The Thicket at State Legislatures

Disappearing and Bolting Quorums

by Karl Kurtz

Last year, when Wisconsin and Indiana legislators fled their states to prevent their respective legislatures from conducting business, I recounted the story of Abraham Lincoln breaking a quorum in the Illinois House of Representatives by climbing out the window. Now, University of Missouri political science Prof. Peverill Squire, in a remarkable piece of historical research, reveals that the Lincoln episode was far from the earliest case of a "bolting quorum" in an American legislature. In "Quorum Rules in Historical Perspective: Their Use and Abuse," he reports on quorum rules in colonial legislatures:

The first quorum standard in the Americas was established in the 1629 Massachusetts Bay Colony Charter. That document held that 7 of the 18 assistants along with the governor or deputy governor was a sufficient number for the “dispatching of all such buysinesses”. This quorum rule is notable because it was put in place 11 years before the English House of Commons first established one.

Carpenters Hall in Philadelphia, the sometime home of the House of Representatives of the Province of Pennsylvania

Many colonial legislatures had fairly loose quorum requirements--often less than a majority of the members and, in a few cases, no quorum requirement at all--and they often changed them to meet the needs and practices of the times. The strictest quorum standard of two-thirds of the members was established in Pennsylvania in 1683, leading to this story [footnotes deleted from original]:

...[T]he strategic opportunities offered by quorum rules were well understood by politicians of the time. Perhaps the earliest episode of quorum exploitation occurred in Pennsylvania, not long after the two-thirds standard was established. In 1689, at the behest of Penn’s deputy governor, a sufficient number of Assembly members were persuaded to leave the chamber to break the quorum in order to prevent the passage of a list of grievances against the proprietor. In response, the bolters’ remaining colleagues voted to denounce “that abominable Treachery and Practice of the said absent Members, in wilfully neglecting to appear at the Time, when they understood that this House were going about to call the Violators of the Liberties of the Freemen of this Government to Account.” They went on to seek retribution by stating “That the said absent Members ought not to receive any Salary for the Service this Assembly; and are not worthy to be chose again, or be intrusted as Delegates.”

This sounds remarkably like the Indiana House of Representatives in 2012 or any other recent legislative walkout, right down to the effort to deny the absent members their pay.

Federal Court Rejects Texas Legislature's Claim of Legislative Privilege

by Karl Kurtz

Earlier this week a federal district court judge in Washington, D.C. ordered the Texas Legislature to hand over documents that it had withheld in a dispute over redistricting maps. The Justice Department and plaintiffs sought access to the documents prepared by legislators and legislative staff. The Legislature claimed that the documents were protected by legislative privilege and an attorney-client relationship between the staff of the Texas Legislative Council and the members of the Legislature.

Legislative privilege is the doctrine found in the federal Constitution and 43 state constitutions that provides legal protection to legislators in the conduct of legislative business. The intent is to shield them from threats of judicial or executive intervention in their work.

The court rejected the Texas claim of legislative privilege, saying that the Legislature had failed to cite any statute or case law that would justify the privilege. Moreover, the court said that while it recognizes the confidentiality between staff and legislators provided for in the Texas Government Code, that confidentiality does not constitute an attorney-client relationship. Finally, the court ruled that communications between legislative staff and members about the case had to be disclosed because the legislators involved did not claim privilege (the court did not say how it would have ruled if they had claimed privilege).

The Texas Redistricting blog has a more extensive summary of the case and links to the court's decision.

To my inexpert and non-legal eyes, this case seems to hinge mainly on the language of Texas statutes and case law, so it may not have major implications for questions of legislative privilege and attorney-client relationships in other states. However, at the very least it seems to be a case of a federal court joining with state courts in a tendency to side with government openness and transparency against the competing value of the right of legislatures to maintain independent decision-making processes. Ohio State law professor Steven F. Huefner reports in a 2003 law review article, "The Neglected Value of the Legislative Privilege in State Legislatures":

While some of these states' [legislative privilege] provisions have never been applied, recent judicial interpretations in other states have departed from settled federal interpretations of the legislative privilege, failing to apply it broadly to protect the legislative process and instead unduly favoring ideals of open government.

He goes on to conclude:

...To protect representative democracy, the legislative privilege merits a more robust application at the state level than some state courts have been willing to give it.

It now appears that Prof. Huefner can add the federal courts to his plea.

