Guest Essayists: James C. Clinger and J. Drew Seib

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State legislatures normally have had only very few, basic constitutional procedural requirements regarding the passage of legislation. Most state constitutions stipulate that laws can be enacted only after bicameral passage of identical measures, followed by presentment to the chief executive. There may also be requirements that bills receive “readings” on three or more legislative days before passage. Practically speaking, most legislative procedure is determined by internal rules of each chamber. These rules refer to bill referral to committees, methods of bringing bills to the chamber floor, procedures for disciplining members, etc.

Many of the early state constitutions did not provide a means by which the governor could block legislation through a veto. This reflected an anti-executive power bias that carried over from the opposition to the king in colonial times. Gradually, however, the powers of governors increased, and among the most important powers of the governor was the power to veto. In the 1990s, North Carolina’s governor was the last to gain the veto power. The veto power varies dramatically among the states, particularly regarding which measures are subject to veto and the ease with which the legislatures can override the veto. Many states now permit an item veto for appropriation bills, but not for other legislation. Proposed constitutional amendments approved as joint resolutions by the legislature cannot be vetoed by the governor, but instead in most states today go to the electorate for approval. In several states vetoes can be overridden by margins much smaller than the two-thirds requirement necessary for overriding presidential vetoes. In some states, only a simple majority of those elected to serve in each chamber is needed to override the governor’s veto.[1]

In the early 20th century, many states began to adopt direct democracy mechanisms, such as the initiative, that permitted citizens and interest groups to propose new statutory laws or new constitutional amendments without going through the legislature. This has led to the adoption of new laws that would have not gained legislative approval and new institutional changes that dramatically changed legislative careers.[2]

One of the notable changes associated with the initiative process is the adoption of legislative term limits placed within state constitutions. The limits prevent elected officials, often legislators, from serving beyond a specified number of terms in office. Gubernatorial term limits have been more common for years, but only more recently have term limits on state legislators become common. These limits have generally been opposed by state legislators whose careers would be altered by the constraints. Opponents of term limits have also said that the restrictions reduce the professionalism of their elected office and shift the balance of power from legislators to the governor and legislative staff.[3]

For much of American history, state legislatures could be characterized as “amateur” public institutions. Legislators were not well-paid, had few resources for legislative research, constituency service, or administrative agency oversight. They worked as part-time volunteers who did not expect to remain in office for an extended period of time. During the 1960s and 70s in particular, most but not all state legislatures increased legislative salaries (or legislator per diem payments), adopted longer legislative sessions, increased legislative staffing, and created legislative research bureaus to help with bill drafting and analysis of proposed bills or policy problems. This seems to have led to more member stability and longer legislative tenure. It may have also motivated activists in the term limits movement, who distrusted professional, career politicians. Scholarly research on this topic has found that professionalization of state legislatures has led to more African-Americans and fewer women entering the chambers.[4] It may have also increased the size of the Democratic Party share of the legislature, at least outside the South,[5] though the effects of professionalization appear to vary by party.[6] The imposition of term limits does not have appeared to have ended political careerism, since many term limited state legislators pursue other offices, including congressional seats.[7] Legislative professionalism as well as one party dominance has also been found to particularistic, such as local legislation and special bills, which are apparently aimed at boosting chances for re-election.[8]

Finally, it should be noted that the role of state legislatures has changed because of actions of the federal government. Under the national supremacy clause, discussed above, federal law prevails when it is in conflict with state law. This practice, known as preemption, has been used throughout much of American history.[9] More recently, however, state laws have been invalidated through preemption not only when laws enacted by Congress conflict with laws enacted by state legislatures but also when federal agency interpretations of how or whether to enforce laws may conflict with laws enacted by state legislatures.[10] Intergovernmental grant programs may also lead to a “work around” the state legislatures. For example, the Patient Protection and Affordable Care Act provided that state chief executives, not legislatures, would  approve the creation of state health insurance exchanges.[11]

While very influential in national politics early on in U.S. history, the addition of particularly the 17th Amendment, but also the 16th, 19th and 26th Amendments have weakened the role of state legislatures in national politics. What is more, federal preemption by not only laws enacted but also federal agency interpretation of laws has weakened the role of state legislatures in national politics.

Since their inception, the state legislatures have served as the proverbial “lab of democracy” both across states and for the federal government. The variation in design, rules, and procedures has served as an opportunity to study institutional arrangements and their effects.  Many of the features in the U.S. Congress were taken from practices in state legislature and states often adopt successful reforms from other states.[12]  Their variation in designs is an opportunity to learn and strengthen political institutions in the United States.

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] https://ballotpedia.org/Veto_overrides_in_state_legislatures

[2] See Gerber, Elisabeth R., Lupia, Arthur, McCubbins, Mathew D., and Kiewiet, D. Roderick. Stealing the Initiative: How State Government Responds to Direct Democracy. Upper Saddle River, NJ: Prentice Hall. 2001.

