Politics

Issues to Watch 2008

That means focusing on infrastructure funding in response to the bridge collapse in Minneapolis. It also means trying to get homeowners into less-risky fixed-rate mortgages,...
by | December 31, 2007

That means focusing on infrastructure funding in response to the bridge collapse in Minneapolis. It also means trying to get homeowners into less-risky fixed-rate mortgages, to combat the wave of foreclosures that spread across the country last year. Water policy will be getting a widespread reassessment, as a result of the severe drought in the Southeast. And legislators will look to combat hospital-acquired illnesses, after reports highlighted the deadly toll of drug-resistant bacteria.

But even with these topics entering the political front burner, legislatures will still debate perennial hot-button issues, including the death penalty, gay marriage and immigration. Each has a new focus this year, however. For the first time, several legislatures are seriously considering extending marriage rights to same-sex couples. They are also preparing for a U.S. Supreme Court ruling on the constitutionality of lethal injection, a decision that could throw execution procedures across the country into doubt. On immigrant policy, perhaps the hottest of hot buttons, states may make it tougher for people in the country illegally to obtain driver's licenses.

So, the 44 legislatures with regular sessions this year will have a lot to do. That's not necessarily a bad thing, though. More than three quarters of legislative seats will be up for election in November. Voters will have an excellent opportunity to judge lawmakers on what they have accomplished.

Illegal Immigration

In 2006, Colorado and Georgia each approved bills heralded as the nation's toughest immigration law. Last year, Oklahoma stole the title. The question now is whether the stream of enforcement-oriented immigration initiatives -- Tennessee and Arizona also approved notable laws last year -- will continue and, if so, where.

That legislators will debate the issue in virtually every state is beyond doubt. But a smaller group of states will consider following the trend established by Colorado: overhauling almost every aspect of state immigration policy at once, rather than taking a piecemeal approach. Legislation proposed in Kansas and South Carolina, for example, would deny government benefits to illegal immigrants, punish employers that hire them and push local law enforcement officers to do more to identify them.

Supporters of these bills have a new argument at their disposal. They say that as immigrants flee neighboring states that have already acted, their states will see an influx of illegal resident unless they pass tough laws now. "Colorado, on our west border, has had legislation for two years," says Brenda Landwehr, a Kansas state representative who is sponsoring the legislation. "Oklahoma on our south border has passed legislation that went into effect November 1. We don't want to become a sanctuary state."

On the other hand, if the laws in Colorado, Georgia and Oklahoma are perceived as faltering, that may put a damper on activity elsewhere. Oklahoma's law faces a court challenge and some local law enforcement officers say they lack the resources to implement it.

The immigration debate will also have a new twist this year, thanks to New York Governor Eliot Spitzer. Last year, Spitzer had to scrap a proposal to allow illegal immigrants to obtain driver's licenses after it set off a political firestorm. States had slowly been moving in the direction of tightening driver's license restrictions, and the New York controversy seems to have accelerated the process.

A few days after Spitzer backed down, Oregon Governor Ted Kulongoski headed off legislative pressure by issuing an executive order requiring proof of legal residency to get a license. A possible sign of things to come: Matt Blunt, the governor of Missouri, a state that already restricted licenses to legal residents, is pitching a measure to create new penalties for acquiring a license illegally.

Infrastructure Repair

The I-35W bridge collapse in Minneapolis last summer prompted a reassessment of infrastructure across the country. State after state acknowledged roads and bridges in disrepair and quantified billions of dollars in needs. Those reports set the stage for policy makers to direct substantial revenue to infrastructure.

There's a dilemma for legislators, though. At the very moment that the need for new infrastructure spending seems most urgent, the primary source for transportation funding -- the gas tax -- is most reviled. Widespread agitation over high gas prices makes an increase in the levy dead on arrival in almost every state. As a result, legislators are looking elsewhere for funding.

In many places, the dollar figures involved are enormous. Iowa's department of transportation estimates that, in a state where the 2008 general fund budget came in under $6 billion, the state and its localities face a $28 billion transportation funding shortfall over the next 20 years. Just the most pressing needs will cost the state $200 million a year. Iowa is one of the few states mulling a gas-tax increase.

