia – that require only a simple majority vote to overturn a gubernatorial veto. So, with a 60 percent GOP edge in the state Senate and a razor-thin 51 percent in the House, the Arkansas General Assembly switched from a blue veto-proof body to a red veto-proof body.

This swap was particularly significant because it made Arkansas one of just three states in the nation with both a veto-proof legislature and a divided government (a government in which the governor and the majority party in at least one legislative chamber come from different parties). Though Republicans now control the Arkansas State Capitol, Democratic Governor Mike Beebe still holds the Governor’s Mansion. Missouri’s Democratic governor, Jay Nixon, is in the same boat as Arkansas Governor Beebe, facing a newly-veto-proof Republican legislature. In Rhode Island, Republican-turned-independent Governor Lincoln Chafee will continue to work with an overwhelmingly blue legislature.

These numbers are not static. Veto-proof legislatures can come and go with vacancies, as California may prove in 2013. They can also vary with the allegiances of independents, as is the case this year in Georgia and perennially in the independent-heavy Vermont House. (The numbers cited above assume that independents will align with the majority party in these states.) Rule changes can also snap veto-proof legislatures in and out of existence. Pennsylvania Republicans held majorities in both chambers of the General Assembly in 2003 but this edge didn’t win them veto power until a couple of years later – when the veto override requirement was reduced from two-thirds to a simple majority.

However, they provide us with a snapshot of the current state of the nation. When set alongside historical data, this snapshot hints at a country that’s shifting toward political extremes. The total number of veto-proof legislatures is at its highest level in at least a decade but a strikingly small number – just 12 percent – of these legislatures are in states with divided governments. By contrast, there were only 14 veto-proof legislatures in 2003 and half of them were in states with divided governments. The number of veto-proof legislatures could bounce back down in the future (and the number of divided governments might bounce back up). But – for now, at least – the polarization that is so prominent in national politics seems to be echoed at the state level.

(See here for an update to this post.)

State	Votes required to override a veto*	Post-election majority	Gov
AL	Majority of elected body	3/5 R	R
AR	Majority elected	R majority	D
CA	2/3 elected	2/3 D†	D
DE	3/5 elected	3/5 D	D
GA	2/3 elected	2/3 R‡	R
HI	2/3 elected	3/4 D	D
ID	2/3 present	3/4 R	R
IL	3/5 elected	3/5 D†	D
IN	Majority elected	2/3 R	R
KS	2/3 membership	2/3 R	R
MD	3/5 elected	2/3 D	D
MA	2/3 present	3/4 D	D
MO	2/3 elected	2/3 R†	D
NC	3/5 elected	3/5 R†	R
ND	2/3 elected	2/3 R	R
OH	3/5 elected	3/5 R†	R
OK	2/3 elected	2/3 R†	R
PA	Majority	R majority	R
RI	3/5 present	3/4 D	I
SD	2/3 elected	3/4 R	R
TN	Constitutional majority	2/3 R	R
UT	2/3 elected	3/4 R	R
VT	2/3 present	2/3 D‡	D
WV	Majority elected	D majority	D
WY	2/3 elected	3/4 R	R
*For vetoes of ‘typical’ bills. Some states set different thresholds for overriding vetoes of special bills (e.g. revenue bills). †Gained a veto-proof majority ‡Assumes that some independents caucus with the majority party Sources: NCSL StateVote and the Book of the States

What Constitutes a Supermajority?

By Karen Shanton

Illustration from The Michigan Broadcaster

Following major gains by Democrats in California and Illinois and Republicans throughout the South and Midwest, many post-election headlines trumpeted the arrival of new legislative supermajorities. One thing that has been obscured in some of this coverage is that 'supermajority' is a nuanced concept. Despite the name, figuring out where Republicans and Democrats hold supermajorities isn't nearly as simple as counting where they're in the majority.

'Majority' always means 'more than half.' 'Supermajority,' on the other hand, can mean any number of things – from 'three-fifths' to 'two-thirds' to 'three-fourths.' To a Nebraska legislator looking to refer a constitutional amendment to the ballot, a supermajority is three-fifths. An Arkansan who wants to appropriate money for something other than education, highways or debt reduction needs a three-fourths supermajority. A legislature is 'veto-proof' (one party controls enough votes to override a gubernatorial veto) when a single party controls three-fifths of the vote in Illinois or two-thirds in Georgia; a simple majority will do the trick in Kentucky. Arizona legislatures can overturn most vetoes with a two-thirds supermajority but tax bill vetoes require three-fourths of the vote.

To make things even more complicated, supermajorities aren't always calculated from the same pool of votes. Vermont legislators can overturn a gubernatorial veto as long as two-thirds of the members present agree to the override. Legislators in North Dakota have to muster the votes of two-thirds of members elected while Michiganders need two-thirds of members elected and serving.