[3] Carey, John M., Richard G. Niemi, and Lynda W. Powell.  1998. “The Effects of Term Limits on State Legislatures.”  Legislative Studies Quarterly, 23(2): 271-300.

[4] Squire, Peverill.  “Legislative Professionalization and Membership Diversity in State Legislatures.” Legislative Studies Quarterly.  Vol. 17, No. 1. (1992): 69-79 .

[5] Meinke, Scott R., and Edward B. Hasecke. “Term Limits, Professionalization, and Partisan Control in U.S. State Legislatures.” The Journal of Politics 65, no. 3 (2003): 898-908.

[6] Sanbonmatsu, Kira.  2002. “Political Parties and the Recruitment of Women to State Legislatures.”  The Journal of Politics, 64(3):791-809.

[7] Carey, John M., Niemi, Richard G., and Powell, Lynda.  Term Limits in the State Legislatures.  Ann Arbor: University of Michigan Press. (2000).

[8] Gamm, Gerald, and Kousser, Thad. “Broad Bills or Particularistic Policy? Historical Patterns in American State Legislatures.” The American Political Science Review 104, no. 1 (2010): 151-70.

[9] For an early example, see Gibbons v. Ogden).  22 U.S. 1. (1824).

[10] See, for example, Arizona v. United States, 567 U.S. 387 (2012)

[11] Fahey, Bridget A.. “Consent Procedures and American Federalism.” Harvard Law Review Vol. 128,(2014): 1564-1629.

[12] see Berry, Frances Stokes, and William D. Berry. 1990. “State Lottery Adoptions as Policy Innovations: An Event History Analysis.” American Political Science Review 84(2): 395–415.

 

Guest Essayists: James C. Clinger and J. Drew Seib

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The legislatures in American state governments developed alongside and even prior to the more famous and well-studied Congress of the federal government. Their origins can be found in the colonial assemblies that existed before the American Revolution. Those institutions developed structures, procedures, and qualifications for office-holding that influenced the development of the national legislature. This essay will briefly describe the development of the state legislatures and their relationship to the federal government.

Legislatures in the American colonies developed very quickly, largely at the request of local interests, not at the behest of the British government. These assemblies varied greatly from one another, although most, but not all, were bicameral, with different qualifications for office-holding and for voting for different chambers.[1] These assemblies were not modeled after the British parliament, which in its modern form did not exist. In fact, the first legislatures in the American colonies were created long before the Glorious Revolution of 1688, which established the principle of parliamentary supremacy over the monarch.

During the American Revolution, royal governors often dismissed or at least attempted to suspend the colonial assemblies. Most of the newly declared states established legislatures that have come to be known as provincial congresses, which lasted until the end of hostilities. At that time, formally recognized state legislatures were created, and were allowed great authority under the Articles of Confederation. Once the new federal constitution was drafted, the state legislatures exercised new roles within the newly created union as well as within their respective states. Under the new constitution, the electorate choosing the members of the United States House of Representatives were to have the same qualifications “requisite for the Electors of the most numerous Branch of the State Legislature.”[2] At that time, states frequently had more stringent voter qualifications to vote for the upper chamber of the legislature (i.e., the senate) than they had for the more numerous, lower chamber (e.g., the house of representatives, although many states use a variety of names for their lower chambers). By setting higher voter qualifications (usually regarding age, sex, property ownership, “freemen” status) for their own legislatures, the state could affect the electorate choosing its delegation to the United States House of Representatives.

Originally, the state legislatures directly selected the United States senators from each state, although that practice was ended by the ratification of the 17th Amendment, which established direct election of U.S. senators.[3] In the early years of the constitutional republic, the state legislatures regularly sent instructions to their senate delegations, describing how they should vote on issues in Congress. Earlier, under the Articles of Confederation, the state legislatures not only chose their state’s delegates to congress but also had the authority to recall them from office if the legislatures were displeased with their performance.[4]

The federal constitution also assigned a role for the state legislatures in determining the “Times, Places, and Manner” of federal house members and senators, subject to the proviso that “the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”[5] Years later, the discretion of state legislatures was constrained further by the ratification of the 15th, 19th, and 26th amendments (creating a right to vote for people of all races, for women, and for eighteen year olds), and by the passage of the Voting Rights Act and other pieces of legislation.

The Constitution also provided a role for state legislatures in amending the federal charter, by either proposing a convention for proposing amendments (by a vote of two-thirds of the states) and by ratifying constitutional amendment proposals (by a vote of three-fourths of the states).[6] All successful constitutional amendment proposals have been proposed, not by a convention called by the state legislatures, but by two-thirds votes of each chamber in Congress. All but one successful amendment—the exception being the 21st, which repealed prohibition–were ratified by the state legislatures. The repeal of prohibition was ratified by special conventions in the states.