Proposals elsewhere run the gamut. Legislatures are looking at toll roads, even in states such as Arizona where they've long faced stiff opposition. Florida is considering following in Indiana's footsteps by leasing existing tolls roads to private companies in exchange for upfront payments. New Jersey Governor Jon Corzine also wants to get upfront payments from toll roads, but his preferred mechanism is a new public corporation that will oversee the roads and issue bonds. Many states are also looking at fee increases for vehicle registration and other transactions.

In addition to the safety risks exposed by the Minneapolis bridge collapse, the rapid rise in construction costs will also loom over each of these discussions. Clark Jenkins, a North Carolina state senator who is serving on a special commission on transportation funding, thinks those increases -- fueled by demand around the globe -- suggest states should borrow money to build now, before prices go even higher. "The inflation in construction costs itself is putting tremendous pressure on our traditional transportation funding sources," Jenkins says. "The longer you wait, the worse it's going to get."

Mortgage Foreclosures

In response to the national foreclosure epidemic, legislatures in many states are considering overhauls of the lending industry. The hope of reform-minded lawmakers is that they can prevent the next generation of homebuyers from entering into mortgages they won't be able to afford. However, lending reform generally won't help the hundreds of thousands of homeowners who already have adjustable-rate mortgages and whose interest rates are scheduled to skyrocket.

That reality has many states promoting counseling and education for people in bad loans, in the hopes of alerting them to the danger before their homes are at risk. It has also prompted some states and the federal government to go further and help homeowners in adjustable-rate mortgages avoid ever paying the exorbitant interest payments. "This is the only thing that will have an impact on people in unfair or troubling loans," says Steve Tobocman, a Michigan state representative.

A few states, such as Ohio, already have programs underway to offer refinancing for people in adjustable-rate mortgages. Ohio is contributing millions of dollars in state bonds to move low-income and middle-income households into 30-year loans with fixed interest rates. Some states are investing heavily in the concept, and others are considering doing so. Massachusetts' fund is $250 million -- $60 million from state bonds and the rest from Fannie Mae.

The Bush administration embraced a similar idea in December in a deal with lenders. The plan freezes interest rates for five years for many homeowners with adjustable-rate mortgages. The Bush plan also encourages these homeowners to refinance through state and local government programs.

States, including California, are also looking at promoting refinancing through bans on "prepayment penalties." These fees kick in if a home loan is paid off early, effectively serving as a deterrent to refinancing.

Lending reform and refinancing are just two pieces of the response to what has quickly become one of the hottest topics in state government. States also are looking at cracking down on appraisal fraud, overhauling the foreclosure process and assisting communities to reduce unoccupied homes. "The foreclosure crisis," says Steve Driehaus, an Ohio state representative, "is on the magnitude of multiple natural disasters across the United States."

Hospitals and Health

A "superbug" with a tongue-twisting name, methicillin-resistant Staphylococcus aureus (MRSA), made national headlines in October, when researchers at the Centers for Disease Control and Prevention announced that the bacterial infection kills close to 19,000 Americans a year, far more than previously thought. The MRSA report brought twin health care challenges into broader public consciousness: the problem of drug-resistant infections and the danger of hospitals (where most MRSA cases develop) as breeding grounds for these infections.

Many legislators were already familiar with the issue. In the past few years, about 20 states have enacted laws that require public reporting of hospital-acquired infections. And "probably every state that doesn't have a law will be taking up this issue" in 2008, says Lisa McGiffert, campaign director for the Consumers Union's Stop Hospital Infections efforts. The logic behind the laws is that when hospitals know the public will see their data, they are more likely to encourage sanitary practices that reduce infections.

Some states are looking at going further than merely requiring reporting. Pennsylvania, for example, passed legislation last year that will increase funding for hospitals that reduce infections. The pay-for-performance initiative dovetails with a new federal policy. Medicare plans to stop compensating hospitals for the cost of certain infections that occur after patients are admitted. The message: If hospitals allow infections, they, not the feds, should have to pay for them.

