FILLING IN FOR THE FEDS - Congress' inability to get things done leaves states carrying a heavy load. 10
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STATE LEGISLATURES MAGAZINE JANUARY/FEBRUARY 2020 FILLING IN FOR THE FEDS Congress’ inability to get things done leaves states carrying a heavy load. 10
DEPARTMENTS STATE LEGISLATURES MAGAZINE From the Editors | 2 January/February 2020 Volume 46 | No. 1 Trends | 3 College admissions rules, public banks, bicycle helmet laws, census worker shortage, FEATURES Steven D. Gold Award Innovations | 8 Congress turns to the states—and NCSL—in effort to modernize StateStats | 9 As gun-related death rates rise, lawmakers debate control efforts On the Same Page | 20 “America in the Same Room” asks, Are we really as divided as some say? Stateline | 22 The brighter side of legislative news Toolbox | 32 Yes, introverts can thrive in an extroverted world Newsmakers | 34 10 What’s happening under the domes Yes, No, Maybe So | 36 10 | Filling In for the Feds Ethics in the legislature Congress’ inability to get things done leaves The Final Word | 37 states carrying a heavy load. Meet Nevada Senate Majority Leader Nicole Cannizzaro 18 | Services Targeted for Taxes Lawmakers consider taxing services as SL ONLINE consumers spend less on retail goods. You can find more information on many of the topics covered 28 | Debating the Death Penalty in these pages at ncsl.org/ 18 magazine. And, if you’d like Capital punishment divides legislators, but not along party lines. to get in touch, email us at magazine@ncsl.org. Executive Director Online Magazine Denver State Legislatures (ISSN 0147-0641) is published six times a year by the National Tim Storey Ed Smith 7700 East First Place Conference of State Legislatures. ©2019, All rights reserved. Reproduction in whole or in Editor Mark Wolf Denver, Colorado 80230 part without permission is prohibited. Requests for permission to reprint may be emailed Julie Lays NCSL President (303) 364-7700 to Julie Lays, julie.lays@ncsl.org. Opinions expressed in this magazine do not necessarily Assembly Speaker Washington, D.C. reflect NCSL policy. State Legislatures is indexed in the PAIS Bulletin and Expanded Senior Editor Academic Index. Kevin Frazzini Robin Vos, Wisconsin 444 N. Capitol St. N.W., NCSL Staff Chair Suite 515 Annual subscription rates: U.S.—$49; foreign—$55; teachers—$25 (promo code SLMTEA). Contributing Editor Washington, D.C. 20001 Martha Wigton, Director, Single copy: $6.50. Jane Carroll Andrade (202) 624-5400 House Budget and Art Director Postmaster: Send address changes to: State Legislatures magazine, 7700 East First Place, Research Office, Stephen Miller Denver, CO 80230. Georgia JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 1
From the Editors THE BIG ISSUES OF 2020 Gridlock in Congress May Mean Opportunity for States New year, new approach. story, Governing magazine writer Alan bulk of public policy should occur,” says We’ve typically used the first issue of the Greenblatt says the situation is unlikely Wisconsin Speaker Robin Vos (R), NCSL’s year to identify the topics we think will be to change anytime soon. That means president. So, where is Congress is happy hot in the coming legislative sessions in more inertia in Congress and more is- to let states take the lead? Turn to page 10 capitols across the country. But this year, sues that you, the nation’s state law- to find out. instead of cranking out yet another top makers, will have to tackle this year with Then turn to the “Innovations” column 10 list, we asked ourselves, What are the little to no help from your congressional on page 20. A bipartisan U.S. House panel issues states will be forced to deal with be- counterparts. is seeking ways to modernize Congress. cause Congress has failed to act? Gridlock in our nation’s capital, how- For help, they’ve turned to state legisla- For many observers, the term “Con- ever, opens up opportunities for states to tures—and NCSL. gress” has become synonymous with experiment, and that’s not necessarily a There might be hope for Congress yet. gridlock and toxic partisanship, inaction bad thing. “My preference has been, and and party before all else. In our cover always will be, that states are where the —Julie Lays and Kevin Frazzini MAY 7-10, 2020 LAS VEGAS SEPT. 10-13, 2020 PORTLAND, ORE. MAKING THE MAPS REGISTER THE NCSL SEMINARS ON REDISTRICTING TODAY! WWW.NCSL.ORG/ When it comes to redistricting, the learning curve REDISTRICT is steep. Let us help you and your team prepare for this complex, once-a-decade task. 2 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
Trends Courtesy USC Alumni Association The University of Southern California was among the schools targeted in the Operation Varsity Blues admissions scandal. HIGHER EDUCATION Tighter Rules in Wake of College Admissions Scandal The extremely low percentage of appli- tices. By session’s end, legislators had en- for an applicant’s criminal or disciplinary cants who get into elite schools was ex- acted measures that: history, with exceptions for certain crimes, posed when federal prosecutors indicted • Require institutions that receive state including stalking, sexual assault and do- more than 30 wealthy parents for brib- financial aid to report any preferential mestic violence. ery last year. In the scandal that became treatment in admissions to the legisla- Illinois legislators passed a law re- known as Operation Varsity Blues, the ture every year. This includes admis- quiring institutions to admit first-time parents paid an admission consultant to sions based on relationships to donors or applicants who graduate from state high rig standardized tests or bribe coaches to alumni. schools with a GPA in the top 10% of the help their children gain admission to sev- • Prohibit those found guilty in the student’s graduating class. Texas lawmak- eral top American universities. federal investigation from claiming tax ers amended the state’s Ten Percent Plan Across the country, high school stu- deductions based on contributions they to ensure admission for high school vale- dents submitted more than 10 million made to charities involved in the scandal. dictorians, regardless of graduating class applications to colleges and universities in • Prohibit admission by exception— size. 2017, an increase of more than 10% since a special talent in athletics or the arts— As more colleges and universities move 2014. without the approval of at least three se- away from admissions based on test As that number continues to grow, and nior campus administrators. scores—and if the fallout from the Varsity the likelihood of being admitted to an elite Legislators in 13 states introduced bills Blues scandal persists—states will con- school declines, institutions and states related to admissions and enrollment in tinue to address admissions policies and alike are focusing on admission policies. 2019; 17 became law. Not all them were re- rules to ensure all students have fair ac- After news of the scandal broke, Cali- lated to the admissions scandal, however. cess to higher education. fornia lawmakers scrambled to introduce Colorado lawmakers decided to prohibit legislation to address admissions prac- state colleges and universities from asking —Andrew Smalley JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 3
