Why It's Important to Know Lawmakers' Day Jobs

Whether states are governed by a coalition of farmers and teachers or an alliance of corporate executives and insurance brokers matters.
October 2015
Alan Ehrenhalt
By Alan Ehrenhalt  |  Senior Editor

State legislatures are mysterious institutions, but there are a few things most of us know about them. We know which party is in control. We know when one of the leaders gets in trouble with the law. We can find out, for the most part, who gives money to candidates and how much they choose to give.

What we don’t know, at least at the moment, is what sorts of people are filling the seats -- which professions and occupations produce our state leadership. In particular, we don’t know much about how the professional makeup of legislatures has changed since Republicans took control of most statehouses in 2010. This isn’t a trivial issue, either. It matters quite a bit whether we are being governed by a coalition of lawyers and teachers or by an alliance of corporate executives and insurance brokers.

That’s why I was intrigued a few months ago when an enterprising reporter for the Arkansas Democrat-Gazette, Brian Fanney, reported that the farm bloc in that state’s legislature had doubled over the last decade, from nine lawmakers to 18 out of a total membership of 135, and that farmers were now the largest single occupational group in the state House and Senate. (The House speaker is a blackberry grower.) At the same time, the number of lawyers, traditionally the legislature’s largest bloc, had dwindled from 23 to 14.

It’s an interesting little morsel of information, especially when you consider that fewer than 1 percent of Americans claim agriculture as their occupation, and only 2 percent live on farms. In one state, at the very least, agriculture seems likely to be wielding political influence far beyond its actual demographic presence.

Fanney traces the increased presence of farmer-legislators in Arkansas to the installation of Republicans as the state’s majority party in the past two elections. Farmers, especially those with the financial resources to run for office, are by and large conservatives. Therefore, the more Republican seats there are in certain legislatures, the more visible agriculture will be as a potent force in the policymaking process.

It’s just one stray piece of evidence. It’s not that farmers have achieved disproportionate clout all across the country. But it’s a reminder that the cast of legislative characters in any state can change dramatically over the course of a few years, and that often there are political reasons why this happens.

The one source of comprehensive information on this subject is the National Conference of State Legislatures (NCSL), which does a 50-state survey of legislative occupations every decade or so. But the most recent NCSL information dates back to 2007, so it doesn’t reflect the Republican tidal waves in the 2010 and 2014 elections, events which almost certainly ushered in changes analogous to the clustering of farmers at the Arkansas Capitol in Little Rock. NCSL is currently working on a new survey, and when it is released we will know much more about this underinvestigated aspect of American political life.

In the meantime, though, there are a few historical points worth making. It has long been a common perception that lawyers make most of the laws in this country and often serve their own financial interests in the process. That image was reinforced earlier this year when New York Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos were both indicted on charges that they used their private law practices for corrupt purposes.

Reading about all the corruption cases involving lawyers in politics, and especially in legislatures, it’s easy to conclude that the average legislative body is a nest of shady attorneys eager to skim what they can out of the public treasury. But the number of lawyer-legislators has been declining for more than a generation just about everywhere in America.

When NCSL started its occupational survey of legislatures in 1976, it found lawyers to be the single largest category, with 22.3 percent of the seats. By 2007, their numbers had declined to 15 percent. And more recent data from individual states suggest that the departure of lawyers from legislative service is accelerating.

When the Wisconsin Legislature met for its annual session this year, there were just 12 lawyers out of 99 members in the state Assembly, and only two in the 33-member Senate -- the lowest numbers ever recorded. The Missouri Legislature counts 21 lawyers among a total membership of 197, the fewest since 1891. The South Carolina Senate has seen so many lawyers depart in recent years that its Judiciary Committee is now chaired by a textile executive -- the first time a nonlawyer has ever held that position. The number of lawyers in key positions has declined as Republicans have consolidated their control, providing further evidence of the link between ideology and occupation in state politics.

Half a century ago, the notion that lawyers wrote most of the laws was pretty accurate. In New York state in 1969, lawyers constituted 61 percent of the legislative membership. In California, the figure was 48 percent. Small towns and rural counties were overrepresented in all levels of government at that time, and legislatures throughout the country were stacked with small-town attorneys who made their annual trek to the state capitol at the behest of a Main Street business establishment back in their hometowns.

That began to change in the 1960s and 1970s for a variety of reasons. Legislative sessions came to take up more of the year, making it difficult for attorneys to keep up with their practices while they served in office. Legislative pay fell further and further behind the amount lawyers could earn on the private side. And lawyers were permitted to advertise for clients, challenging the traditional idea that serving in office was the best way to promote one’s name and attract new business.

As the number of lawyer-legislators has steadily declined, two occupational categories have come to replace them. One is retirees. The same circumstances that have tilted lawyers out of elective office -- longer sessions and low pay -- have provided an opportunity for those who don’t have to worry about other jobs. NCSL didn’t even include the retiree category when it first surveyed the field in 1976, but retirees constituted 6.7 percent of the total in 1986, and their numbers had nearly doubled by 2007.

But the most important development of the past generation has been the number of officeholders who identify themselves as full-time legislators. As longer sessions became the norm even in many smaller states, legislative service attracted a larger share of politicians willing to do the job year round for the modest salary it generally offered. In 1976, only 2.7 percent of lawmakers listed legislating as their sole career; by 2007, the number was 16.4 percent, and full-time legislators had become the largest bloc in a majority of states. There is reason to believe the number will be quite a bit higher in the next survey; in Washington state, for example, where the sessions do not last all year, a recent survey nevertheless found 27 percent of the members to be working at their legislative jobs full time.

It’s a mistake to place sole importance on who actually fills the legislative seats. Occupational groups that have fallen behind in raw numbers have found it a relatively simple matter to influence legislative outcomes from the outside through campaign contributions. This has clearly been true of lawyers, and especially the trial lawyers who represent plaintiffs in civil litigation. As their physical presence in legislative chambers has diminished, their role in financing campaigns has increased.

Meanwhile, teachers and their affiliated pressure groups have played a similar game. The number of working K-12 and college educators serving in legislatures has always been small: In the 2007 NCSL survey, the two categories together amounted to less than 6 percent of legislative membership across the country. But teachers unions combined with trial lawyers to provide the financial support that made Democrats the majority party in American state legislatures as a whole for an entire generation, until the 2010 election turned the tables on them.

Arrayed against the teacher-lawyer alliance in most states has been the Republican business coalition backed financially by state chambers of commerce and related business pressure groups. Business has always been fairly well represented in legislative membership; if you add the categories of “business owner,” “business executive/manager” and “business non-manager” in the 2007 NCSL data, you get a combined total of more than 20 percent of all state legislators, although this is a lower figure than the one recorded in the 1976 survey. It’s reasonable to suppose that when the next batch of data comes in, the business categories will be up a few points, reflecting the Republican successes in the past two midterm elections.

The one thing we can say for sure about legislative bodies in any time or place is that their makeup depends on the incentives that propel some people rather than others into serving there. Those incentives change over time, and the ultimate legislative product changes along with them. That’s not to say that the Arkansas Legislature will be passing a raft of new farm subsidies over the next few years. But it is to acknowledge the likelihood that day-to-day legislating will reflect the altered membership.

Earlier this year, legislators in Arkansas increased funding for the state university’s department of agriculture. They also passed a bill protecting farmers from unscrupulous grain dealers. Coincidence? A lobbyist for the Arkansas Farm Bureau didn’t seem to think so. He told Fanney, the Arkansas Democrat-Gazette reporter, that he was expecting a season of “good public policy as it relates to what goes on at the farm.”