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Not Just Power Grabs: Lame-Duck Lawmakers Are Rushing Many Controversial Bills

In the states holding post-election, pre-inauguration sessions this year, Republican legislators are passing sweeping bills on a wide range of issues -- some that weaken laws just approved by voters.

Michigan Capitol
Lawmakers in the Michigan Capitol building have been debating a host of bills since Election Day.
(AP//Carlos Osorio)
The Michigan Legislature has taken on an ambitious workload lately, considering bills regarding the minimum wage, paid sick leave requirements, criminal justice reform, pipeline construction, union regulations, brownfield cleanup, school safety and road funding.

And that's just since Election Day.

Bills that would strip power from incoming executive branch officials in Michigan and Wisconsin have received national attention, with Republican legislators accused of unfairly kneecapping newly elected Democratic governors. But those states, along with the handful of other legislatures holding lame-duck sessions this year, have been highly active on the policy front as well.

With the maximum amount of time possible before they have to face voters again, lawmakers are rushing through controversial bills that were harder to touch prior to elections -- or legislation that comes in direct response to measures approved by voters in November.

In Utah, for instance, the legislature already weakened a medical marijuana measure just passed by voters. In Wisconsin, the legislature moved to codify work requirements for Medicaid recipients. The Ohio House passed a "stand your ground" bill, shielding individuals who shoot intruders from legal liability, as well as a fetal heartbeat bill that would effectively ban most abortions.

But no other state has as full an agenda as Michigan. More than 300 bills have already passed at least one chamber during the current lame-duck session. It's not uncommon for the Michigan Legislature to take on a heavy load right after the election. In the 2012 lame-duck session, the state enacted roughly 200 new laws, including a right-to-work law.

"Many of the bills moving now are issues that were partially completed in the spring or summer and simply need to be finished up," says Gideon D'Assandro, communications director for Michigan House Speaker Tom Leonard.

But some observers see something more than legislative procrastination and last-minute dealmaking at work. Most of these states are controlled by Republicans who are giving up some share of power in the new year, either because of the election of Democratic governors or the end of GOP legislative supermajorities. In Ohio and Michigan, large numbers of lawmakers are retiring due to term limits.

"Most of the people who are voting on this stuff are never going to be running again," says Zach Gorchow, editor of the Gongwer News Service, which covers Michigan policymaking. "Two-thirds of the Senate and roughly half the House are leaving office."

Passing laws immediately after an election maximizes the amount of time that will pass before they have to face voters again -- for those lawmakers who will ever face voters again, that is.

"It's an opportunity to push through some last-minute items that otherwise aren't going to get through," says Timothy Nokken, a political scientist at Texas Tech University who has studied lame-duck sessions.


Overturning the Will of the Voters

Legislators in a lame-duck session experience a sort of "catharsis," says Stephanie Leiser, who lectures on public policy at the University of Michigan.

"They've just run this tough election," she says. "In Michigan and Wisconsin, you're just venting a lot of frustration and anger about how things turned out."

By the time Democratic Gov.-elect Gretchen Whitmer takes office in Michigan next month, she'll find some decisions have already been made for her. Outgoing Republican Gov. Rick Snyder has said he will sign a bill passed Tuesday to authorize a $350 million pipeline-and-tunnel project that Whitmer opposed on environmental grounds. On Tuesday, the legislature also cleared a bill that would make it difficult for the incoming administration to adopt environmental regulations stricter than required under federal law. 

"On some things, they didn't want to put their necks on the line before the election," says Gorchow.

Michigan legislators, like their counterparts elsewhere, have not been afraid to overturn or weaken initiatives that have just been approved by voters. That's partially because Michigan legislators have an unusual ability to counter ballot initiatives they don't like by approving the proposed ballot language and then later amending it. They're looking at weakening new voter-approved laws regarding voter registration, gerrymandering, marijuana legalization and labor.

"Lame duck is when the worst things happen," complains Danielle Atkinson, founding director of Mothering Justice, a progressive advocacy group that pushed for the November ballot measure to raise the minimum wage and require paid sick leave. "They've stripped the bill of anything meaningful."


Lame-Duck Dynamics

The atmosphere during lame-duck sessions is always frantic, says Leiser. Similar to the end of regular sessions, there's a mad rush to make late-night deals and push bills through. There may even be more impetus for dealmaking than during a normal session.

Lawmakers who seem to lack the bandwidth to take on more than one big issue at a time suddenly find their ambitions expanded. There are bills they know their colleagues want to get through, so vote-trading becomes accelerated.

"You've got a lot of people who are lame ducks and have their priorities they want to get done," says Leiser.

Lame-duck legislators know they won't have to face voters again, while their colleagues who are sticking around recognize they have two to four years before having to answer for any controversial laws.

"Democrats thought [Michigan's lame-duck] passage of right-to-work in 2012 could build up the energy they needed, but by the time the 2014 cycle rolled around, it was a total non-issue," says Gorchow, the Gongwer editor.

Concern about mischief-making during lame ducks led to the ratification of the 20th Amendment in 1933, which moved up the swearing-in dates for presidents and Congress from March to January, shortening the lame-duck period at the federal level. 

Of course, lame-duck sessions remain routine in Congress, with federal lawmakers meeting to try to address budget issues they didn't resolve before the election and pushing policy legislation when they can.

In Michigan, the current spate of legislation has led to protests and calls for a ballot initiative to limit lame-duck sessions to emergency measures only. But a more likely scenario is that the Michigan Legislature will pass a different bill that's been proposed: one that would add new hurdles to placing initiatives on the ballot in the first place.

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Alan Greenblatt is a senior staff writer for Governing. He can be found on Twitter at @AlanGreenblatt.
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