The Bank of North Dakota is one of just two public banks nationwide. FINANCE Public Banks: a ‘Force for Good’ or a ‘Catastrophe’? New Jersey soon will join North Dakota able to community banks for small-busi- that local farmers wouldn’t be charged as the only states in the banking business. ness loans, small-scale infrastructure proj- inflated interest rates on loans from out- New Jersey Governor Phil Murphy (D) ects and student loans. Bank profits will be of-state banks. Several states have enter- signed an executive order in November pumped back into the state budget. tained the idea of establishing a state-run creating a Public Bank Implementation Opponents argue the bank will compete bank in the last 10 years. Board that will lay plans for a public bank with established local institutions that California lawmakers recently voted to for the state. He called it “a force for good in are already providing these services and allow cities to open and operate public helping small businesses succeed, in pro- would be vulnerable to political influence. banks. viding student loans at affordable rates, and “The creation of a state-run bank is a “We finally have the option of reinvest- in opening lines of credit to municipalities looming catastrophe for Garden State ing our public tax dollars in our communi- needing long-term infrastructure and af- taxpayers,” New Jersey Senator Anthony ties instead of rewarding Wall Street’s bad fordable housing,” according to nj.com. Bucco (R) wrote in a statement. “The truth behavior,” Assemblyman David Chiu (D), Once the 14-member board publicly of the matter is that new agencies run by co-author of the bill, told the Los Angeles releases its plan, the bank could begin re- the state have a history of falling short. Times. ceiving millions of dollars in state depos- This poses too great of a potential liability Public banks also could be a boon to its previously held by commercial banks. for New Jersey families who already strug- state-licensed cannabis businesses, which Supporters see it as a way to invest more gle with taxes.” currently lack access to banking services. money back into local communities. The North Dakota’s state bank, which dates bank will make some of its money avail- back to 1919, was created to help ensure —Julie Lays 4 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
Bicyclist Traffic Crash Fatalities 2008-2017 TRAFFIC SAFETY 900 Getting Ahead of Cyclist Injuries With Helmet Laws 852 850 Prompted by the growing number of 829 bicycle riders and the resulting increase in crashes and injuries, the National Trans- 800 portation Safety Board recently conducted its first analysis of bicycle safety in 47 783 749 years. As a result of the study, the board 750 734 called for making cyclists more visible to 718 motorists, developing crash avoidance 729 systems for cars capable of detecting bi- 700 682 cyclists and building separated bike lanes and other infrastructure improvements to make roads safer. It also recommended 650 that state legislatures pass mandatory hel- met laws. 628 623 600 Only Puerto Rico requires all bicyclists 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 to wear helmets. Twenty-nine states have Source: National Highway Traffic Safety Administration no helmet law for cyclists of any age, while the other 21 states and the District of Co- lumbia have laws that apply only to cy- clists of a certain age, which varies from 17 years and younger in California, Delaware Bicyclist Traffic Crash Fatalities 2008-2017 and New Mexico to 11 years and younger in Louisiana and Pennsylvania, accord- 900 ing to the Insurance Institute for Highway 852 Safety. But that might be changing. 850 829 Supporters of helmet laws cite statis- 800 tics. Crashes with cars killed 854 cyclists in 2018. That’s the highest number in 30 749 783 750 734 years and a 6.3% increase over 2017. And, 718 of those who died, only about 17% were 682 729 700 wearing helmets. Studies show that wear- ing a helmet decreases the likelihood of a 650 623 head injury by about 48%. Although only 628 about half of cyclists wear a helmet, they 600 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 are four times more likely to do so if a law Source: National Highway Traffic Safety Administration requires it, according to studies cited by the Insurance Institute for Highway Safety. Opponents don’t believe helmet laws evidence doesn’t bear this out. Experience CRASHES WITH CARS KILLED are the answer. They would rather see up- has shown that while bike helmets can be grades to vehicle safety systems and road protective, bike helmet laws are not,” says 854 BICYCLISTS IN 2018—THE design. Helmet laws are hard to enforce, Corinne Kisner, executive director of the HIGHEST NUMBER IN 30 YEARS. they say, and may discourage people from National Association of City Transporta- biking altogether. And, studies show that tion Officials, in a press release. the more cyclists on the road, the safer all Several cities and counties have helmet are due to the “safety in numbers” effect. requirements as well. “While requiring helmets may seem like an intuitive way to protect riders, the —Julie Lays JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 5
CENSUS Help Wanted: Census Bureau Is Short on Temp Workers As the saying goes, it takes a village to Census Pay Rates by State raise a child. The same could be said for getting a complete and accurate census State Pay Range (per hour) State Pay Range (per hour) count—but the village would have to be a Alabama $13-$20.50 Montana $12.50-$19.50 Alaska $22.50-$28.00 Nebraska $12.50-$21.50 city the size of Atlanta. Unfortunately, the Arizona $12.50-$19.50 Nevada $13-$18 number of applicants for census jobs has Arkansas $12-$21 New Hampshire $13-$17.50 been disappointing. California $15-$30 New Jersey $13-$22 Colorado $13-$20.50 New Mexico $12.50-$17.50 The U.S. Census Bureau needs around Connecticut $17-$25 New York $13.50-$25 500,000 temporary employees for the 2020 Delaware $15-$25 North Carolina $12-$20 census and hopes to hire local residents to Florida $12-$19.50 North Dakota $13.50-$21 work door to door in their own neighbor- Georgia $12-$22 Ohio $12.50-$23.50 Hawaii $16-$22 Oklahoma $12-$17 hoods. But it’s behind on receiving applica- Idaho $13-$18 Oregon $13.50-$18 tions—by about 1.7 million. Illinois $12.50-$29.50 Pennsylvania $13-$27 The bureau recently launched a nation- Indiana $12-$25 Rhode Island $18-$22.50 wide campaign to boost lagging recruit- Iowa $12-$21 South Carolina $12.50-$16.50 Kansas $12-$21 South Dakota $12-$20 ment numbers. Why the difficulty finding Kentucky $12.50-$21.50 Tennessee $12.50-$26 workers? Several factors are believed to be Louisiana $12.50-$18 Texas $12-$24.50 at play: Maine $13-$17.50 Utah $13.50-$18 • Very low unemployment rates Maryland $15-$22 Vermont $13-$17.50 Massachusetts $14.50-$25 Virginia $12-$25 nationwide. Michigan $12-$24.50 Washington $13-$23 • An online-only application and training Minnesota $12-$27.50 West Virginia $12-$16.50 program. Mississippi $12.50-$17.50 Wisconsin $12-$22 • A lag in receiving completed back- Missouri $12-$23.50 Wyoming $13-$19.50 ground checks. • Uncertainty among benefit recipients A pay increase might also help in re- Every 10 years, the census provides as to whether their census pay will disqual- cruitment efforts. It was advised after the the data used to redraw state and ify them from receiving federal assistance. bureau encountered high dropout and no- federal political districts, to determine Census jobs, such as census takers, field show rates when it hired 32,000 temporary the number of U.S. representatives and supervisors, clerks and office supervisors, workers earlier this year to verify addresses. Electoral College votes each state gets and can last a few weeks to a couple of months. In Montana, for instance, hourly pay rates to portion out the federal funds states will States can decide whether to waive, or ex- have been increased to $17 for enumera- receive for the next decade. It’s hard to clude, income from these jobs when cal- tors and to $19.50 in a few hard-to-staff ru- overstate how important accurate counts culating Medicaid, TANF, CHIP and SNAP ral counties. Nationally, pay will range from are to the states. benefits. So far, Idaho, Massachusetts and $12 to $30 per hour depending upon the South Dakota have done so. job and location. —Christi Zamarripa DID YOU KNOW? Female Legislative Leaders, 2020 Women Sustain Chamber 80 Leadership Numbers 70 60 Seventy-three women will serve in leadership 50 roles—house speaker, speaker pro tem, senate 40 president, senate president pro tem, majority 30 leader or minority leader—for 2020. The number is 20 virtually unchanged from last year, though Virginia 10 has its first female speaker. All told, of the nation’s 0 Legislative Leadership House Chambers Senate Chambers 7,383 legislators, 2,145 are women this year. 6 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
STEVEN D. GOLD AWARD Analyst David Teal Honored for Service to Alaska, Nation David Teal, director of the Legislative Finance Division in Alaska, is the 2019 winner of the Steven D. Gold Award for his significant contributions to public financial management and state and local finance. Teal was honored at the Cap- itol Forum in December for his commitment to strength- ening the legislative institu- tion in Alaska and around the country. Teal has been in state gov- ernment in various capaci- ties for nearly 37 years, the last 22 of them as director of the nonpartisan Legislative Finance Division. During his tenure with the legislature, he has strived to provide the body with precise, unbiased data and research to inform the decision-making of Alaska’s NCSL lawmakers. Teal says his goal David Teal, left, director of the Legislative Finance Division in Alaska, received the Steven D. Gold is “to make the budget pro- Award from NCSL Executive Director Tim Storey at the Capitol Forum in Phoenix in December. cess work as smooth as it can, making sure that everyone is President Cathy Giessel (R). working from the same basic Steven D. Gold Award “We celebrated our 60th an- assumptions on revenues and niversary as the 49th member The Steven D. Gold Award honors significant contributions expenditures, so legislators are to the field of public finance in intergovernmental relations. of the union this year. Be- not arguing about the facts, It is given annually by NCSL, the Association for Public Policy cause of our relatively youthful but are just debating policy. Analysis and Management and the National Tax Association in institutions, the people who That doesn’t make it easy, but memory of Steven D. Gold, an active member of all three or- handle the tillers of govern- it certainly helps.” ganizations. Gold made significant contributions to the fields ment, especially our analysts, Speaker of the House Bryce of state and local finance and intergovernmental relations. He provide critical knowledge had an exemplary career as a state and local fiscal analyst and Edgmon (I), who has known and experience that inform served as director of fiscal studies at NCSL. Teal since he joined the fi- lawmakers‘ decisions. Mr. nance division, describes Teal Teal, in his capacity, has been as even keeled. “I’ve never National Association of Leg- lative fiscal analysts. involved in over a third of all once seen him off his game islative Fiscal Offices and the Teal, who retired at the end the budgets in Alaska’s history. under the most trying of cir- Western States Legislative Fis- of last year, is recognized by David leaves public service cumstances,” Edgmon says. cal Officers Association, Teal both parties for his commit- with deep tracks grooved into “David has kept his cool every has provided expert guidance ment to the legislative institu- the future for successors to moment in his work with the to legislators and legislative tion, and his nonpartisan work follow.” legislature.” fiscal staff across the country is deeply respected. “Alaska As a former president of the and has mentored many legis- is a young state,” says Senate —Erica MacKeller JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 7
