They went from being the center of governmental power in the colonial era to reaching a low point of influence following the Civil War, then have fought their way back to coequal status in state government over the past 50 years.
Long before NCSL arrived on the scene, legislatures played an enormous role in American governance, starting with the first session of the Virginia House of Burgesses in 1619. The legislatures that followed in the colonial period and early years of the republic had significant authority. In many instances, they appointed the governor and other top officials.
It is not surprising that people who freed themselves from the rule of a king did not want to put themselves under the strong hand of an executive officer. More than 200 years later, legislatures still maintained overarching authority in the states, the French observer Alexis de Tocqueville wrote in Democracy in America in 1835.
The authors of those first constitutions had greater confidence in legislatures than they did in the executive branch, says Peverill Squire, a University of Missouri political science professor and expert on legislatures. “They kept governors and the courts under the legislature’s thumb. And that was something that the Constitutional Convention that met in Philadelphia in 1787 resisted a little bit. Particularly [James] Madison did not like the fact that state legislatures were so powerful and so dominant.”
Reining in Early Power
“I think they were just entrusted with so much power that it was inevitable that there would probably be a backlash," he says. "In subsequent constitutions and in amendments to existing constitutions, legislatures have some of their powers whittled away, and governors in particular were given more power than they had originally been granted.":
In the post-Civil War period, legislatures lost even more power. The rise of muckraking journalism in the early 1900s exposed corporate and government corruption, and governors gained more sway. As authority shifted to the executive, legislatures increasingly found themselves dependent on that branch for money and other resources. Legislative power shrank further as lobbyists gained influence in state governments in the first half of the 20th century.
“Power began to transfer to the national government because there were lots of national issues that had to be resolved in terms of the economy, managing railroads and all those sorts of things,” Squire says. “Legislatures in the 19th century were not well-respected institutions. They were under a lot of pressure to improve their performance.”
The 1962 U.S. Supreme Court case Baker v. Carr, along with other decisions that followed, established the principle of one person, one vote. The practical effect was that electoral districts needed to be allocated based on population, and that each district needed to contain about the same number of people. The results were significant for all elected offices, but particularly for state legislatures.
Karl Kurtz, a former senior leader at NCSL who was there at the organization’s founding, says before Baker v. Carr legislatures were “notoriously malapportioned. It was very much to the advantage of rural folks, rural districts, and they for the most part ran legislatures all over the country. What did happen at about the same time, and was probably a direct result of the redistricting, was the legislative strengthening movement.”
Professionalizing Legislatures
Kurtz says that in the late 1960s, California Assembly Speaker Jesse Unruh championed an overhaul of state legislatures. His organization, the Citizen’s Conference on State Legislatures, published a study titled The Sometime Governments, which greatly influenced the legislative strengthening movement, even if experts subsequently agreed it was deeply flawed as a piece of social science research.
“If you look at that book, the model that’s in there, is that everybody should be like California, and California was aspiring to be like Congress,” Kurtz says. “The reaction to the study: bad social science. It was really good politics, though. It was good strategy.”
While many legislatures did not want to be just like California, they did institute reforms. An increasing number of people inside and outside of legislatures began to focus on how to make the institutions once again a coequal branch of government.
One clear effect was how frequently legislatures met, Kurtz says. At the time, about 40 of the legislatures met only biennially. “And within 20 years probably of that whole movement, there was just the reverse: 40 of them had annual sessions,” he says.
Efforts to form a single national organization to represent state legislatures began in the early 1970s. Three organizations that represented different aspects of legislative work came together to form NCSL, a move that was intended to signal to the nation the importance of state legislatures as a coequal branch of government.
“We serve as a place," says Natalie Wood, NCSL's vice president for policy and research, "where our members can get together, share ideas and learn from each other in a bipartisan way — a way that allows for a give and take on both sides or many different aspects of a policy issue.”
