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State Labs

Congress can learn a lot from state legislatures.
by | September 2019

State legislators who move on to Congress find one of their jobs unexpectedly and sometimes maddeningly difficult: the simple act of reading a bill.  

Scoff if you like, but the task is not as easy as it sounds, particularly for legislation that amends existing law. In nearly all state legislatures, bills show the current law right alongside the changes that the proposal seeks to make. New language might, for example, be underlined, and deleted language struck through. 

Congressional bills, though, don’t show the existing law; they just describe the changes. So, in the 2017 Republican tax cut law, a provision states, “Paragraph (3) of section 162(m) is amended in subparagraph (B) by striking ‘4’ and inserting ‘3.’” Without a copy of the United States Code handy, there’s no way to tell that the provision changes the number of  top earners in a publicly traded company who will have their salary disclosed to shareholders. Provisions like that are littered throughout the 2,053-page law—and almost every piece of legislation Congress passes.

U.S. Rep. Tom Graves, a Republican who served in the Georgia House of Representatives, doesn’t understand why bills in Congress are so hard to read, when virtually every state makes it easier. “Here in Congress,” he says, “there seems to be a cloak or a veil over any kind of changes to the legislative text.”

The situation has been so frustrating that a special U.S. House committee on which Graves serves has made changing it a top recommendation for how to modernize Congress. The committee has turned repeatedly to experts in state legislatures, among others, to deal with not just the unreadability of legislation but some of Congress’ other long-standing and frustrating procedural flaws. 

If you take a step back, it quickly becomes apparent that many of Congress’ persistent problems don’t exist at the state level. Admittedly, Congress deals with a wider range of issues and does so under much more intense scrutiny than state legislatures do. Still, that doesn’t explain why, for example, members of Congress often don’t attend subcommittee meetings. Or why it takes 15 minutes or more for the 435-member U.S. House to vote on a bill, when it takes the 400-member New Hampshire House 30 seconds. It doesn’t entirely explain why budget crises at the federal level seem to pop up at random, at all times of the year, or why even the regular budget and appropriations process is so much more opaque at the federal level than in most states.

There’s a lot, in other words, that Congress could learn from state legislatures if its members wanted to. And you’d think they would want to. As many as 45 percent of all current members of Congress once served in state legislatures. Even if state legislative practices aren’t perfect solutions for Congress, they can help illuminate why so many of Congress’ current procedures leave federal lawmakers, interest groups and the public so frequently frustrated.

One of the most striking differences between Congress and state legislatures, says Bill Pound, who served as executive director of the National Conference of State Legislatures (NCSL) for more than 30 years, is how they use time. The differences are apparent in everything from their yearly calendars to the way committee meetings are conducted.

There’s a certain rhythm to a state legislative session. Most legislatures meet every year, with the exception of Montana, Nevada, North Dakota and Texas, which typically meet every other year. Initially, members focus on drafting and introducing bills. Then a series of deadlines quickly winnows out bills that aren’t viable. When members are working to shepherd their ideas through committee, most of the legislature’s attention is on hearings in those committees. Then the chamber’s attention turns to floor debates to consider the bills that made it through the committee process. Midway through the session, the process repeats itself, as bills that passed one chamber move across the Capitol to the other chamber. Lawmakers again focus on committee work, and then shift to the floor. The sessions may end in seeming chaos, as bargaining over the finer details of big-ticket items, often including the budget, stretches to the eleventh hour. But finally, somewhat miraculously, the gavel drops and the legislature adjourns, usually on the exact day specified by law.

The congressional process is a lot more haphazard. Once a given Congress convenes, it meets pretty much all year round for two years. On paper, a 1974 law sets a framework for Congress’ annual schedule by imposing deadlines for the yearly budget and appropriations process, beginning with the president submitting a budget proposal in February and ending when the federal fiscal year starts in October. The process calls for Congress to establish an overarching budget blueprint, and then to pass 12 separate appropriations bills that fill out the spending details under that budget. In practice, that process has been all but discarded in recent years. Congress has turned either to omnibus legislation—incorporating many, if not all, of the appropriations bills in one unwieldy package—or to continuing resolutions that simply extend existing spending authority with minor changes. The only real deadlines that drive the legislative process in Congress are usually self-imposed, as appropriations or major laws reach their expiration date and have to be extended to keep the government functioning. 

