Can States Afford a Part-Time Legislature?
by Michael Cain
This past week, Tod Kelly’s Off the Cuff post on Rowan County Clerk Kim Davis being jailed for contempt by a federal judge drew a huge number of comments (416 as I write this). One of the points that came up in the discussion was whether or not the Kentucky state legislature should have anticipated this problem and fixed it during their 2015 session. Curiosity, driven largely by my time on the permanent staff of the Colorado legislature, led me to go back and see whether such an expectation was “reasonable”.
The Kentucky General Assembly meets every year. In odd years, they are allowed a maximum of 30 legislative days to conduct their own and the people’s business, and must finish up by March 30. The legislature consists of the standard two-house model, a design intended to limit the speed at which legislation can proceed. Eleven of 100 House members and six of 38 Senate members were new to their respective bodies. Heading into the session, the legislature had a number of potentially contentious items to deal with. Kentucky is having (in a relative sense) a heroin epidemic; the state’s pension systems for public employees have an ongoing funding crisis; changes were required for the scandal-plagued governance body of the main Cincinnati area airport; and a proposed constitutional amendment to allow local governments to impose a sales tax of up to one percent. Based on my experience as a legislative staffer, that’s a very full plate.
SCOTUS decisions are not the only things that have arrived “out of the blue” with time constraints for state legislatures to act. Federal regulations are also issued on arbitrary schedules. The final version of the federal EPA’s Clean Power Plan was released in August this year. The plan requires individual states develop plans to meet specific targets on carbon dioxide emissions from electrical power generation. Many of the things states will have to do to meet their goals will require changes in statute. Several states have gone to court seeking delays in the dates in the rule because their legislatures will not be in session for considerable time. Texas is probably the best known example of this, since their legislature is not scheduled to meet again in regular session until January, 2017.
Kentucky’s marriage statutes contain a number of provisions that require modification in light of Obergefell. For example:
402.080 Marriage license required — Who may issue.
No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk.
The Kentucky Department for Libraries and Archives is responsible for the forms for marriage licenses and certificates. Gov. Beshear ordered to the department to modify the license to remove references to sex. The statute, though, would seem to require that licenses can only be issued if one of the parties is female. To complicate matters, Chapter 402 of the Kentucky Revised Statutes doesn’t define female anywhere that I can find. Clearly, most of this can be stricken and replaced with simple text that says marriage licenses are issued by the office of the county clerk upon presentation of the appropriate documents. Cases where one or both of the applying parties are minors is already addressed elsewhere.
The President of the Kentucky state senate has said that the legislature intends to do just that the next time they are in session. The next regular session is in January, and the Governor has declined to call a special session to modify the marriage statute. Kim Davis’s stated objection to the current situation is that her name has to appear on the marriage license. All indications are that the excitement of the past few weeks would have been avoided if the Kentucky legislature had been able to act in a timely fashion. In a couple of comments on Tod’s post, Will Truman points out that Utah managed to pass legislation this year prior to the Obergefell decision. Yes, they did. But they didn’t fix their marriage license statutes, which still include statements like “A marriage license may be issued by the county clerk to a man and a woman only after an application has been filed in his office…”. Utah, like Kentucky, will no doubt be tidying things up the next time the legislature meets.
For better or worse, one of the most important things that state legislatures do in this age is keep their state laws in compliance with federal laws and regulations. During my time as a legislative staffer, I was often at meetings of the House Appropriations Committee. A common question asked of bill sponsors at the committee hearing is “Why are we considering this bill at all?” While this is generally an invitation for the sponsor to make their case – again, since few bills start in Appropriations – the single most common short answer was “This bill brings state law into accordance with federal requirements.”
As the scope of the federal government increases, and as more and more federal legislation actually takes the form of rules made by agencies and court decisions, timeliness becomes a more difficult thing for part-time state legislatures to achieve. Congress gave up being a part-time legislative body decades ago. Instead they are in session almost continuously, with extensive recesses. If Kentucky’s legislature followed the same practice, leadership could have called them together for a few days [1] after staff had drafted a modified form of the marriage statutes that was consistent with Obergefell, debated the changes and passed them.
I appreciate all of the historical reasons that states have held on to their part-time amateur legislatures. The time for that is over, though. The legislature may not need to meet more days in total, but it requires the flexibility to meet on demand, so that problems requiring prompt action can be dealt with.
Photo credit: The Kentucky House chamber, from Wikimedia Commons.
Interesting post.
Do you know if any states have full-time legislatures? I imagine that NY and CA do but this is just is just a thought in my head.
My guess is that there is a romantic attachment to the part-time legislature and that going full-time would be too professional and mean you need to come up with the money for full-time salaries.Report
http://www.ncsl.org/research/about-state-legislatures/full-and-part-time-legislatures.aspxReport
Texas being the odd one: it’s the second most populous state, but has a part-time (that site calls it a “hybrid’) legislature.Report
National Conference of State Legislatures has a good breakdown, NY, CA, PA
http://www.ncsl.org/research/about-state-legislatures/full-and-part-time-legislatures.aspx
It really is a full time job and ought to be treated as such across the country. Even setting the lawmaking and budget decisions bits aside, oversight of an executive branch is an important responsibility that requires legislator (and staff) time and attention.Report
@creon-critic
I agree but I think attitudes like @damon’s are going to make it very hard. There is still substantial part of the country that wants government to be as unrealistically non-existent as possible. So the idea of more full-time legislatures is a categorical wrong.