And, unlike majorities, supermajorities are context-dependent. You can tell me whether Florida Republicans hold a majority even if you don't know why I want to know. The same isn't true of supermajorities. If we're talking about referring a constitutional amendment to the ballot, Republicans hold a supermajority in Florida. If we're talking about overriding a veto, they don't. So, the answer to the question, "Do Republicans have a supermajority in Florida?" could be either yes or no, depending on the context.

What this suggests is that it doesn't really make sense to ask, "Does one party hold a supermajority in that state?" or "How many state legislatures have supermajorities?" Instead, we should focus on something more specific, such as "Does one party have the power to refer a constitutional amendment to the ballot in that state?" or "How many state legislatures are veto-proof?" This distinction might be worth keeping in mind when the next article about new legislative supermajorities pops up in your RSS reader.

Test Your Knowledge of the Finer Points of Parliamentary Procedure

Note: The Mason's Manual Commission, the authors of the revised versions of the parliamentary manual designed for state legislatures, Mason's Manual of Legislative Procedure, have recently had fun conducting college bowl style quizzes for state legislative parliamentarians on some of the more arcane but interesting provisions of the manual. The Thicket asked the Commission and its chair, Alfred Speer, clerk of the Louisiana House of Representatives, to pick out a few of the more intriguing questions to test our readers.

By the Mason's Manual Commission

The first question in our Mason's Manual of Legislative Procedure quiz is a free one—we'll give you the answer without having to skip to the bottom of the page.

Why is it called Mason's Manual?

Paul Mason was assistant secretary and parliamentarian of the California Senate in the 1930s, serving under the legendary Joe Beek, secretary of the Senate for 47 years and founder of the American Society of Legislative Clerks and Secretaries. Mason wrote Mason's Manual of Legislative Procedure in 1935 and published numerous subsequent revised editions. Just before his death in 1985, Mason assigned the copyright for the manual, now used in 74 of the 99 legislative chambers, to NCSL. NCSL published revised editions in 1989, 2000 and 2010 under the direction of the Mason's Manual Commission.

Paul Mason sits high on a stool at right underneath the President Pro Tem of the California Senate. Joe Beek stands at the clerk's podium at left. Photo courtesy of the Office of the Chief Clerk, California State Assembly.

Score yourself on the remaining nine questions in this quiz.

1. True or false: A majority of a body has the power to establish a rule that cannot be modified or repealed by a majority vote of the body.
2. True or false: A motion to suspend the rules may be made only at a time when no question is pending.
3. True or false: The vote sustaining the ruling of the presiding officer may be reconsidered.
4. Yes or no: Is it necessary for a substitute bill to be read a first and second time before consideration on third reading and final passage?
5. Yes or no: Do members have to vote to be part of a quorum?
6. True or false: The authority of a house to pass upon a member's qualifications and election may be exercised throughout a term.
7. True or False: A witness' speech to a legislative committee is privileged, insulating the witness from legal action.
8. True or false: A presiding officer can refuse to sign legislation that has been duly passed and thereby kill the legislation.
9. True or False: A motion or amendment to strike the enacting clause from a bill is of the same character as all other amendments to a bill.

Find the answers to the questions below the jump.

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.

Balanced Budget Requirements

by Todd Haggerty

Question: In 1842, what state became the first to adopt a balanced budget requirement (answer is at the end of this post)?

Balancing the budget is widely considered to be the foundation of state fiscal practices. Keeping a budget balanced in times of fiscal stress, however, can be an overwhelming challenge for policymakers. What is meant by a balanced budget is not as clear as it may seem intuitively. Even the number of states whose laws require a balanced budget can be disputed, depending on the way the requirements are defined. The NCSL has traditionally reported that 49 states must balance their budgets, with Vermont being the exception. Other authorities add Wyoming and North Dakota as exceptions, and some authorities in Alaska contend that it does not have an explicit requirement for a balanced budget. Two points can be made with certainty, however: Most states have formal balanced budget requirements with some degree of stringency, and state political cultures reinforce the requirements (for more information on balanced budget requirements click here).

The history of state balanced budget requirements is as rich and varied as the provisions themselves. James D. Savage noted in his 1988 book, Balanced Budgets and American Politics, the Panic of 1837 was the spark that pushed states to impose balanced budget requirements. Savage notes that “nineteen states adopted these amendments between 1842 and 1860.”

Please Fill Out Your Name, SS Number and Facebook Password

By Meagan Dorsch

Updated post on this issue

When applying for your next job, you may need to submit the username and password for your personal social media accounts along with a cover letter, résumé and list of references.

Several companies, and government agencies, have been challenged for allegedly asking job applicants to provide passwords to their personal social media accounts as a condition of employment. This week, U.S. Senators Richard Blumenthal (D-CT) and Charles E. Schumer (D-NY) asked the U.S. Department of Justice  and the Equal Employment Opportunity Commission to look into the matter.