In addition to the Huefner article, my colleague, Kae Warnock has compiled some useful resources on the subject of legislative privilege, legislative attorney-client relationships and confidentiality:

• "Legislative Immunity in Minnesota" by former Senate Counsel Peter Wattson includes extensive citations of federal and state case law (not just Minnesota).
• "Representing Representatives: Ethical Considerations for the Legislature's Attorneys," a 2003 law review article by former Wisconsin staffer Rob Marchant
• Kae's own informal compilation of confidentiality policies and attorney-client privilege statutes and case law.

Indiana General Assembly Considers Going Paperless with iPads

by Pam Greenberg

A single bill in the Indiana General Assembly generates about 11,400 sheets of paper, weighing 45.6 lbs. and creating a 3.8 foot stack of paper—that's the equivalent of 1.386 trees! That finding from a new study was one factor in a decision by a subcommittee of the legislature to recommend a pilot project to use iPads during the 2012 session.

Indiana’s Legislative Council Data Processing Subcommittee heard testimony earlier this week about using iPads and other technology to help in the transition to a "paperless" legislature. An in-depth report prepared for the committee by staff of the Legislative Services Agency provides detailed information that should be helpful to other states looking at implementing tablets in the legislature or moving toward a more paperless process.

Some of the findings, such as technical issues and readiness to adopt tablet technology, are specific to Indiana, but the information offered and issues identified are a useful outline of what needs to be considered beyond the simple purchase of an iPad.

Members of the subcommittee were concerned with possible savings and efficiencies from using tablets, so they also asked the Department of Emerging Technologies at Ball State University to study the flow of paper throughout the Indiana legislative process. The study also asked several key questions—“How is paper used in the Legislature?,”  "How would technology impact the process?" and “Why do you print”—which helped focus on the important issues to be addressed.

Virginia Senate Tied*

by Karl Kurtz

That asterisk in the title is there for a purpose. It's the only way we know of to list a chamber that is officially tied but effectively under control of one party, in this case the Republicans.

In yesterday's developments in the Virginia Senate as reported in the Richmond Times-Dispatch, challenger Bryce Reeves' (R) election night margin of 86 votes over incumbent Sen. Ed Houck (D) became a more comfortable 224 vote edge when all the votes were counted. Although Houck has 10 days in which to request a recount, it appears likely that the Senate is tied. [Update, 4 p.m., MST: Sen. Houch has conceded.]

Certainly the Republicans view it as a tie that they control. Republican Lt. Gov. Bill Bolling, who holds the tie-breaking vote under Virginia rules, said:

"Make no mistake about it, there is a Republican majority in the state Senate," Bolling told reporters Wednesday.

"And that Republican majority fully intends to organize the Senate with a Republican majority," he said, including installing a Republican majority leader and Republican chairmen of the key committees.

And the Times-Dispatch goes on to report:

The Senate had been the Democrats' last bastion of power at the Capitol. They held a 22-18 majority until Tuesday, when Republicans ousted incumbent Sen. W. Roscoe Reynolds, D-Henry, by just over 600 votes in the 20th District, and appeared to have removed Houck from the Fredericksburg-area seat he has held for 27 years.

By casting a vote to organize the Senate, Bolling could ensure Republican chairmen and assign members to legislative committees, which could control the flow of legislation in the upcoming General Assembly session.

The Virginia Senate was tied once before after the 1995 election. The lieutenant governor at the time was a Democrat, and it was assumed at first that the Democrats would organize the chamber. But one Democratic senator, Virgil Goode, Jr., who later served in Congress, objected to the idea of the lieutenant governor, an executive branch official, resolving a tied situation in the Senate. He announced that unless the two parties came to the table to negotiate a power sharing agreement, he would vote to organize with the Republicans. Virginia Senate Clerk Susan Schaar says that it took them three days, but eventually the party leaders forged an agreement: a Democratic lieutenant governor presided, each party had a floor leader, the Finance Committee had co-chairs, six other committees had Democratic chairs, and four had Republican chairs. Other than the formal role of presiding, the lieutenant governor had nothing to do with.

Such a scenario seems highly unlikely in 2011. For the time being, count the Virginia Senate as tied.*

*Tied but under Republican control due to the lieutenant governor's tie-breaking vote.

Using Tablets in State Legislatures

by Karl Kurtz

No, we're not talking about returning to Moses' style of lawmaking. It's tablet computers that are all the rage. How are they affecting legislative procedures and information services?