Innovations Ideas for strengthening the legislative institution MODERNIZING CONGRESS States Show the Way BY NATALIE WOOD ment in at least one area, such as parliamentary These days, most headlines about Con- procedure or civics edu- gress tend to shout about its dysfunction, cation. Householder also sigh over its inertia or bemoan its extreme described the array of polarization. Over the past year, however, training and professional a bipartisan committee of 12 members of development opportuni- the U.S. House of Representatives, five of ties NCSL offers. whom are former state legislators, has got- Diane Boyer-Vine, ten attention for the opposite reasons. legislative counsel and The U.S. House established the Select head of the legislative Berkeley C. Teate/NCSL Committee on the Modernization of Con- data center in California, gress in January 2019 to focus on stream- demonstrated her state’s NCSL’s Natalie Wood, foreground, testified on rules and pro- cedures before a House select committee in December, lining legislative procedures; creating a “Member Portfolio” web leadership pipeline; boosting staff diver- application, which al- During the committee’s final hear- sity, recruitment, retention and compen- lows legislators to access ing, NCSL staff shared how the legisla- sation; and improving technology, innova- nearly real-time updates on amendments tive process can foster bipartisanship and tion and administrative efficiencies. This and existing law, all at the touch of an increase efficiency. Committee members isn’t the first time Congress has engaged iPad. Mike Rohrbach, chief information in such a process. Reform efforts occurred officer and director of information tech- asked questions about “regular order” (an in 1945, 1965 and 1993. What’s unique this nology in Washington, shared with the assurance that rules will be consistently time, however, is the committee’s strong committee why his state’s very accessible followed), decorum, bill referral, amend- desire to learn from state legislatures. website, remote video testimony capabili- ment processes, and committee author- Enter NCSL, which teamed up with ties and cybersecurity training make it an ity and jurisdiction. From intermixed various legislative staff to spotlight our IT leader. “Signing up to testify before a member seating in Maine to joint budget laboratories of democracy on Capitol Hill, committee should be as easy as booking committees in Colorado and Wisconsin to educating the committee about legisla- a hotel room. Tracking a bill should be as secret-ballot voting by committee chairs tive innovations, practices and realities easy as tracking a package,” Rohrbach told in Nebraska, Congress heard how states throughout the year. the committee. strive for bipartisanship. The committee received a primer on The committee also heard from Susan The modernization committee recently training, leadership development and Clarke Schaar, clerk of the Virginia Sen- released legislation asking the U.S. House new-member orientations from Stacy ate, about scheduling and calendaring to pass 30 recommendations that commit- Householder, director of NCSL’s leader- rules for busy lawmakers who often feel tee members unanimously support. The ship and international programs. It heard like they need to be in two places at once. committee will continue working this year, about Missouri’s “freshman tour,” which Schaar noted in her testimony that, un- giving hope that, despite what you might takes legislators around the state by bus like U.S. representatives, Virginia senators see in the news, Congress won’t always be to learn about each other’s districts. It (and most state legislators) don’t have handcuffed by hyperpartisan dysfunction. learned that legislators in Colorado, Ha- committee meetings that conflict with waii, Maine, Washington and Wisconsin floor session, so they can meet session at- Natalie Wood is the director of NCSL’s can receive ongoing professional develop- tendance requirements. Center for Legislative Strengthening. 8 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
StateStats Firearm-Related Deaths Drive Debates Over Guns Close to half of Americans know someone Two-thirds of gun owners say they have a incidents as “one or more individuals actively who has been shot. Nearly 40,000 firearm primarily for self-protection; 38% engaged in killing or attempting to kill people Americans died of gun-related injuries in cite hunting and 30% cite sport shooting as in a populated area.” The Gun Violence 2017, a 19% increase from 2012 and the major reasons they own guns. Opponents to Archive defines mass shootings as “incidents highest since 1993, according to the Centers gun restrictions point out that guns also save in which four or more people—excluding for Disease Control and Prevention. That lives. They are used defensively anywhere the shooter—are shot or killed.” Using these number includes suicides (60%), murders from several hundred thousand to a couple definitions, 85 people died in 2018 in active (37%), those involved with law enforcement million times a year, though these statistics shooter incidents, according to the FBI, and (1%), unintentional deaths (1%) and deaths often go unreported to the police and the 373 were killed in mass shootings, according with undetermined causes (0.1%). Between media and are tracked less thoroughly, to the Gun Violence Archive. 2012 and 2017, murders increased by 25% advocates say. With proponents on both sides of the gun and suicides by 15%. Guns continue to be the lethal weapon of choice for both, with As far as multiple murders go, definitions dispute able to cite studies supporting their firearms used in 75% of murders and 51% of matter. According to the Pew Research viewpoint, debates will surely continue in suicides. Center, the FBI defines active shooter legislative chambers this year. Partisan Differences Gun-Related Death Rates Percent who support: % Dem. % Rep. Per 100,000 total population, 2017 ME Protecting the right to 21 80 own guns AK VT NH Making gun laws stricter 86 31 WA MT ND MN WI MI NY MA RI Banning assault-style 88 50 weapons ID WY SD IA IL IN OH PA NJ CT Banning high-capacity 87 54 magazines OR NV CO NE MO KY WV VA DC DE Preventing people with HI CA UT NM KS AR TN NC SC MD mental illnesses from 93 82 buying guns AZ OK LA MS AL GA Doing background 2.5–10.3 checks for private and 91 92 TX FL 10.4–12.0 gun show sales Notes: Rates include murders and suicides. Deaths by guns that were 12.1–15.2 More than half of Amer- either unintentional, involved law 15.3–18.4 icans believe restrictions enforcement officers, or had AS GU MP PR VI on buying guns would 6% undetermined circumstances are not 18.5–24.5 not lower the number of reflected in the map. Although adjusted mass murder events. for differences in age-distribution and population size, rankings by state do not take into account other Lower mass murder incidents 46% state specific population characteristics that may affect the level of mortality. When the number of deaths 47% is small, rankings by state may be unreliable due to instability in death rates. Make no difference Result in more mass murders Gun Friendly 1. Arizona Sources: CDC National Center for Health Statistics, Firearm Mortality About a third of Americans own guns. States have been ranked by their concealed 2. Idaho by State, Dec. 15, 2019; Graduate 11% Institute of International and Devel- 57% carry and “castle doctrine” laws, access to Don’t own guns and live in a black rifles, and the number of prohibitions 3. Alaska opment Studies, Small Arms Survey, household with no guns 2018; Guns and Ammo magazine, 30% Own guns they have beyond the National Firearms 4. Kansas Oct. 23, 2019; Pew Charitable Trusts Don’t own a gun but live Act. According to Guns and Ammo maga- survey, 2019; Pew Research Center, Oct. 22, 2019; The FBI, 2019 with someone who does zine, the best states for gun owners are: 5. Oklahoma JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 9