Congressional leaders have increasingly derailed the process for non-budgetary legislation as well. Instead of being hashed out in committee, bills are increasingly negotiated behind closed doors and unveiled shortly before a vote. Members not only have no way to understand the details of the legislation they read; often they have no time to read it at all.

Committee hearings and floor votes take place simultaneously, all session long. Committees meet even when there’s action on the House or Senate floor, which means that members suddenly depart their hearings in the middle of witness testimony to cast floor votes. Because committees usually meet in the House and Senate office buildings ringing Capitol Hill, members must hustle through a warren of subterranean tunnels (or take the basement subway) to get to the Capitol before floor votes close. The fact that so many members are busy with committee work during floor sessions also means that few members are actually in the House or Senate chambers when bills are up for debate. 

U.S. Rep. Don Beyer, a Democrat who presided over the Virginia Senate when he served as lieutenant governor, complained recently about the House’s chaotic schedule. In Virginia, he noted, work every morning would start on the chamber floor, before members broke off to handle committee work and other tasks. “Instead of running back and forth and back and forth and back and forth,” he says, “we would come, we would focus, we would work, we would do our job, then we [would] get back to the many, many other priorities that go into being a successful legislator.” 

“There has to be a much more sensible way [than how Congress does it],” Beyer says, “and I suspect most of our state legislatures have figured this out.” The 400-member New Hampshire House of Representatives offers one example. It is the only state legislative body that comes close to the size of the U.S. House in sheer number of members. But it operates under a completely different ethos. The New Hampshire House’s internal rules require the chamber to hold hearings on every piece of legislation introduced there and, furthermore, the full chamber must vote on every bill. And yet the legislature still usually adjourns by early July every year. 

Paul Smith, the clerk of the New Hampshire House, says the way the chamber operates—its rule that no bill can be killed in committee, for example—distinguishes the New Hampshire House as much as its size. “We have a very open government here in the state,” he says. “The transparency we’ve adopted stems from the public’s right to know. That’s something we take seriously.”

 

It’s not just frazzled federal lawmakers who suffer because of Congress’ poor time management; it’s the public, too. The hectic and unpredictable schedules on Capitol Hill are a major reason why lawmakers put committee hearings low on their list of priorities. But committee hearings are the one formal venue that ordinary citizens have in which to address their representatives. 

The comedian Jon Stewart excoriated members of Congress in June for not taking their committee duties more seriously, noting the seemingly sparse attendance at a House subcommittee hearing to consider funding to provide medical care for first responders after the September 2001 terrorist attacks. “As I sit here today, I can’t help but think what an incredible metaphor this room is for the entire process that getting health care and benefits for 9/11 first responders has come to,” Stewart told the subcommittee. “Behind me, a filled room of 9/11 first responders; and in front of me, a nearly empty Congress.”

Congressional hearings are designed to allow every lawmaker on the panel to speak, more than to gather expertise or information from the witnesses who appear before them. First, the top-ranking members of each party provide an opening statement. Then the witnesses are allowed to speak for up to five minutes apiece. After they conclude, each member of the panel gets five minutes to either question the witnesses or offer his or her own thoughts on the subject. They normally leave after their turn is over. Cameras from C-SPAN capture lawmakers’ remarks, even on the most mundane of subjects.

The congressional hearings amount to “political theater,” says Pound, the longtime NCSL director. Showmanship will always be part of politics, he acknowledges, but committee hearings at the state level tend to be more focused on getting public feedback about specific proposals. “At most state legislative hearings, hell, anybody can testify,” Pound notes. “Citizens, real citizens, can testify. Anyone can sign up at the beginning, and sometimes hearings drone on for hours. They may be limited to five minutes or something, but [lawmakers] still listen to them.”

Statehouse regulars sometimes opt to file witness slips instead of offering oral testimony. The slips let lawmakers know whether interest groups are supporting, opposing or staying neutral on legislation. They are usually entered into the official committee records, so the public knows where key constituencies stand. What’s more, whether they testify or quietly register their stance, lobbyists and subject-matter experts can publicly discuss the ins-and-outs of the legislation that lawmakers are considering. The meetings seem to be more about information gathering than about value signaling.