The Constitution also stipulated that certain powers were forbidden for the states. Although state legislatures were not explicitly mentioned, legislatures would have been the body enacting such prohibited laws (e.g., regarding titles of nobility, currency, interstate taxation).[7]  The constitution also stipulates that federal laws, including the constitution, laws, and treaties, constitute the “supreme Law of the Land,” and state officers, including members of the state legislatures, must be bound by oath or affirmation to uphold the constitution.[8] The national supremacy clause was included in the constitution only after the defeat of a proposal by James Madison to authorize Congress to negate any state law that it opposed.[9]

The early state legislatures varied in structure but had some common structural elements.   Most, but not all (i.e., Georgia and Pennsylvania had only one legislative chamber and today Nebraska is the only unicameral legislature in the U.S.), were bicameral. A small number chose their senators through an electoral college, as was sometimes done for governors and as is still done for the federal president. That practice was not common and was ended completely well before the civil war. Most state legislatures developed standing committees early in their histories, often well before the federal Congress had established that practice. State legislators generally controlled the internal rules of their chambers and selected their own leadership. Once political parties were well-established, the organization of each chamber (leadership selection, committee assignment, and committee chair selection) became largely a matter for the party organizations to decide. Today, even Nebraska’s non-partisan legislature organizes along partisan lines.[10] Most legislatures met in annual sessions and most legislators served terms of office of one year, although some members of the upper chamber served two or three years.   Later in the nineteenth century, biennial sessions became standard practice, but in the late 20th century annual sessions became the norm again.[11] The size of each chamber differed widely among the states. Originally, South Carolina’s lower chamber had 199 members, while its upper chamber had only 13. Delaware, on the other hand, had only 21 in its lower chamber and nine in its upper.[12] Most legislators represented single member districts. The number of legislators was and still is significant because as the size of the legislative chamber increases, the average size of each district or constituency diminishes. Usually the demographic diversity of the constituency diminishes as the size of the district goes down. This changes the task of representation of constituency interests dramatically.[13] The number of seats in the lower chamber compared to the number in the upper chamber affects the difficulty that an ambitious, career-minded legislator may have to move from the lower to upper chamber.[14]

James C. Clinger is a professor in the Department of  Political Science and Sociology at Murray State University.  He is the co-author of Institutional Constraint and Policy Choice: An Exploration of Local Governance and co-editor of Kentucky Government, Politics, and Policy. Dr. Clinger is the chair of the Murray-Calloway County Transit Authority Board, a past president of the Kentucky Political Science Association, and a former firefighter for the Falmouth Volunteer Fire Department.

Dr. J. Drew Seib joined the faculty at Murray State University in the Fall of 2012. He teaches courses in American politics and research methods. In addition to his teaching duties, Dr. Seib is the advisor for the Murray State Chapter of Pi Sigma Alpha, the National Political Science Honor Society, and Racers for Bernie. His research focuses on how voters make decisions. He is especially interested in how voters acquire information during campaigns under a variety of contexts and conditions. Dr. Seib also privately consults on web-based surveys. Dr. Seib received his Ph.D. and M.A. from Southern Illinois University with an emphasis in American political behavior. His dissertation, Frantic Voters: How Context Affects Information Searches, was awarded a prestigious National Science Foundation Dissertation Improvement Grant. Dr. Seib received his B.A. from Westminster College in Fulton, MO, triple majoring in political science, Spanish, and international studies, and minoring in European studies.

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[1] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012.

[2] United States Constitution, Article 1, Section 2, Clause 1.

[3] United States Constitution, Article 1, Section 3, Clause 1, and United States Constitution, 17th Amendment, Section 1.

[4] United States Articles of Confederation, Article 5.

[5] United States Constitution, Article 1, Section 4, Clause 1.

[6] United States Constitution, Article 5.

[7] United States Constitution, Article 1, Section 10.

[8] United States Constitution, Article 6, Sections 2-3.

[9] Hobson, Charles F. “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government.” The William and Mary Quarterly 36, no. 2 (1979): 215-35.

[10] Wright, Gerald C. and Brian F. Shaffner. 2002. “The Influence of Party: Evidence from the State Legislatures.”  American Political Science Review 96(2): 367-379.

[11] Squire, Peverill. “American State Legislatures in Historical Perspective.” PS: Political Science & Politics 52, no. 3 (2019): 417–21.

[12] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press, 2012, 84.

[13] Denzau, Arthur T., and Michael C. Munger. “Legislators and Interest Groups: How Unorganized Interests Get Represented.” The American Political Science Review 80, no. 1 (1986): 89-106.

[14] Squire, Peverill. “Member Career Opportunities and the Internal Organization of Legislatures.” Journal of Politics, Vol. 50, No. 3 (1988): 716-44.