FEDERALISM FILLING IN FOR THE FEDS Congress’ inability to get things done leaves states carrying a heavy load 10 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
BY ALAN GREENBLATT W ashington was broken long before impeachment got underway. The current Democratic House and Republican Senate have failed to reach agreement on almost any major policy change. During the first two years of Donald Trump’s presidency, when Republicans controlled everything, there were no notable enactments beyond the 2017 tax package and the 2018 criminal justice reform bill. Even the United States-Mexico-Canada Agreement, the White House’s replacement for the North America Free Trade Agreement, left much of NAFTA intact. The same lack of legislative productivity characterized most of Barack Obama’s time as president. In fact, it’s been about a decade since any real, innovative or ambitious policy achievement has come out of our nation’s capital. The situation is unlikely to change for the foreseeable future. Either party could take both Congress and the White House this year, but the Senate is looking much more likely to end up tied than controlled by one party with a filibuster-proof, 60-seat majority. JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 11
Congressional gridlock opens up oppor- Federal Grants to States by Program tunities for states to experiment, and not everyone thinks that’s a bad thing. For most Percentage change from federal fiscal years 2008-17, adjusted for inflation of American history, says Wisconsin Assem- bly Speaker Robin Vos (R), the president 100 of NCSL, power has been shifting inexora- bly toward Washington, D.C., with groups 87% Health 80 preferring to deal with a single venue rather Non-health than 50 separate state capitols. He welcomes 71% Total federal grants to states 72% a reversal of that trend. 60 “My preference has been, and always will be, that states are where the bulk of pub- lic policy should occur,” he says. “I prefer to 40 40% have that contest of ideas, where one state advances or falls behind because of the poli- 20 cies local officials are putting into place.” 6% Perennial Time-Consumers 0 -3% In 2020 and beyond, legislators’ time Medicaid Other Income -7% Total grants Health health security Transportation -11% Nonhealth will be monopolized, as it always has -15% been, by traditional tasks such as bud- -20 Education Everything else geting and taxation, and education and Source: The Pew Charitable Trusts, 2017 health care funding. And, this year, with the census coming up, preparing for redis- tricting will be a front-of-mind matter in transportation funding won’t be delayed most legislatures. for years, as happened the last time. There Although there seems to be help avail- are reasons for optimism. A Senate com- able for new federal priorities such as opi- mittee approved a $287 billion package in oid addiction and school safety, Trump’s July last year, and in November, Congress budgets have proposed deep cuts to other repealed a $7.6 billion rescission of high- domestic programs. These generally have way dollars scheduled to take place this not gotten traction in Congress, but state summer. “We’re moving in the right direc- lawmakers recognize they can’t count tion,” Tymon says. on infusions of federal cash any more for • Legal Marijuana. Marijuana remains longstanding programs. And that trend is “MY PREFERENCE HAS BEEN, AND a Schedule I substance, making the pos- likely to continue. session and sale of marijuana illegal under Legislators will face several perennial ALWAYS WILL BE, THAT STATES federal law. However, 11 states, two terri- issues in the coming years that Washing- tories and the District of Columbia have ton has either failed to address or refused ARE WHERE THE BULK legalized its use by adults, and another to fund: 22 allow its use for medical reasons. This OF PUBLIC POLICY legal inconsistency will keep lawmakers • Infrastructure Funding. The federal Highway Trust Fund has been falling short SHOULD OCCUR.” busy unless Congress decides to remove by billions of dollars for years, yet the fed- marijuana from the controlled substances eral gas tax hasn’t been increased since list or reclassify it as a Schedule II or III 1993. Knowing they need a reliable source Speaker Robin Vos, Wisconsin substance. of increased revenue, 30 state legislatures • Medicaid Costs. Federal efforts to have raised their own gas taxes since 2013. overhaul this costly state/federal pro- “People should not mistake the increase in gram have fallen short. Further changes in investment at the state level as a substitute way and Transportation Officials. health policy may be in limbo for a while. for increasing investment at the federal The federal highway funding bill is due Policymakers will have to wait to see the level,” says Jim Tymon, executive director for reauthorization this year and state law- full ramifications of a federal court ruling of the American Association of State High- makers are hoping their regular source of in December that found the Affordable 12 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
A young Salvadoran woman is taken into custody for illegally entering the United States by crossing the Rio Grande River in Texas. Care Act’s individual mandate unconsti- above, there are important concerns— tutional, putting the entire law’s future in some high-profile, some not—that states doubt. Some 20 states have sought federal will have to deal with in the coming years waivers to impose work requirements on because federal lawmakers have failed to Medicaid recipients. Those have largely provide any new help with either policy been held up by the courts, but in Decem- direction or funding. ber, South Carolina was the first state to receive federal approval to impose work Election Security requirements under traditional Medicaid, In December, Congress agreed to provide not just the ACA expansion. Ballot initia- $425 million more for election security. tives to expand Medicaid, which voters That represented a compromise between approved in 2018 in Idaho, Nebraska and House Democrats who wanted $600 mil- Utah, are expected this year in Missouri lion, and Senate Republicans who had ap- and Oklahoma. proved only $250 million. It came on top of • Immigration, Abortion and Gun $380 million Congress approved in 2018. At Rights. With little federal action on highly the time, voting security advocates worried partisan and contentious social issues, red that not only was that not enough, but that and blue states will continue charting their the money arrived too late, on the very eve separate courses when it comes to sanctu- of the election year. ary cities, abortion limits, gun control and “This money is wonderful but not To better secure ballots, only eight states other matters. enough to make the states capable of step- are expected to rely entirely on paperless But beyond the perennial issues listed ping up to foreign meddling,” says Wendy voting machines for the 2020 election. JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 13
