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.