Legislators also are increasingly interested in measures that go beyond reporting to mandate that hospital patients be tested for drug-resistant infections. The MRSA scare has invigorated those efforts, as lawmakers discover that many hospitals aren't checking at-risk patients for the infections. New laws in Illinois, Pennsylvania and New Jersey require hospital screenings. Proposals to require reporting of MRSA specifically, rather than just hospital-related infections generally, also are under consideration in many states, including Washington and Virginia.

All of these efforts have, at times, run into opposition from hospitals. They argue that the hospitals that are most studious about gathering data -- rather than the ones with the biggest infection problems -- may end up looking the worst in the reports. Washington State approved an infection-reporting requirement this year, but Representative Tom Campbell, the bill's sponsor, says, "It took many years of confrontation. There's almost a sickness to be secret." Nonetheless, the idea that hospital-acquired infections are largely unpreventable, which was conventional wisdom in the medical community for many years, seems to be fading away.

Of course, legislators will also discuss a host of other health-related issues, from controlling Medicaid costs to expanding access to care. This could be a landmark year for universal coverage proposals, with several states, including New York, Colorado, Wisconsin and New Mexico mulling ideas to bring health care to all.

The most intriguing possibility is that California will try to cover all 6.7 million of its uninsured. Governor Arnold Schwarzenegger's plan requires employers to contribute to health care and also includes an individual mandate, under which everyone would be required to obtain coverage. The individual mandate concept is receiving attention across the country. How far it spreads may hinge on how well it works in the one state, Massachusetts, that's already trying it.

Gambling Expansion

After a four-year reprieve from widespread shortfalls, unhappy days are here again for state budgets. This year, policy makers will likely be forced to decide between two distasteful options: to raise taxes or cut spending. Some states, though, are looking at another revenue source to avoid this dilemma: gambling.

In Illinois, budget woes are driving lawmakers to look to a land-based casino in Chicago for revenue. Maryland residents will vote on the legalization of slot-machine gambling in November, after the legislature approved the referendum late last year. A $1.5 billion shortfall served as motivation for lawmakers to finally act on slots, after years of discussion.

Even in states without major budget problems, however, gambling expansion is on the table. For example, Kentucky's new governor, Steve Beshear, is asking the legislature to approve a plan for more gaming. Part of the reason that more and more legislatures have embraced casinos in recent years is that places without them see their residents head across state lines in droves to gamble. "The states are definitely competing for revenue," says Richard McGowan, a Boston College professor and gambling expert. "I would imagine the competition is going to get a little more fierce."

There's another less obvious factor, too. In some states, federal deals with Indian tribes mean that gambling is coming whether states want it or not. The federal agreements can ignore state revenue interests, creating an incentive for states to preempt them by cutting their own deals with the tribes.

That is the argument that gambling proponents in Massachusetts are making as the legislature mulls allowing casinos. Likewise Charlie Crist, the governor of Florida, opposed gambling during the 2006 campaign. But, faced with the threat of an unfavorable federal agreement, he inked a deal with an Indian tribe to expand gambling at seven casinos in exchange for hundreds of millions of dollars in payments to the state. Crist's decision angered Florida House Speaker Marco Rubio and other lawmakers, who plan to argue in court that it required legislative approval.

Gay Marriage

After Vermont became the first state to approve civil unions for same-sex couples in 2000, the response was at times "uncivil," as state Representative Johannah Leddy Donovan puts it. The backlash briefly cost Democrats control of the Vermont House. Last year, however, neighboring New Hampshire enacted civil unions with barely a peep of controversy. "There's been a sea change on this issue," Donovan says. That shift in favor of gay rights explains why another first may be on the horizon: legislative approval of gay marriage, without the prodding of a court.

Legislatures in a handful of states are looking seriously at taking that step, but it's not clear whether it will happen this year. In Vermont, Donovan serves on a commission evaluating gay marriage, although legislation this year seems unlikely. The California legislature has approved gay marriage twice in three years, only to have Governor Arnold Schwarzenegger veto it. In New York, the key stumbling block is opposition in the state Senate.

The main focus now is New Jersey. Garden State lawmakers approved civil unions in 2006, but many same-sex couples say that employers aren't recognizing the relationships. As a result, gay marriage is back on the table, with Governor Jon Corzine saying he'll sign it.