Vaping on the Rise With Teens Students’ past-month use, by grade 25 25% 20 20 2017 20% 2019 15 15 10 11% 9% 10 8% 5 4% 0 5 8th grade 10th grade 12th grade Source: Pew Research Center, A pedestrian exhales vapor from a vaping device while waiting to cross a busy street in University of Michigan data, Jan. 2020 Philadelphia during rush hour. 0 Underhill, director of NCSL’s elections and says. “It works the opposite of the way most Although studies on the health effects redistricting team. technologies work, where you do updates of vaping have been inconclusive, 2,561 States have already done an impressive all the time with your iPhone.” people in 50 states, the District of Colum- job on their own of “hardening their cyber bia, Puerto Rico and the U.S. Virgin Islands shells around elections,” Underhill says. Vaping and E-cigarettes have been hospitalized for lung injuries Election officials have to perform a tight Originally touted as a healthy, easy way associated with vaping, as of Dec. 31, 2019. dance between addressing real vulnerabil- for adults to stop smoking (60% easier than Fifty-five of them, ages 17 to 75 and from 27 ities and not fostering panic, since under- drug-based methods, some studies sug- states and the District of Columbia, have mining public confidence is at least as great gest), the use of electronic cigarettes—or died, according to the CDC. Most patients a threat as actual hacking. vaping—first drew concerns over the strong reported using THC-containing products of To better secure ballots, the number of appeal flavored varieties had to young unknown origin. states relying entirely on paperless ma- people, fueled, some argued, by aggressive Massachusetts lawmakers were the first chines is expected to fall to eight, six fewer youth-targeted marketing campaigns. Vap- to pass a state ban on flavored vaping prod- than in 2016. ing devices—also called vapes, e-hookahs, ucts. In at least nine other states, governors One other move states could consider vape pens, tank systems and mods—work have used executive orders or state health making is rewriting the regulations that by heating a liquid that, according to the departments have used emergency rules to lead to long delays in certification of voting Centers for Disease Control and Preven- establish bans. software and equipment, says Marc Law- tion, most commonly contains nicotine, Courts have been skeptical about these rence-Apfelbaum, senior adviser on for- THC or cannabinoid oils, but sometimes moves, but other state legislatures may de- eign interference and online threats at the other additives, to produce a vapor that is bate the pros and cons this year of impos- Campaign Legal Center. Last year, states inhaled. ing bans that are stricter than the new fed- spent just 8% of the $380 million autho- Trump threatened to ban most forms eral regulations. rized by Congress ahead of the midterm of flavored e-cigarettes last fall, because, Regulatory restrictions, vaping device elections, in large part due to the amount of he said, “We can’t have our kids be so af- companies argue, would only impede time it takes to update equipment. (They’re fected.” On Jan. 2, the administration an- adults who choose to vape. expected to spend 85% of the sum in this nounced a plan to ban most flavors, but year’s elections.) not all. Health advocates warn that this left Children and Youth “It takes a long time to get anything certi- open a loophole that tobacco companies When it comes to children’s programs, fied, which costs vendors time and money, can exploit, marketing their products, per- “we have an imbalanced federal fiscal sys- and once you’ve deployed it, you have to haps misleadingly, under the flavor labels tem,” says Timothy Conlan, a professor of start all over again,” Lawrence-Apfelbaum still allowed. government at George Mason University. 14 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
Since 2015, the share of federal spending on K-12 education has dropped by 12.1%, and States have changed zoning regulations to nutrition assistance has fallen even more. promote more affordable housing. Federal spending currently is focused on Childhood Education Department. defense and entitlements, which drives Child care came up repeatedly as an down spending on programs that benefit issue of concern in gubernatorial races children and young people, leaving that job in 2019. And even the feds are spending largely to the states, he says. That’s not a more on child care and early childhood new dynamic, but the decline over the last programs in general. “We are seeing states five years is notable. starting to increase funding and leveraging Since 2015, the share of federal spending these federal dollars with more savvy,” says on K-12 education has dropped by 12.1%, Ed Stierli, director of state campaigns for while nutrition assistance has fallen even Save the Children Action Network. more, according to First Focus on Children, “FROM OUR POINT OF VIEW a bipartisan organization that advocates Affordable Housing for spending on children and families. At IN OREGON, IT WAS Traditionally, legislators haven’t had this point, federal programs aimed at the to think much about housing. The fed- VERY CLEAR THE STATUS QUO young make up just 7% of all federal spend- eral government has provided funding for ing. “The share of spending for kids is at an ISN’T WORKING.” low-income housing, while localities have all-time low,” says Bruce Lesley, First Focus set nearly all the rules. But the days when president. states could stand idly by appear to be over. That leads to some big disparities among Representative Julie Fahey, Oregon “Traditionally, this has been the purview states. Some are still below their pre-reces- of the federal government and localities,” sion spending levels on K-12, while others says Oregon Representative Julie Fahey (D). spend nothing on early childhood educa- “From our point of view in Oregon, it was tion beyond what the federal government very clear the status quo isn’t working.” provides. gap does not exist among younger adults. Fahey co-sponsored a law last year that Children lack political clout, but the Finding ways to pay for universal effectively bans single-family zoning in the politics around children’s programs might programs remains a struggle, but it’s state. Oregon’s law was especially ambi- be changing as the demographics of leg- becoming more of a priority in many tious, but states from Massachusetts to Ha- islatures evolve. Older women are much states. Colorado and Rhode Island have waii have enacted laws aimed at pushing more likely than older men to support ef- ramped up their spending on early localities to change zoning regulations to forts such as Head Start and the Children’s childhood and pre-K programs, and encourage more building. “We’ve viewed it Health Insurance Program. But that gender New Mexico has just created an Early as a local issue, but this absolutely is a state- JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 15