This issue had already grabbed the attention of state lawmakers.  According to the National Conference of State Legislatures, lawmakers in a handful of states have introduced legislation to prohibit such actions. The state of Maryland is set to be the first state to enact this legislation prohibiting this action. A separate bill passed the House in Illinois, and concern over this practice might even prompt federal legislation.

Why do employers want to see what you do on social media? Presumably, they are looking for the “real” you, making sure that those who work in public agencies or with children are not engaging in inappropriate behavior or that those in a high profile position (who might represent a company) do not have inappropriate material floating around online.

What appears to be at the heart of this issue for state and federal lawmakers are privacy and employment laws, both of which could be violated if a person provides passwords to personal accounts. There is also the concern over businesses violating the Federal Stored Communications Act. Even Facebook, the company that has been at the heart of several privacy issues, says providing this information goes against its user agreement. The company has even threatened to sue employers that violate its policy.

Senators Blumenthal and Schumer have called this a disturbing trend, one that has the attention of Congress, state legislatures and the public. For some, it’s an issue of privacy; others see the issue as an infringement of rights. As one person commented on a recent thread, if an employee is asked for his/her password, is it fair to demand it from the company as well? 

Photo from the Daily Press & Argus article in Livingston Daily.com. 

Updated April 11, 2012 to include information regarding Maryland's bill.

2012 Legislative Session Update: Convening, Adjourning and Special Sessions

by Angela Andrews

A lot has happened in the world of legislative sessions since our post in January kicking off the start of the new year and the 2012 legislative sessions.

Legislatures in 46 states and six territories that meet in the even-numbered year have convened, and some of them have already adjourned. The Louisiana legislature is the last legislature to convene for 2012, as they start their session today. Check out our 2012 session calendar by convening date to see a list of when legislatures convened this year.

Oregon House members wave to their colleagues across the hall in the Senate through open doors in an end of session ritual. (Ross William Hamilton/The Oregonian photo)

On the adjournment side, 10 legislatures have adjourned their regular sessions for 2012. This includes the Oregon Legislature, which held their first-ever annual session after voters approved a legislative referendum in 2010 requiring the Legislature to meet annually, instead of biennially (every other year).

South Dakota and Kansas are also on tap to adjourn this month. Take a look at our 2012 session calendar by adjourning date to see which legislatures will adjourn in April and May.

Of the 10 legislatures that have already adjourned, four still have unfinished business to consider. The Florida Legislature will meet in a special session to revisit their redistricting maps, and Virginia and Washington have been called into special sessions to finish their budgets. The West Virginia legislature adjourned on Saturday, but will reconvene this week to finish the state budget.

And, here's a fun fact for legislative junkies: Did you know that in some states, including Florida, Virginia and Washington, either the legislature or the governor can call the legislature into a special session? Learn more about special sessions here.

Arkansas Designates New Leaders for 2013

by Karl Kurtz

Rep. Darrin Williams speaks to reporters after his selection as speaker designate, as current Speaker Robert S. Moore looks on. (John Lyons, Arkansas News photo)

After adjourning its 2012 fiscal session on Friday last week, the Arkansas House of Representatives met and designated Rep. Darrin Williams (D) as the next speaker of the House for the 2013-14 biennium. If the Democrats maintain the majority after the 2012 elections, Williams will become the first African American speaker in Arkansas, as reported in The Thicket last week.

But the "if" clause in the preceding session is an important one. As the Arkansas News reports,

If Republicans win a majority in the House in November, they could block Williams from being installed and instead seat a Republican speaker. Williams told reporters he believes lawmakers would be making a mistake to “change horses in midstream,” saying he will start planning for the next session right away.

“It costs us about $30,000 a day to be here. If we wait to start planning after November, then that’s just more money we’re going to cost the state and that’s more days we’re going to be here,” he said.

[Rep. Terry] Rice [the Republican who ran against Williams for speaker designate] has said there will be “two people maybe getting ready” to lead the House.

Current House Minority Leader John Burris of Harrison predicted today that if Republicans win a majority, they will seat Rice, not Williams, as speaker. In doing so they would be following the wishes of voters, he said.

The Arkansas Senate selected Sen. Larry Ferguson to be the president pro tem designate a year ago at the end of the 2011 session.

This turn of events caused us to review how and why Arkansas chooses its leaders so far in advance. Among the fifteen states that have term limits, Arkansas is one of three that have the most stringent limts: six years in the House and eight in the Senate. Before term limits took effect, Arkansas had a tradition of rotating speakers every two years based on  seniority. The most senior member who had not yet served as speaker would become the top leader in the next session. Committee chairmanships were also based on seniority.