At a recent NCSL focus group of legislators and legislative staff, half of the participants said that they own tablet computers, and most of the other half said that they intended to get one in the near future. Reflecting the popularity of these devices, legislatures around the country are experimenting with using tablets to provide legislators and staff with easy access to bill status, committee agendas, state budgets, and other critical legislative information.

Last week at a joint meeting of the Legislative Information and Communications Staff and Leadership Staff sections in Richmond, Sharon Crouch Steidel, director of Virginia House information technology, and Tom Bennett, assistant to the majority leader of the West Virginia House, reported on pilot projects in their chambers to provide legislators with iPads. Sixteen Virginia and 10 West Virginia House members participated in their states' pilot programs during the 2011 legislative sessions.

For the most part, legislators who participated in the pilots were very pleased. One Virginia House member was so happy with the experience that he told Sharon, "You'll have to pry the iPad from my dead, cold hands."

Here are the principle benefits of using tablet computers that Sharon and Tom noted:

• Virginia participants found the iPads particularly useful in accessing and viewing state budget information.
• Members in both states liked the ability to integrate their various e-mail accounts on one platform, although they had to be careful about not having campaign-related e-mail on their state-owned devices.
• Members with weak vision appreciated the ease of expanding fonts with a flick of their fingers.
• The tablet computers are more portable and have better battery life than laptops.
• Tablet users made fewer help desk requests than did laptop users in Virginia.
• Virginia participants made effective use of DropBox to share files with other devices such as smart phones and PCs or Macs.
• Tablet users did not print as many documents as non-tablet users (see obstacles below).

However, there were also obstacles that had to be overcome:

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. 

Death Valley of "No" Votes

by Karl Kurtz

Earlier this week, the Sacramento Bee reported that two members of the California Assembly majority Democratic party voted "yes" on all 1,450 roll call votes during the just-completed 2011 legislative session. Fourteen other members, including the top leaders in both the Assembly and Senate, cast "no" votes five or fewer times.

It's no secret that Democrats rarely vote "no" on the floor. They control the Legislature and its committees, they control what comes up for a vote, and they usually let only the bills that they like come to a vote.

Plus, many votes pass judgment on measures that would draw little objection – resolutions honoring fallen officers, bills renaming bridges and the like.

Most Democrats do occasionally break with their party to vote "no" on the floor, but for some of them, you were more likely to see rain in Death Valley.

Wondering how common this might be in other states, I checked around with informants in selected states and found that there are a few chambers in which virtually every bill that comes to the floor passes, and majority party members generally vote yes. But most said that it was rare for members not to cast any no votes.

Although the article does not say it, these votes in the California Assembly are almost certainly on final passage only. The Ohio House has similar practices to California, but House clerk Laura Clemens notes, "A member might cast several 'no' votes on certain motions, i.e. motion to re-refer to committee, motion to lay on the table, etc., but vote with the majority 100% of the time....  We have quite a few of these."

And then there's the Illinois House. With strong leadership control, most bills that make it to the floor pass in that chamber. But not all of them. In fact, there is a special Century Club reserved for members whose bills obtain at least 100 (out of 118) "no" votes. When the vote tally board nears 100 nays, the chamber turns raucous with members urging their colleagues to change their vote from green to red in order to induct another member into the Century Club. A celebration, which includes passing a trophy from the previous inductee into the club, ensues, as shown in this video captured by Illinois Statehouse News earlier this year.

FY 2012 Budget Battles: Vetoes in Four States

by Todd Haggerty

State budgets are never easy to pass. This year enacting state fiscal policies is proving to be especially difficult due to legislative-executive conflicts. Governors don’t often veto entire state budgets, but this year four chief executives have rejected fiscal year (FY) 2012 budgets passed by their legislatures. This has set the stage for high profile brinksmanship between legislative and executive branches.

Last November, voters in California approved Proposition 25, which replaced the super-majority requirement to pass the budget with a simple majority.  The super-majority requirement was often cited as a major cause for California’s late budgets. On June 15, the California Legislature approved the FY 2012 budget, sending the bill to Governor Jerry Brown. Gov. Brown quickly issued the first full-budget veto in California since 1901. This is an in-party fight, as Democrats control both branches.

Prop. 25 also contains language that legislators must forfeit their pay if they do not pass the budget by midnight on June 15. The California State Controller ruled yesterday that the budget passed by the Legislature was not balanced and thus legislators will forfeit their pay until a balanced budget is passed.   