wide issue, every bit as much as educa- State Alliance in Lieu of Paris Agreement tion or health care,” says California Senator Scott Wiener (D), who has sponsored leg- Nearly half of the states will remain committed to meeting the goals of the islation to prod local governments to build global compact to reduce greenhouse gas emissions. more housing near public transit routes. ME Wiener’s bill was unsuccessful last year, but California did enact a statewide AK VT NH rent-control measure, along with other tenant protections. Inland states as well WA MT ND MN WI MI NY MA RI will increasingly find themselves called on ID WY SD IA IL IN OH PA NJ CT to confront housing questions, says Mark Treskon, a senior research associate at the OR NV CO NE MO KY WV VA DC DE Urban Institute. “There’s going to be more active discussion in states where there are HI CA UT NM KS AR TN NC SC MD cities with really profound housing-cost is- sues,” he says. AZ OK LA MS AL GA Climate Concerns TX FL Engaged attention to climate policy has switched from the states during George W. Bush’s presidency, to Washington, D.C., AS GU MP PR VI under Obama, and back to the states un- Committed to climate goals der Trump. It’s an example of the “whip- Source: The Pew Charitable Trusts, 2019 lash effect” some aspects of federalism are experiencing, says Conlan, the George Mason University professor. At a time of ing renewable power, subsidizing electric not going to get it from the federal level, profound polarization, the policy course vehicles and requiring some buildings to they’re turning to the states.” an issue takes can change rapidly with be remodeled, among other strategies. swings in partisan control. “Federalism Lawmakers in Arizona, Montana, New Power to States has become polarized in a way that we ha- Jersey and New York have produced cli- The list of these difficult, federally ne- ven’t seen in a very long time, and maybe mate-related letters or resolutions. glected issues goes on. States are being ever,” he says. GOP lawmakers support alternative en- encouraged to take on more of the costs of Much of the climate action in the states ergy sources, such as wind, for their eco- responding to natural disasters, for exam- is taking place at the executive level. Dem- nomic development potential but remain ple. The threat of trade wars has prompted ocratic attorneys general are routinely skeptical about the extent to which human some states to drum up their own inter- suing the Trump administration over cli- activity is contributing to climate change. national deals. And workforce training mate questions and other environmental That doubt is keeping most of them from concerns have legislators seeking better issues as part of their record-shattering actively supporting any climate change alignment between their education and docket of lawsuits against Washington. effort, says Barry Rabe, a public policy pro- economic development agencies to ad- Half the nation’s governors have joined fessor at the University of Michigan. “As dress skills gaps that leave millions of jobs the U.S. Climate Alliance, pledging their states think about their economic future, unfilled. states to abide by the terms of the Paris their ability to tap fossil fuels in their states In 2020, states will have to find their own climate agreement, even as Trump moves becomes a bigger force in state politics way on these and still other issues, with lit- to withdraw the nation from the accord than it was 10 or 15 years ago,” he says. tle help expected from Washington. altogether. Inaction on climate change at the fed- That’s a challenge Vos is willing to take Lawmakers in a handful of states have eral level “has created a desire for policy on: “I think that’s in essence what the gone further. Hawaii was the first state, in certainty, whether you’re a state govern- founders intended, having power resting in 2017, to enact laws adhering to the Paris ment or a private company,” says Janet the states.” goals, with measures reducing greenhouse Peace, vice president of the Center for gas emissions and promoting carbon se- Climate and Energy Solutions. “Most big Alan Greenblatt is a senior staff writer with questration. In Washington, lawmakers companies see that we’re going to have Governing. passed five climate-change bills mandat- some climate policy in the future. If you’re 16 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
TOOLS FOR THE STAFFER’S TOTE BAG Your job isn’t easy. We get it. But with the right tools, any legislative staffer can be effective. NCSL is here to help as you get ready for the next session. From e-learning to our award-winning publications, we’ve got the resources you can rely on to do your very best. Most are available for free on our website, www.ncsl.org, or by emailing us at getinvolved@ncsl.org. LEGISBRIEFS Two-page briefs get you up to speed on legislative issues–the problem, possible solutions, the experiences of 2020 CALENDAR NCSL’S other states, and federal involvement. Be sure to save the date for these NCSL ISSUE events to learn from and network with colleagues: SPECIALISTS NCSL.ORG • NCSL Legislative Staff Week, May 4-8, Have a question Review 50-state searchable databases of bills 2020 about a policy or to give you a national perspective on specific • Legislative Summit, Aug. 10-13, 2020, procedural topic policy areas. Webinars and videos will help you Indianapolis, Ind. but don’t know do your job better. And the NCSL Blog and Our • Legislative Staff Management Institute, who to ask? Find American States podcast will keep you informed Aug. 28-Sept. 4, Sacramento, Calif. NCSL’s staff listed about state legislatures, politics and policy. • Staff professional development by the issues they seminars, September and October, 2020. cover online or call • Staff Certificate Program, Oct. 6, 2020, 303-364-7700 with STATE LEGISLATURES requests. Atlanta, Ga. MAGAZINE Get inspired, gain insight, discover new perspectives. NCSL’s magazine of policy and politics shines the spotlight on you and your colleagues like no other publication out there. It’s sure to enlighten and, we hope, entertain. MASON’S MANUAL A handy reference to basic parliamentary rules and procedures. Be sure to look for the revised edition coming in late 2020!
