Smart lawyers, it is often said, don't ask questions in court unless they already know the answers. And smart governors try not to call legislatures into special session unless they have the script written ahead of time. "If a governor calls a special session without knowing what the outcome's going to be," says Mississippi House Speaker Tim Ford, "it's chaos for everybody."
Chaos is exactly what Ford and his ally, Governor Ronnie Musgrove, are trying to avoid this month. Musgrove has called a special session to address the issue of medical lawsuits. Mississippi has seen several big-dollar malpractice awards, making it harder for physicians to get insurance. Doctors need the coverage to work in hospitals, and that has created a situation that is reaching crisis proportions. Unfortunately, many physicians don't think Musgrove's proposal to form a new risk pool will solve the problem, and the trial lawyers' lobby is fighting any attempt to cap damages. So this will not be an easy event to script or control.
Still, the administration is trying. Because it's such a contentious issue, Musgrove announced his special session plans back in May, giving Ford and other legislative leaders weeks to hold numerous hearings, make conference calls to anxious members and do all the other outreach necessary to work out a deal before everyone convenes in Jackson. "We try to grease it on the House and Senate side beforehand," Ford explains. "It doesn't always work, but 95 percent of the time, it does work."
Maybe the success rate is that high in Mississippi, but it's been otherwise this year in much of the country. In Wisconsin, where the legislature isn't even supposed to meet in even-numbered years, a witch's brew of budget shortfalls and divided party control have made a long-running joke out of a special session that's been lingering since January. Republican Governor Scott McCallum pushed a plan to abolish revenue sharing with localities--an idea the GOP-controlled House embraced to some degree but the Democratic Senate rejected outright. "It's the session that doesn't end," says Dan Thompson, executive director of the League of Wisconsin Municipalities, "but not a lot is happening while it's not ending." Legislators did manage to get together on a bill to address chronic wasting disease in deer.
Republican Governor Jeb Bush of Florida had a similarly frustrating experience, even though both legislative chambers were in the hands of his own party. Bush spent months trying to reach agreement on budget, education and insurance regulation issues, and in the end, talked angrily about the difficulty of dealing with the "children" who run the legislature.
Wisconsin and Florida stretched out the frustration; more often, special sessions that self-destruct do so rather quickly. Kentucky, for example, concluded its regular session this year without passing a budget, and Governor Paul Patton called lawmakers back into special session a week later. Patton had hoped to work out a deal with legislative leaders, but he was unable to do so, and the House and Senate met for 10 days, arguing over the issue of public financing for gubernatorial candidates. Patton and most of his fellow Democrats wanted it; Republicans felt it would put them at a disadvantage in future campaigns.
The argument soon produced a stalemate, and nothing was accomplished on the budget at all. ("They read newspapers. They snacked. They milled around," the Lexington Herald-Leader reported.) And the state entered its fiscal year July 1 without a budget having been enacted into law. Patton announced he could fund operations according to the House-passed blueprint, inviting lawsuits, and the state's bond rating was lowered.
Deadlock arrived even faster in Iowa, where Democratic Governor Tom Vilsack called his legislature back just after the regular session in May, hoping to restore funding for education and health. The Republican majority snickered and adjourned after a single day without debating any bills. "We just came in and went home," says state House Majority Leader Christopher Rants. Vilsack then sat down with legislators and unhappily signed a package of budget cuts he'd accepted in meetings with legislators before a second special session met, also in May.
But there are more humiliating fates a governor can suffer: After New Mexico Governor Gary Johnson vetoed two budgets this spring, the legislature decided to bypass him and call itself into "extraordinary" session for the first time in state history. It met for one afternoon, overrode the governor and went home. Johnson complained that he had been steamrolled, but there wasn't much he could do.
If you think there have been a lot of special legislative sessions this year, you're right. Just two years ago, 12 states held them. Last year, there were 46; by June of this year, there had already been 25. Quite a few of these actually were short, non-controversial and little-noticed--it's the sessions that erupt in anger or sputter away in futility that attract most of the attention.
But the increase in overall numbers is no mystery. Special sessions follow budget problems, and practically every state can boast of those problems this year. Meanwhile, the states are coping with redistricting, an exercise frequently distracting enough to delay the passage of other crucial legislation. (Redistricting "just tied everything all to pieces," according to one lobbyist in Kentucky.)
The connection between redistricting and special sessions is easy to document. At the start of every decade, as states grapple with the need to redraw their district lines, the number of these sessions spikes up. There were 58 special sessions in 1981, for example, and 52 in 1991.
But some states seem to have grown addicted to the extra sessions regardless of the political and economic climate. Republican Mike Foster has been governor of Louisiana for seven years, and has called a special session every year. One reason is that the state constitution doesn't allow legislators to offer non-budget bills during general sessions in even-numbered years. As a result, legislators want the special sessions for their pet non-budget items, and lobby the governor to include the items on the special session calendar. The legislative leadership tries to hold the line, warning of undesired consequences. "The more you open up the agenda," says Jerry Luke LeBlanc, chairman of the Louisiana House Appropriations Committee, "the more potential there is for some controversies and some battles to erupt." LeBlanc and other legislators have put a ballot initiative before voters this fall to allow legislators to introduce a handful of non-fiscal bills in the off-year, so they can cut down on special session clutter.
Texas used to have a bad case of special session addiction. Despite its size and governmental complexity, the Lone Star state still officially meets just once every other year, and during the 1980s, it never seemed to be able to get its work done without scheduling at least one special session in the off-year. More recently, though, the state seems to have broken that habit; it hasn't held a special session since 1992. Governor Rick Perry resisted calls to hold a session on medical malpractice this year, largely because he couldn't get a deal worked out in advance. "This is a complex issue," says Perry spokeswoman Kathy Walt, "and one that the governor believes is best addressed in a full session of the legislature."
If a survey of the 50 governors were taken, Perry's would probably be the majority view. But there have always been some who see it the opposite way, viewing a special session as an opportunity to tackle a big problem at a time when legislators' full attention can be focused on that one issue alone. West Virginia's Cecil Underwood, who served in the 1990s, was determined to overhaul the state's antiquated tax system, and to convene a special session to get the job done. "When you get into a regular session," explains Robin Capeheart, who was Underwood's finance secretary, "you've got so many things floating around. With something as serious and broad as reforming tax structure, we didn't want to get in a situation where the need for horse trading would get in the way of a major structural proposal." Ultimately, something else got in the way: Underwood was defeated for reelection in 2000.
But West Virginia continues to stand apart from most other states in handling many of its pressing issues in special legislative sessions. There has been one every other month over the past two years, dealing with flood cleanups, medical malpractice, nursing homes and numerous other crucial and time-sensitive subjects.
Over the years, West Virginia's leaders have learned the same lesson as their counterparts elsewhere: It's better to script things in advance. Rank-and-file members are courted, says Keith Burdette, legislative director for Governor Bob Wise, but for the most part, they are presented with a limited menu of options and expected to sign off on the deals that have been worked out.
It's not impossible for the unscripted approach to succeed: Indiana legislators surprised themselves and most of the state this year by reaching bipartisan agreement on a new tax code in the final hours of a special session, long after they seemed destined to break up in failure. The outcome represented a triumph for both the Republican Senate and Democratic House, whose leaders were determined to prove they could work together.
But results like those are the improbable exceptions. Governors and legislative leaders nearly always end up happier when they follow the textbook and avoid high drama. The event may be a little dull--a legislative Kabuki play, with all the real action having taken place offstage--but when it comes to special sessions, spontaneity is rarely an ingredient of success.