Though I admit my bias makes me see why NY and CA need full time legislatures but Vermont might not.Report
@saul-degraw
Note there is a difference between my ideal amount of gov’t and the amount I’m willing to tolerate, which is much, much more than my ideal amount. But we can’t even call a hiatus on the amount, it’s always increasing. I see no reason why I should support making my legislature full time and have to pay them full time, because they’ll argue that they’ll loose money at the current salary if working full time and can’t have their own business, just so they can increase my taxes and make my life more burdensome for 12 full months vs the current 4 or so.Report
@damon
I can see your concern (though I disagree with it). I think the prescription is misdirected. The lobbyists are certainly full time. That is to say, making legislators part time reduces their capacity to develop the expertise they need to perform their duties.
I’d add that those whose top concern is smaller government could very well benefit from more full time legislators seeking to make their careers on identifying and curbing government waste, fraud, and abuse for instance. I see the whole, part time legislator thing as being penny wise and pound foolish. The budgets a legislature controls, even in Vermont $4 billion plus, and the general reach of the programs, departments, agencies of even a small state’s government, means (to me) it is worthwhile to invest in legislators having the capacity to oversee all that money and all those employees. I’m sure that I don’t have to convince you that a lot can go wrong inside a government department – especially absent sufficient oversight. While I like ombuds offices, public advocates, inspector generals and such, legislators have tools they can bring to oversight that make the executive take notice. My two cents anyway.Report
@creon-critic
That’s not a bad idea, but there would need to be some kind of directive or other incentive causing legislators to behave that way. As it stands, they get rewarded for spending money and cuts usually result in bad press, even if they are good, legitimate actions to reduce waste & improve efficiency.Report
I agree with @oscar-gordon. It’s a nice thought but I don’t see how making legislators full time does anything to change the incentives that lead to lousy oversight of the executive branch and lack of expertise. I won’t say that legislators have no incentive to oversee executive agencies or fix problematic policies but that incentive is complicated by political calculations and various partisan and other loyalties. A full time legislator will be as beholden to those things as a part time legislator. Further you can probably never explain an issue to someone who has a strong interest in not understanding that issue.
Think arguing sentencing reform to a person representing a district where the main employer is a prison, or the problems with fossil fuels to someone representing a district full of coal mines.Report
Except of course, that it’s not. As a percentage of GDP it’s been higher several times in our history, and per capita even more so. By # of government employees it’s been shrinking a lot of late.Report
Except of course, that it’s not. As a percentage of GDP it’s been higher several times in our history, and per capita even more so.
Huh? Real per-capita government spending is pretty much monotonically increasing. Federal spending leveled off from 1985-2000, but state spending continued to grow during that time.Report
Yeah, that “percentage of gdp” is what I get every year in salary so of course I don’t care…Report
Pa has a full time legislature too.Report
MD has only a part time legislature and I see no reason why they should convert to full time. Just more time to muck about with more taxes, more nanny state-ing, and tell me I can’t eat or drink certain things or own certain items. But then MD isn’t some backward anti progressive state like Kentucky and is reliable progressive/liberal and sensible isn’t it?Report
Part of the reason why so few states have full time legislatures and why New Hampshire tries to get buy with a large and unpaid legislature is that it fits well into certain myths that many Americans hold dear about the nature and composition of government. The idea of a professional politician who studies his or her craft with the care of another profession is anathema to a lot of Americans.Report
Yeah this is what I was alluding to. Lots of people including left-leaning people still have romantic visions of the citizen legislature/politician who takes time out of their careers to attend to the nation’s affairs and then retires. We would hate places like the Ecole Superiors in France which focus on breeding politicians and civil administrators.Report
Which is dumb because elected politicians do not raise in the hierarchy of offices without going through the ranks. Even when this happens fast like in the case of our current President, you still need to start local and go onto the national level. If most politicians were of the citizen legislature/politician type than we wouldn’t have anybody qualified for state level executive office, the Presidency or Congress because they didn’t do their time in lower level offices. Most of us probably do not want a President from nowhere running every time or even a governor of a low population, low key state like Delaware or Wyoming coming into office with no experience.
Americans have a love-hate relationship with civil servants. Public service is usually seen as dumping ground for people not good enough for a private sector job. Some civil service jobs have more of mystic and positive appeal though like the Justice Department, the FBI, the CIA, or the State Department. On a state level, prosecutors, police, and firemen also possess sex and mass appeal based on media portrayals. The idea that civil servants should be an elite cadre that gets special training and special schools would bristle many Americans the wrong way though.Report
On the flip side, if they don’t have enough to do, then they’ll find stuff to do, idle hands & devils & all that.
Perhaps we need more of a National Guard model of state legislator, Where it isn’t full time, but it does meet monthly for a few days with maybe one or two longer sessions during the year. I can also see the value of each member having a small, full time staff they direct to handle all the behind the scenes stuff.Report
Of course, in CA we have a full time legislature but also term limits that prevent anyone doing that full-time job from investing in it as a career. Which is stupid.Report
No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides at the time, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk.
…what a weird law. It doesn’t say *what* female it’s talking about.
I mean, the ‘over-18 or widow’ part says that such a female has to be one of the applicants, but it doesn’t say that about females *under* 18, who are just ‘the female’, not ‘the female applicant’.
Gay men getting married should probably just bring a female under 18 who lives in that county along for the time being, so she can be ‘the female’ under the law. 😉
Just kidding, but, seriously, I’m always amazed at how much completely dumbass wording there is in laws.Report
Note that even in a part time legislature most of the session is spent doing nothing in Tx it seems that work is done only near deadlines such as must pass by dates set by the rules. All a full time legislature seems to do is to to allow more taxpayer paid wasted time. The first month or so seems to be spent in organizing itself, which could be done by a session to elect the speaker and then a recess once the committees are set for a month or so.
It seems that in legislatures and in other areas work is only done by force of deadlines. (See labor negotiations etc) In addition there is the old saw that no ones liberty is safe when the legislature is in session.Report