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Supermajorities Aren’t Always so Super

Quite often, fighting breaks out within the parties -- not just between them.

The last day of Tennessee’s 2013 legislative session wasn’t a day that the state’s political leadership will remember fondly. It was a day of revolt and revenge in the legislature. Republican factions fought with one another. The house fought the senate. Very little was accomplished, leading to widespread complaints that scarcely anything of importance had been achieved in the entire three-month session.

Lt. Gov. and Speaker of the Senate Ron Ramsey spent the whole session working on a bill to redraw state judicial districts, something that hadn’t been done since 1984. But when the bill moved across the hall to the house, Ramsey’s own Republicans repudiated it. They said it had been rammed down their throats. Some 40 of them voted no, consigning it to a 66-28 defeat. Then, in retaliation, Ramsey and the senate killed a house bill that was supposed to pass easily, a bill making it less difficult for the state to approve charter schools. By the end of the day, members on opposite sides were scarcely speaking to one another. About the only group happy with the debacle was the legislature’s relatively small cadre of Democrats. “The result could not have been better for the people of Tennessee,” one said.

Asked what he thought of all this, Republican Gov. Bill Haslam gave the legislative session about the faintest praise imaginable: “I certainly wouldn’t call it a waste of time.” Haslam had his own reasons for being miffed at how the legislature had handled itself. One of his top priorities for the session had been a bill creating school tuition vouchers for impoverished students. The senate and house passed it, but added a bunch of riders. Haslam said the resulting bill wasn’t what he had in mind, and pulled it from consideration. No voucher program became law this year in Tennessee.

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In Missouri, the Republicans who dominate the legislature had to contend with Democratic Gov. Jay Nixon. But GOP lawmakers spent as much time squabbling with one another as they did challenging Nixon. House Speaker Tim Jones started the year with a single-minded priority: changing the state’s education rules to make teacher evaluations contingent on student performance. The GOP house majority wouldn’t give it to him. So Jones dumped two members of his caucus who refused to vote with him on education and scaled down his bill so that it would apply only to school principals. He still didn’t get what he wanted. Meanwhile, house and senate Republicans continued to argue over tax credits for economic development.

It isn’t just Republicans who have suffered from supermajority misfires this year. Illinois Democrats, who have an overwhelming legislative advantage and control of the governorship as well, struggled for months to find a solution to the problem of the state’s horrendous pension debt, which has climbed to nearly $100 billion. They left the Capitol in June having accomplished nothing, and with the leaders and the governor blaming each other.

The state house favored a pension fix, generally supported by the state’s business community, that would have reduced the debt largely by cutting back benefits for state workers and some retirees. Gov. Pat Quinn, who once said he was “put on Earth” to deal with the pension crisis, signed on to this approach. But the state senate, friendlier to public employee unions, backed a more modest plan that would have allowed workers and retirees to maintain their benefit levels while curtailing health coverage.

The two sides never came together. As the legislature adjourned in June without a deal, Quinn accused House Speaker Michael Madigan and Senate President John Cullerton of playing games with the state’s economy. Later, after Moody’s had downgraded the state’s credit ratings, Quinn called for a special legislative session in late June to try for a solution.

The thing that’s especially interesting about this infighting is that Tennessee, Missouri and Illinois all became supermajority states in 2013. That is, one party has enough seats in both legislative chambers to pass anything it wants without having to worry about a single vote from the other side.

The number of supermajority legislative chambers rose sharply with the results of last November’s election. Of the nation’s 99 chambers, more than 35 emerged from the election with one party holding at least a 2-to-1 edge. A total of 25 states came out with both chambers in veto-proof mode, counting some in which any majority vote is veto proof. And 23 of those have the governor in the same party -- some are Democratic, concentrated in New England and the Northeast, but most are Republican.

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The widespread consensus in both parties was that, all things considered, Democrats were in for a very rough year. Republican supermajorities would pass whatever they felt like passing, whether it was major tax reduction, curtailment of union bargaining rights or legislation imposing a strict conservative approach to social issues such as abortion and gay rights. The minority would have little or no say in the process. GOP governors would gladly put their name on the bills that reached them, and they would become law with less than a full-fledged open debate.

That’s been true in some states, but not in others. Arkansas, sporting a new Republican majority that needed only 50 percent plus one in each chamber to override the Democratic governor, did override him and passed a law criminalizing abortions performed after the 12th week of pregnancy. Republican states in much of the South and Great Plains have enacted laws broadening the rights of gun owners, moving swiftly despite impassioned but impotent Democratic protests. All in all, though, it is not accurate to claim that Republicans have spent the year riding roughshod over Democrats everywhere they are in control. In some places, such as Tennessee, they have been too busy riding roughshod over one another.

None of this is to say that intraparty differences have left most states gridlocked or unproductive in passing laws during the 2013 legislative sessions. On balance, this has been a fruitful year for state action, as Dylan Scott reported in last month’s issue of Governing. It is merely to say that use of the supermajority bulldozer as a legislative weapon has been less predictable than many experts foresaw.

In some cases, supermajorities have challenged governors by insisting on a policy of caution. Indiana endured an especially painful legislative session in 2012, as Democrats staged a well publicized walkout to prevent a quorum from forming to pass an anti-union right-to-work bill. The legislation eventually became law, after weeks of stalemate.

In November, Indiana voters gave Republicans supermajority status, so that the GOP no longer had to worry about Democratic obstructionism. But the first thing Republicans did after claiming their newfound power was to promise they would not abuse it. There would be no repeat of 2012. When incoming GOP Gov. Mike Pence began promoting a 10 percent income tax cut as the central item on his legislative agenda, Republican lawmakers made it clear they weren’t going along. For one thing, they said they weren’t sure the state’s budget could handle the revenue loss. But for another, they weren’t willing to ram it through on a partisan basis.

When you think about it, the whole notion of a supermajority deserves close scrutiny. It presumes that all or nearly all members of the majority party will vote the same way and follow the lead of the governor, if he or she is from their political party. In an era of intense partisanship at both the state and national levels, this does happen. But it is not the historical norm.

Before about 1960, most states actually had supermajority legislatures a good portion of the time. Very few people used that word, however, because there was no assumption that members of the majority would act in lockstep. In the solidly Democratic South, nearly every legislature was riven by factionalism that had little to do with party and everything to do with regional differences. In the Northeast and Midwest, most legislatures were strongly Republican, but the majority party was generally split between political moderates and laissez-faire conservatives. When the majority did act in unison, it was normally the result of strong leadership.

Tennessee is a good example. In the 1970s and 1980s, it was led by the forceful Ned McWherter, who served 14 years as speaker of the state house and then eight years as governor. McWherter had the ability and authority to bring differing factions together in a room and hammer out a deal. That’s how Tennessee managed to pass the nation’s first comprehensive health-care legislation at the state level. But there are few Ned McWherters around in state politics now, or if there are, they don’t get a chance to exercise their deal-making talents. That’s why Tennessee descended into chaos this year.

When legislatures take decisive action these days, it’s normally because most of their members see legislative issues the same way, not because they are prodded into it by powerful leaders. But that sort of unity doesn’t last forever. It’s fair to speculate that as the next two years unfold, more of the big supermajorities will fall into factional dispute not unlike Tennessee’s. “It’s easier to hold your party together when your majority is small,” Vanderbilt political scientist Bruce Oppenheimer told a reporter at the end of the Tennessee session. “As it gets larger, it gets harder to control.”

Brian Peteritas is a GOVERNING contributor.
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