Changing Demographics
In the 1970s, the structure and staffing of legislatures started changing. Legislatures started spending more time in session and more time working during the interim. In short, most legislatures dedicated more time to their elected jobs as the decade progressed.
The one-person, one-vote court decisions in the 1960s changed the way districts were drawn and who was elected to legislatures. But other forces were changing legislatures, too, says Bill Pound, who served as NCSL’s executive director from 1987 to his retirement in August 2019. Legislatures were faced with significant policy decisions on education, health care, welfare reform and a host of other issues.
The state-federal relationship had an outsize effect, Pound says. “Representational change brought a new generation of people into the legislature that were from different districts and more representative than they had been,” he says. “But I think also it was driven by the growth of state government, which was fueled by the federal government going back to the New Deal to Roosevelt and the (economic and social) programs. So many of them ended up being managed by state government.”
To understand the policy concerns of legislatures, Pound says, you need to follow the money: “Education, highway transportation, social services—those kinds of things. This is also driven, too, by what’s going on at the federal level.”
Along with meeting annually, more legislatures over the last several decades began doing a greater amount of committee and other work during the interim—the period between legislative sessions. And technology—from the development of the personal computer to the rise of social media and artificial intelligence—has had a profound effect on legislatures over the last 50 years, as did the precipitous decline in the number of journalists covering legislatures.
Today, most of the nation’s domestic policy is being driven at the state level by legislatures and governors, saysDon Kettl, professor emeritus and former dean at the University of Maryland School of Public Policy.
“The reality is that, increasingly, the policy decisions are being made in the states," says Kettl, who has written or edited more than two dozen books on American government and is a Governing columnist. "Where the big fundamental issue is about things that people care about, (those) are happening at the state and the local level."
But, he adds, “What we’ve seen is a shift in rhetoric in the news coverage towards the federal government, while at the same time, the real action is happening in the states. And because we don’t have as many state government reporters as we used to, a lot of it is happening below the radar. But it is nonetheless tremendously important, and it is shaping (state policies) dealing with the homeless to transportation to education.”
The Importance of Strong Staff
The legislative strengthening movement also led to more robust legislative staffing. In some states, the executive branch drafted most of the legislation and had outsize control of fiscal issues. In the 1970s, as legislatures added nonpartisan agencies for bill drafting and specialized fiscal staff, they gained ground as a coequal branch of government, Pound says.
“States developed their legislative councils, which meant they had a number of generalists and still do,” he says. “But they also got far more specialized, having full-time knowledge and somebody who had to report to the legislature, not to the governor.”
Legislative staff grew both in numbers and expertise. Budget staff grew significantly, a development that made legislatures better able to control spending instead of accepting what came from the executive. The period also saw the growth of staff on policymaking committees where the bulk legislative work is done. Brian Weberg, who for more than 30 years served as NCSL’s senior manager focusing on legislative management, says that from the 1970s into the ’90s, staffing increased as legislatures added people to handle information technology, human resources and other institutional needs.
“They are the folks behind the black curtain,” Weberg says. “They are the people who keep the trains running in the legislative institution, are the backbone of how these places work, why they work.”
The unique aspect of NCSL is that it brings together both legislators and legislative staff. The nine professional staff groups associated with NCSL offer legislative staff a place to meet and share ideas with their colleagues. Sabrina Lewellen, the assistant secretary of the Arkansas Senate and current staff chair at NCSL, says it’s impossible to overstate the value of the staff groups.
“It is an irreplaceable necessity to have organizations like NCSL to help ensure that there is professional training, support, guidance and feedback for staff. And this is what state legislatures need, require and deserve for its functionality,” Lewellen says. “The legislature as an institution has really only been made better because of NCSL and the professional staff platforms that it has helped to provide throughout its 50-year existence. It’s just invaluable.”
Ed Smith is the host and producer of NCSL’s “Our American States” podcast; Lisa Ryckman is NCSL’s associate director of communications.