“In a state legislature, there are ways in which you can see the process more directly if you take the initiative, although most people don’t,” says Kelly Dittmar, a political science professor at Rutgers University. But with an ever-present media, vigilant lobbyists and heightened political polarization, members of Congress are wary of having frank discussions in public. “In both Congress and state legislatures, a lot happens behind the scenes,” Dittmar says, “but even more of the policy process happens behind the scenes in Congress.”

 


Jon Stewart excoriated members of Congress in June for not attending subcommittee meetings.

 

Congress passes far fewer bills, both as a percentage of those introduced and as a raw number, than state legislatures. That has big implications for how both institutions work.

During the last Congress, members introduced nearly 11,200 bills over two years. Only 416 of them became law. (Of the new federal laws, 83 renamed post offices.) But even including those, less than 4 percent of bills introduced became law. State legislatures, on the other hand, pass about a quarter of the bills that are offered. The percentage varies widely by state, from 5 percent in Minnesota to 86 percent in Maine, according to an analysis of 2013-2014 data from CQ State Track. But no state legislature had a lower percentage of enactments than Congress. “A lot of bill introductions in state legislatures are for the purpose of policymaking and getting things done,” says Andrea Hatcher, the chair of the political science department at Sewanee: The University of the South. “A lot of bill introductions in the U.S. House are less a matter of actual policymaking and more for signaling purposes.”

With little chance that their bills will actually become law, members of Congress draft legislation to communicate with constituents, special interests and lobbyists. Members can discuss their ideas with residents of their district. They can work up short floor speeches about their pet projects. They can promote their bills and speeches on their websites, social media and even fundraising pitches. “Many times,” Hatcher says, “that’s enough of a signal to constituents or to special interests that they’re doing their job.”

But given Congress’ low output, it’s easy to see why outsiders sometimes talk derisively about a “do-nothing Congress.” The fact that the last Congress ended amid a partial shutdown of the federal government doesn’t help. The numbers can be a bit misleading, though, because some of the bills that Congress passes are huge. Any bill, especially an appropriations bill, that is seen as “must-pass” legislation trends to attract enormous attention, and lawmakers clamor to include their long-sought changes. Everybody knows there are only a few sure trips to the president’s desk, so they all try to climb on board if they can. The added provisions are called “riders.”

Legislative leaders can use riders to attract more votes, especially if the must-pass bill is controversial. Other times, lawmakers use their clout to get their favored causes on an easy path to the law books. The House has fairly strict germaneness requirements; the Senate doesn’t. But they do not prevent riders from establishing laws ranging from restrictions on abortion to controversial new security requirements for state driver’s licenses.

Two common features of state government limit the proliferation of riders in legislatures (at least, compared with Congress). One is that most governors have line-item veto powers, which allows them to strike out individual parts of bills that reach their desks. But the more important one is that nearly all states have language in their constitutions that limits the scope of bills to a single subject.

Changing that situation at the federal level would require amendments to the U.S. Constitution. Congress tried to give the president line-item veto power in the 1990s, but the U.S. Supreme Court ruled that it was unconstitutional because it gave the president powers reserved for the legislative branch. A single-subject rule would likely also need to be added to the U.S. Constitution; if it were put into place by a simple resolution or even a statute, it could easily be amended or repealed.

Even with the single-subject rule enshrined in so many state constitutions, the effect of those provisions does vary widely by state. State courts must decide how much they are willing to meddle with the inner workings of the legislative branch. “The implementation of the states’ various single-subject rules has had mixed success, at best,” wrote lawyers Stanley Kaminski and Elinor Hart. “Even though the rule seems plain on its face, state courts around the country have interpreted the single-subject rule in most interesting and creative ways.”

Still, the states are sticklers for germaneness compared to Congress, where members don’t have much of a choice when it comes to playing along with the rules that allow riders if they want to get their own legislative priorities passed. 