In Iowa, Governor Terry Branstad (R) vetoed the budget on April 12, 2011. One of the issues Senate majority Democrats and Gov. Branstad are at odds over is the budget calendar itself. Gov. Branstad is insisting upon a biennial budget for the state. Senate Democrats fear that a switch to biennial budgeting will result in the loss of legislative control over the budget. The latest Iowa has ever enacted the budget was June 26, 1992 (then Gov. Branstad’s third term).

Minnesota lawmakers passed the state biennial budget on May 23, 2011 with Republican control in both chambers. Unhappy with the Legislatures plan to balance the budget, Governor Mark Dayton (D) vetoed the 9 budget bills the very next day.  Minnesota faced a similar situation in 2005 when the state experienced its first shutdown its history. However, in 2005 more pieces of the FY 2006 budget were in place by the start of the fiscal year. If an agreement is not reached this year, the impacts of a shutdown could be far greater.

Finally, in North Carolina, Gov. Beverly Perdue (D) vetoed the first budget in North Carolina state history. Governors in North Carolina received veto authority in 1997. The House and Senate, under Republican control, overrode the veto a few days later, setting another historic first.

For more information please see the following NCSL resources:

• FY 2012 budget status
• Late State Budgets
• Procedures When the Appropriations Act Is Not Passed by the Beginning of the Fiscal Year
• Average Number of Appropriation Bills

Another Legislative Walkout--in the Balkans

by Karl Kurtz

The minority party walks out of a legislative session, denying the presence of a quorum, and a court has to rule if the action taken by the remaining majority members was legal. Sounds like Wisconsin, right?

In this case, though, it's in Kosovo, a part of the former Yugoslavia that declared its independence from Serbia in 2008. In February of this year, 67 of the 120 members of the Kosovo Assembly elected Behgjet Pacolli as president of Kosovo, a largely ceremonial position in a system in which the prime minister heads the government. Pacolli is the leader of the smaller party in a two-party coalition that formed a government after elections last November.

Sixty-seven of 120 votes is clearly a majority. Only trouble is, the Kosovar constitution requires that two-thirds of the members be present for the election of a president. All of the minority parties took a walk during this vote because they objected to Pacolli's election, so there was no quorum present. Last week the country's constitutional court ruled that the election of the president was invalid. The Assembly will have to conduct another election, and, if they are unable to obtain a majority with a two-thirds quorum present, the parliament will have to be dissolved and new elections called.

In his book on filibusters and other parliamentary delaying tactics by minority parties, political scientist Gregory Koger said that he found 19 examples of legislative obstruction in countries outside the United States. Kosovo (where NCSL has a subcontract to do legislative strengthening work) adds one more to the list.

Photo credit: Balkaninsight.com

An Expert's "Favorite" Filibuster: The Rhode Island Senate in 1923-24

by Karl Kurtz

In follow-up to recent postings on legislative filibusters and walkouts, University of Miami Prof. Gregory Koger, who is the author of Filibustering: A Political History of Obstruction in the House and Senate and has reviewed hundreds of historical filibusters in all kinds of legislatures, sent a description of "my favorite filibuster." It's a combination of a filibuster and a walkout that involved shutting down the Rhode Island Senate for an entire session, a gas bomb, and fisticuffs among the members. Here is Koger's summary from an early draft of his book that was trimmed in the final version:

In January 1923, the Democratic minority in the Rhode Island Senate began a low-intensity filibuster against all major legislation in an effort to force the Republican majority to call for a new constitutional convention.  They were aided by a Democratic Lieutenant Governor presiding over the Senate, Felix Toupin, who refused to recognize any Republicans seeking to make motions, except a motion to call for a convention.  This conflict reached a peak in June, 1924 when the Rhode Island Senate stayed in continuous session for 22 hours until the Republican majority simply got up and left.  Three days later they returned for a 42-hour day-and-night session which began with a mass fistfight over control of the gavel and ended when Republican operatives placed a poison-soaked rag behind Toupin to gas him out of the presiding officer’s chair.  No one was permanently harmed, but the Republican majority relocated to Rutland, Massachusetts for six months until Republican victories in the 1924 elections put an end to the struggle.

This sounds a lot like the Alabama Senate fight of 1999, described in "Legislative Walkouts are Nothing New," in which a lieutenant governor from the minority party refused to recognize majority legislators for motions, leading to a walkout by the majority party. Minus the gas and the punches.

Here's a screen shot of an excerpt from a November 16, 1924 article from the New York Times (again courtesy of Greg Koger) about the Rhode Island filibuster. It provides more color about the issues involved, as well as a flavor of the Times' reportage and writing style of the time: