The Reflecting Pool
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The 2007 business meeting, held earlier this month in Boston, was intense and lively.
By Carl Tubbesing
August 30, 2007
Annual Meeting
NCSL’s annual business meeting is an important element of our Annual Meeting. In fact, it’s the official, by-law sanctioned reason for having an Annual Meeting. It’s where delegates elect the organization’s officers and Executive Committee, consider rules or by-law changes, adopt the budget and debate policy statements that guide NCSL’s lobbying efforts in our nation’s capital. Interest in the business meeting waxes and wanes. Over the years, we’ve had spirited, emotion-filled debates over South African divestment, product liability and health care reform. We’ve had fights between committees over environmental and agricultural issues. We even had a protracted debate, full of parliamentary maneuvering, over whether NCSL should oppose the nomination President Ronald Reagan’s nomination of Judge Robert Bork to the U.S. Supreme Court. There have been fast gavels and excruciatingly slow gavels, over-rulings of the chair, tabling motions, amendments to amendments and, in one instance, a motion to discharge a committee of a resolution. But, we’ve also had meetings where the proceedings were sedate, pro forma and boring.
The 2007 business meeting, held earlier this month in Boston, was intense and lively. It featured a last-minute compromise over climate change, the surprise defeat of a telecommunications policy statement and an emotional debate about what NCSL should do about the Real ID act. Taken together, the three debates offer insights about the current state of state-federal relations and the depth of feeling that state legislators have about how they are treated by the federal government.
Climate Change: Sorting Out Roles
Addressing climate change has become a celebrated example of how states engage in policy innovation when the federal government won’t or can’t. California Governor Arnold Schwarzenegger and Assembly Speaker Fabian Núñez for example, grabbed headlines last year when they engineered passage of comprehensive greenhouse gas legislation.
Many legislators, though, believe that new federal legislation is inevitable and probably necessary. Recognizing that, NCSL’s Agriculture, Environment and Energy Committee, chaired by Texas Representative Warren Chisum, began last year with the daunting objective of crafting a policy statement that would sort out the appropriate roles for the federal and state governments in addressing climate change. Representative Chisum chaired a working group that, after a lot of hard work and give-and-take, crafted a compromise policy statement in the months leading up to Boston. The draft contained a set of 19 fairly specific principles, which addressed such issues as energy efficiency, regional fuel diversity and renewable energy. When the full committee took up the proposed statement, in a room jammed with 210 legislators, legislative staff and lobbyists, debate was rancorous and the vote for final passage was three states short of the 3/4 majority needed to move the statement to the business meeting.
Proponents of the statement, though, weren’t done. In the hours before the annual business meeting, they developed a short, more general statement, which they then successfully offered as an amendment to another air quality resolution. The compromise language doesn’t offer the specific guidance that the original proposal would have provided, but it contains a key sentence that will keep NCSL involved in climate change discussions at the national level: “Federal legislation should not preempt state or local governments from enacting policy options that differ from federal choices or from enacting stricter or stronger measures.” The sentence encapsulates the tensions that exist between the states and the federal government in the environmental policy arena—that is, when the federal government acts, should it totally occupy the field or should it allow states to adopt stricter or stronger approaches? Thanks to the climate change language approved in Boston, NCSL will continue to fight for the floor, not a ceiling alternative.
Telecommunications: Keeping States Relevant
Most NCSL policy statements expire three years after they are adopted. Our comprehensive statement on telecommunications was scheduled to sunset in Boston, so our Communications, Financial Services and Interstate Commerce Committee considered a reworked and updated statement to replace it. It was a lengthy statement that got even longer as the new draft attempted to address changes in telecommunication technology and policy that have occurred since 2004, when it was last approved. Although there were questions about the new statement in committee, it passed by a resounding 33 to 1 vote. Normally, a resolution that passes so easily in committee flies through the business meeting. That didn’t happen this time, though. The measure secured a one-vote majority, but that was far short of the 3/4 majority NCSL resolutions need for passage. The unexpected defeat left the committee’s leadership shaking their collective heads, but nonetheless determined to adjust the proposal and bring it back for consideration at the committee’s next meeting, which will occur in late November in Phoenix, Arizona.
The policy that was defeated in Boston is an illustration of how creative NCSL and state legislatures must be to maintain the states’ position in the federal system. The advances in technology that have us oohing and ahhing over our newest PDA one day and marveling at the clarity of our digital television the next pose fundamental challenges to state policy-makers as they attempt to maintain their roles in regulation and consumer protection and to find a fair and equitable approach to taxation of the communications sector. Their decisions aren’t done in a vacuum. They have billion dollar consequences for the companies being regulated and taxed. Many in the private sector would prefer these decisions be made by the federal government, largely to avoid what they call the “patchwork” of state laws that keep thousands of company lawyers and CPAs employed.
As a matter of federalism principle, NCSL hates preemption. We are also prohibited by our rules from telling state legislatures how to deal with a public policy matter. In the case of telecommunications policy, though, we have bent the latter rule just a tad in order to prevent the former. The telecommunications policy defeated in Boston, like the one it would have replaced, included several instances of encouraging legislatures to consider a particular course of action in order to reduce the pressures for the federal government to step in. Steve Rauschenberger, a former Illinois legislator and former President of NCSL, calls this “collaborative federalism.” By working together, he argues, states can address many of the complaints made by the private sector while maintaining the public policy flexibility and nimbleness they would lose if the federal government took over. Although the policy statement defeated in Boston no doubt will be tweaked before it is considered again, it’s a pretty safe bet that it will preserve this creative, collaborative federalism approach to communications policy.
Real ID: We’re Still Mad as Hell
A year ago in Nashville, the annual business meeting featured an emotional debate over a policy statement on the Real ID act. The focus of the controversy was a sentence that would have placed NCSL in favor of repeal of the act if it wasn’t fixed and funded by the end of 2007. Some legislators argued the language was too strong and would affect NCSL’s credibility as we worked with the Department of Homeland Security on regulations and with Congress on legislative changes and appropriations. Proponents of the language found it to be a forceful statement and liked the leverage the threat would give us. The proponents prevailed and we have been operating in the “fix and fund or else” mode for the past 12 months.
In Boston, our Transportation committee brought a similar resolution to the business meeting, just to reemphasize our commitment to the “fix and fund or else” approach. This time the debate was not whether the language was too strong, but, rather, was it strong enough? Several legislators spoke fervently in favor of abandoning “fix and fund” and of calling immediately for repeal. Noting the numerous legislatures that have passed resolutions and laws opposing Real ID, they were reflecting the true anger that many legislators have about the way the law treats the states. The resolution was adopted over their objections, but mostly because New Hampshire Representative Neal Kurk pointed out that we will move to a repeal posture in just five months anyway, because it is very unlikely that the law will be repaired and funded before the end of the year. Persuading Congress to repeal Real ID will be daunting, but, as Representative Kurk predicted, that’s probably where NCSL will be when the clock runs out on December 31.