Some states tax barbers’ services. TAXATION Services Targeted for Taxes Lawmakers consider taxing services as consumers spend less on retail goods. BY JACKSON BRAINERD Most state legislatures adopted their 3.25% in 1970, 5% from 1990 through 2000, sales taxes between 1930 and 1960 and and 6% today. The sales tax is not what it used to be. chose to apply the tax to the sales of tangi- Tax policy experts on both ends of the Although it’s still one of the most im- ble personal property, which represented political spectrum generally agree that portant and longest-standing sources of 60% or more of the average consumer’s good tax policy follows the widely ac- revenue for the 45 state governments that total personal expenditures during that cepted principle of “broad bases, lower levy it, the tax has steadily lost ground for time. Since then, however, the amounts rates” and should fall to a greater degree the last several decades as consumers in- consumers spend on tangible property on the things people buy the most. creasingly spend more on services than on and services have basically reversed. Ser- The number of services taxed by each retail goods. vices now make up about two-thirds of state varies fairly widely, according to a re- Services can be grouped in broad cate- personal consumption. cently updated survey by the Federation of gories, such as professional (accounting, This narrowing of state sales tax bases Tax Administrators. Only six states—Dela- legal), personal (tanning, salons, barbers) has resulted in dwindling revenue. To ware, Hawaii, New Mexico, South Dakota, and business (advertising, magazines). compensate, lawmakers have gradually Washington and West Virginia—tax ser- Many of these are exempt from sales taxes. raised sales tax rates, which averaged vices broadly and few have expanded their 18 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
State Taxation of Services, 2017 Services Some States ME Update to State Taxation of Services Survey done in 2007 Have Begun to Tax AK VT NH • Pet boarding, pet grooming, pet day care WA MT ND MN WI MI NY MA RI • Personal transportation, including ID WY SD IA IL IN OH PA NJ CT peer-to-peer service • Scenic and sightseeing transporta- OR NV CO NE MO KY WV VA DC DE tion in a motor vehicle • Motor vehicle towing HI CA UT NM KS AR TN NC SC MD • Parking lots and garages AZ OK LA MS AL GA • Dating referral services • Identity theft protection TX FL 1-50 services taxed • Streaming media 51-100 services • Shipping and handling when part More than 100 services of a taxable sale AS GU MP PR VI 2007 survey response (states didn’t respond to 2017 survey) Source: Federation of Tax Administrators, 2017 State Taxation of Services Survey task as well. No industry wants to see new tax burdens, and service taxation debates are prone to hyperbole. A proposed tax tax bases. Perhaps most notable in the IT’S NOT ONLY BUSINESSES on legal services in Wisconsin in 2009 updated survey was how little things had resulted in the state bar claiming it was changed from when it was last conducted, THAT OPPOSE TAXING SERVICES. nothing less than an attempt to tax “justice in 2007. Iowa and Kentucky both ex- ADDING TAXES TO THE COST itself.” And in Washington, D.C., a tax on panded their tax bases in 2018 to include a health club services was derided by the in- handful of services (tanning, landscaping, OF POPULAR DIGITAL GOODS, dustry as a penalty for being healthy. subscription services), and Connecticut added dry cleaning and interior design It’s not only businesses that oppose ENTERTAINMENT AND OTHER taxing services. Adding taxes to the cost of work in 2019. (Connecticut has added 20 services over the last decade, the most in CONSUMER SERVICES CAN popular digital goods, entertainment and the country.) other consumer services can also draw A significant majority of states, however, ALSO DRAW CRITICISM FROM criticism from the public. In fact, voters added fewer than 10, if any. But that may in Arizona and Missouri recently passed THE PUBLIC. constitutional measures that ban the taxa- be changing. In a December special session, Utah tion of services. And at least two groups in lawmakers passed an extensive tax reform Utah have already begun gathering signa- package. Along with lowering income tures to force a referendum on the ballot taxes, restoring the full grocery tax and to give voters the opportunity to repeal the repealing exemptions on motor fuel taxes, Massachusetts is considering ways to tax state’s new law. the legislation also eliminates certain Although concerns about shrinking services. sales tax exemptions (college sporting sales taxes have been building for decades, The limited action on this front is due events, newspaper subscriptions, exter- state legislatures have largely resorted partly to the challenges in administering nal car washes) and expands the sales to passing piecemeal efforts rather than and defining taxation of services. Many adopting measures to tax services broadly. tax to certain services (pet grooming and care, streaming media, parking lots and services are complex and industry-spe- This year may very likely feature renewed dating referral sites, to name a few). The cific, making them more difficult than tan- state efforts. loud buzz the overhaul generated in the gible goods for states to value, define and Beehive State will likely pique interest determine how to audit. Jackson Brainerd is a senior policy elsewhere. A revenue working group in It can be a very politically challenging specialist in NCSL’s Fiscal Affairs Program. JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 19
On the Same Page Successful bipartisan efforts from across the country Moving Toward the Middle Honest discussions bring people with diverse political beliefs a little closer. BY JULIE LAYS Talking politics around the kitchen table—even with beloved relatives—can be risky. Imagine expressing your personal, political beliefs with 522 strangers. That’s what a scientific sample of registered voters chose to do last October in a study looking at how deep the nation’s partisanship rift really ran. 20 | STATE LEGISLATURES | JANUARY/FEBRUARY 2020
The study, “America in One Room,” was organized by Helena, a nonpartisan problem-solving institution; MacNeil/Lehrer Pro- ductions’ By the People project; and the Center for Deliberative Democracy at Stanford University. Participants were recruited by the social research organization NORC, at the University of Chicago. The researchers wanted to know if our divisions and polariza- tion are as entrenched as many claim they are. They gathered “an accurate, representative sample of the entire American electorate in all its political, cultural and demographic diversity,” according to a news release. “We had a hypothesis that the American people are not as po- larized as the American political class, not as polarized as our elected representatives and politicians,” said Larry Diamond, a co-leader of the study and a sociologist at Stanford University. All Americans need, the researchers believed, was access to more nonpartisan information and factual discussions. Participants spent three days last October listening to expert briefings on topics like immigration, health care, foreign policy, the environment, and taxes and the economy; reading booklets vetted by both parties on the pros and cons of these contentious issues; discussing the issues in diverse, small groups; and asking questions of some 2020 presidential candidates. After the long weekend, the percentage saying American de- mocracy was working well doubled from 30% to 60%. Courtesy photos “WE HAD A HYPOTHESIS THAT THE AMERICAN This page and previous page: Voters sharing thoughts during the three-day “America in One Room” study weekend. PEOPLE ARE NOT AS POLARIZED AS ... OUR “People of all backgrounds discussed the most difficult issues ELECTED REPRESENTATIVES AND POLITICIANS.” that have pulled us apart as a country. With civil discussion, they came to understand and respect each other,” said Jim Fishkin, Larry Diamond, Stanford University co-leader of the study and director of the Center for Delibera- tive Democracy. “These conclusions deserve to be listened to by policymakers.” Surveys before and after the event showed shifts toward cen- trist policies among Republican and Democratic voters alike, more than in the control group. For example, support for ze- ro-carbon emissions for vehicles fell from 66% to 55%, while support for using more taxes and market incentives to address climate change increased from 61% to 72%. Support for rejoining the Trans-Pacific Partnership rose from 47 % to 74%, while sup- port for increasing the federal minimum wage to $15 an hour fell from 54% to 39%. “Even though I imagined there would be significant changes in opinion, the results far exceeded my expectations,” Diamond said. “From both ends of the political spectrum, there was movement toward greater moderation and prudence. Our participants left with much more hope for American democracy—and so did I.” Julie Lays is the editor of State Legislatures magazine. JANUARY/FEBRUARY 2020 | STATE LEGISLATURES | 21
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