Inevitably, any discussion of the inefficiency of Congress turns to the dominant role that money plays in politics. From the moment they get elected, members of Congress have to worry about raising money for the next campaign. That’s especially true in the House, where they are never more than two years away from reelection. The pressure is intense enough to detract from their other duties. 

Studies that look at how members of Congress spend their days make that clear. Candidates can get only $2,800 from an individual donor for any one election, so funding a campaign takes a lot of donors. The federal lawmakers spend long hours most weeks making phone calls, meeting potential contributors and attending fundraising events. None of that can happen in government offices on Capitol Hill, so members duck out to nearby private offices or residences to make their pitch. They try to stay close enough to the Capitol that they can get back in 15 minutes for a floor vote. But they are less likely to rush back for committee meetings. “If you know you have to raise $100,000 a quarter for your campaign, are you going to meet with a bundler who could potentially raise $50,000 for you, or are you going to attend a subcommittee on a policy, when that hearing is one of 42 on that subject?” asks Jennifer Nicoll Victor, a political science professor at George Mason University. “It’s more beneficial to you, if you’re trying to keep your job, to meet with that bundler. So you can see why there are not that many people at subcommittee hearings.”

Campaign fundraising is a big deal in the states, too, but it doesn’t take lawmakers away from their core duties in the same way as it does in Congress. Half of the states ban or severely restrict the campaign contributions lawmakers can receive on legislative session days. 

 


U.S. Rep. Tom Graves, a Republican, and Democratic Rep. Derek Kilmer, right, lead the Select Committee on the Modernization of Congress.

 

Fifty years ago, state legislatures went through their own wave of modernizations. They saw how Congress had begun professionalizing its work. States started adopting some of those same ideas: independent auditing agencies, legislative budget offices, lawyers who turned politicians’ ideas into legislative language. Legislatures began to meet more regularly, and for longer periods of time. NCSL was formed to help lawmakers and their staffs learn best practices and exchange policy ideas. This drive toward professionalism and transparency among legislatures still continues, even as the partisan divisions that were once emblematic of national politics have grown in state capitols, too.

Congress, meanwhile, has fallen behind. When Republicans took control in 1995, they started cutting staff, particularly at the nonpartisan support units that states had tried to replicate. They eliminated an entire agency that specifically explored science and technology issues, and trimmed other agencies. Those cuts have continued, even as party control has switched hands. The Congressional Research Service, the Government Accountability Office and the Congressional Budget Office lost 45 percent of their combined staffs from 1975 to 2015, according to the Brookings Institution. This is especially problematic when it comes to technology. Members complain that they can’t even get Wi-Fi access in the Capitol complex.  

At one recent hearing on congressional modernization, members heard how the Washington state Capitol in Olympia not only has Wi-Fi everywhere, but how the entire campus is already 5G-ready. Witnesses can testify remotely from other parts of the state during committee hearings. The members of the modernization panel also heard about how the California Assembly has moved almost all of its day-to-day paperwork onto tablets. With just a few taps, legislators in California can not only compare an amendment’s text to current law, but also compare different versions of proposed legislation, allowing them to see, for example, how an amendment might change the underlying bill. One enthusiastic congressman asked state tech experts if there might be some kind of software that would let committee chairs see whether their members had conflicts before scheduling a hearing. What he was asking for, basically, was a Microsoft Outlook calendar, something that can be found in corporate offices all across America.

There are signs of improvement. The House clerk is working on software to let lawmakers compare legislation to existing law. The Select Committee on the Modernization of Congress has already started to churn out recommendations. U.S. Rep. Derek Kilmer, the Washington state Democrat who chairs the committee, hopes the process will continue, even though past efforts have been short-lived. “It is not crazy to think that this sort of analysis could happen more regularly,” he says.

But any significant changes to congressional operations will ultimately depend on whether chamber leaders feel it’s in their best interest to shake things up. There’s no guarantee that will happen, at least not anytime soon. “The overwhelming presence of ideological polarization and strong partisanship in Congress has changed the use of legislative procedure,” says Hatcher, the Sewanee professor. “It doesn’t really incentivize a different way of doing things. It doesn’t really incentivize innovation or effective governance. It’s about winning the battle in the short term. They’ll focus on winning the war later.”

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