In some sense, these efforts confirm the predictions of social conservatives, who argued that domestic partnership and civil-union laws would lead to gay marriage. Such a move also could send ripples through the national same-sex-marriage debate because the state courts that have been the key players so far have made for easy targets, often derided as judicial activists. Currently, gay marriages are available only in Massachusetts, where they were prompted by a state Supreme Court ruling. Gay-rights advocates think that action by elected legislators would be more difficult to dismiss.

Most states, of course, aren't interested in legalizing same-sex marriage. Twenty-six states ban it in their constitutions and legislators in a few more, including Iowa and Indiana, could move in that direction this year. Florida voters likely will weigh in on a constitutional ban in November, as a result of a petition drive. State law will require the amendment to receive 60 percent to pass, which is likely to make the vote competitive and closely watched.

Water Policy

Parched by a prolonged drought, Southeastern states are reassessing anything and everything related to water policy. The lack of rainfall has hurt farmers and created fears of water shortages -- fears that, in some places, already have been realized.

The drought comes in a region unaccustomed to water woes. "Here in Atlanta," says Gil Rogers, an attorney with the Southern Environmental Law Center, "the big problem is that no one is looking at how growth is tied to our water-supply problems." That may be about to change in Georgia, where Atlanta's primary water source, Lake Lanier, has been hit hard by the drought. The Georgia legislature is expected to vote in January on a water-management plan under which the state would evaluate how much water it has and how much it will need. Alabama is formulating a similar plan.

Georgia also is looking at constructing new reservoirs, and states throughout the Southeast are encouraging conservation. North Carolina rapidly reduced its water consumption by 30 percent last year, after Governor Mike Easley called on residents to conserve.

Elsewhere, eight governors from Great Lakes states teamed up with two Canadian counterparts in December 2005 to sign a compact to regulate water withdrawal from the lakes and, most important, forbid it from being diverted to outside the region. The deal, though, has been slow to win required legislative approval. However, the drought in the Southeast and a comment from New Mexico Governor Bill Richardson -- "States like Wisconsin are awash in water" -- have created a new sense of urgency. "If an alarm bell was needed, it's been sounded," says David Naftzger, executive director of the Council of Great Lakes Governors. So far, Minnesota and Illinois have approved the compact. More states are expected to sign off this year.

Water policy is, of course, a perennial topic in the West. This year, the Oregon legislature will discuss water storage, as global warming creates fears that farmland will go dry. A hot subject for debate in California will be $10 billion in bonds for water projects.

Death Penalty

By agreeing to hear a case on lethal injection, the U.S. Supreme Court has created a de facto nationwide death penalty moratorium and turned the debate from abolition to administration. Once the court rules, at least by the end of June, a flurry of legislative activity is likely, as states try to conform to the edict.

At issue in the case, known as Baze v. Rees, is whether Kentucky's use of a three-drug protocol to carry out death sentences violates the Constitution's ban on cruel and unusual punishment. That protocol, which consists of a drug to cause unconsciousness, another to stop muscle movement and a third that causes cardiac arrest, has spread across the country since it was devised in 1977. Today, almost every state with a death penalty uses it.

Critics contend, however, that the drugs can cause severe suffering before they kill. A ruling might force states to try alternative methods, such as the use of a single drug. "The sentence is death, not torture," says Tennessee state Senator Doug Jackson, who chairs a committee studying the death penalty.

Regardless of whether the justices pass judgment on the three-drug protocol, court watchers think the ruling will clarify what constitutes cruel and unusual punishment. That will likely lead states to a broader reexamination of execution procedures, such as training for execution teams and whether medical staff have to be on hand. In fact, that process already has started in California, Florida and a few other states, as lower court rulings in the past two years called execution procedures into doubt. In some states, these sorts of changes can be made administratively, but in others legislative action is required.

The court is not expected to use Baze to end the death penalty permanently, but that likely will be a topic of discussion in Colorado, Illinois, Maryland, New Mexico and New York this year. In New Jersey, lawmakers abolished the death penalty in December.

Josh Goodman
Josh Goodman  |  Former Staff Writer
mailbox@governing.com

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