utah senate special session august 2020 covid

Utah legislators and staff met both virtually and in person during a special session in August 2020. (Courtesy Utah Senate)

Through a COVID Lens: Top Legislative Issues of 2021

By Mary Winter and Julie Lays | Jan. 11, 2021 | State Legislatures Magazine

State legislators constantly address challenging issues. For the last 10 months, though, they’ve found themselves in a war with a crisis that affects nearly every policy issue and has jolted the economy.

As the new year began, COVID-19 had claimed the lives of more than 350,000 Americans and infected millions more. Tens of thousands of businesses had closed or were struggling. Millions of students were adjusting to learning remotely, and the doctors, nurses and other health care workers on the front lines were exhausted. Bringing the still-raging virus to heel will consume lawmakers’ attention, as all states and territories convene sessions this year. 

“COVID will change everything,” says Connecticut House Speaker Matt Ritter (D). “I can’t imagine we won’t look at most bills through the COVID lens.”

COVID will change everything. I can’t imagine we won’t look at most bills through the COVID lens. —Connecticut House Speaker Matt Ritter

Before lawmakers could begin the difficult deliberations that awaited them this year, they had to figure out how to conduct business safely. Most states and territories held special sessions, interim hearings or meetings in the summer and fall to collect information and weigh options. Many are using lessons learned in 2020.

“This COVID situation may limit us in what we can or cannot do,” Kentucky Senate President Robert Stivers (R) says. “So, (this year) the process may be a bigger story than the policy that we deal with.”

The biggest issues of any year are often the same every year. But 2020 was not just any year, and COVID-19 is not just any virus. Here is a look at what to expect in 2021 sessions.

Fighting the Virus

State lawmakers are not only grappling with the effects of the virus but also battling the disease itself—providing public health and health care workers what they need to prevent its spread and stay safe.

Each state has developed a plan that ensures adequate testing supplies, timely test results and ample testing opportunities for underserved populations. States have expanded laboratories, partnered with academic, federal and private organizations, and scaled up drive-through testing sites, among other strategies.

And now states are focusing on distributing, allocating, storing and administering the vaccines as they become available. Several states are modifying their scope-of-practice laws for certain health care providers, including pharmacists, pharmacy technicians and dentists, to increase the number of professionals available to administer vaccines.

More than 40 states temporarily modified licensing requirements to recruit more health care workers. Vermont, for example, relaxed requirements for retired and out-of-state health professionals, and Kentucky passed a bill allowing medical students to conduct triage and diagnose and treat patients if under fully accredited supervision.

Several legislatures passed bills that establish, coordinate or fund contact tracing. In Rhode Island, businesses must cooperate on testing, contact tracing and disease investigation before they are allowed to reopen from lockdown.

In Kansas, concerns over potential privacy violations persuaded lawmakers to put a hold on the use of tracking technology until April, to give the legislature time for a more thorough review of how it should be regulated.

A Kaiser Family Foundation survey last July showed 53% of adults (up from 32% in March) reported that COVID-19-related stress had negatively affected their mental health, leading to increases in substance abuse, domestic violence and thoughts of suicide. The combination of social isolation and loneliness, economic stress, lack of mental health treatment and widespread national anxiety has created what the journal JAMA Psychiatry refers to as “a perfect storm” for suicide.

To tackle this growing mental health problem, the Minnesota Legislature targeted rural areas with suicide prevention training and increased mental health awareness training for young people. The Alabama Legislature gave county and regional mental health centers a $2.5 million boost. Colorado used federal CARES Act money to continue operating its crisis hotline, and Utah built on previous legislative successes by expanding services available through its hotline.

Plugging Budget Gaps

A top priority of every legislative session is passing a balanced budget. That will be especially challenging in some states where the economy continues to sputter and revenues continue to stagnate.

Revenue projections have varied greatly since the start of the pandemic. Many states projected dire losses early on, but midway through the fiscal year, some have seen state tax revenues higher than original projections. A handful of states, including Idaho and South Dakota, have experienced revenues greater than even pre-pandemic estimates. However, most states still anticipate challenging budget discussions ahead.

Kentucky lawmakers are looking at a possible 10% reduction in state revenues. “If we aren’t generating sales tax revenue—people aren’t buying, people aren’t working, businesses aren’t doing anything,” Kentucky Senate President Robert Stivers (R) says.

In 2020, states used federal stimulus money and dipped into healthy rainy day funds and abundant tax collections from the previous year to fill COVID-caused gaps in funding for education, Medicaid, corrections, behavioral health, housing and social services. They also scrambled to freeze spending to balance budgets, as all but one are required to do by law.

To balance FY 2022 budgets, lawmakers will likely face more difficult choices: across-the-board cuts, elimination of programs, hiring and salary freezes for state workers and teachers, tax or fee increases, or a combination of all of these or other creative stopgap budget measures.

Boosting the Economy

How best to support businesses and workers and create new jobs? These questions are on every lawmaker’s mind. With the resurgence of the virus, lawmakers are likely to continue asking themselves whether temporary shutdowns of businesses and schools are prudent precautions or overreaching remedies.

“My constituents want the economy opened up,” NCSL Vice President and Idaho House Speaker Scott Bedke (R) says. “I think they’re still smarting over the first disaster declaration that based business closures on whether your business was designated ‘essential’ versus ‘nonessential.’”

Many legislatures will look at COVID-19 liability protections for an array of businesses, schools, organizations and workers to shield them from lawsuits blaming them for spreading the disease. Legislation in 2020 extended protections to adult day care centers in Virginia, the entertainment industry in New Jersey and architects in Idaho, among others.

Supporting small businesses will also be a priority, and there are many ways lawmakers may choose to go. Last year, California approved income tax credits for small-business owners who hired workers during the pandemic, and the state isn’t requiring residents to report pandemic-related federal aid on their state income tax forms. Colorado lawmakers used federal stimulus funds to create grants for small businesses. Massachusetts lawmakers made financial assistance available to small businesses and gave restaurants, lodging facilities and meeting venues extra time to pay certain taxes. Minnesota and Vermont targeted aid to rural areas and the agricultural community.

Lawmakers in states that passed minimum wage increases before COVID-19 will have to address small-business owners’ concerns about making the higher payments.

States also will likely be adjusting their job-training and apprenticeship programs as well as their occupational licensing rules as some industries face high unemployment rates while others can’t find enough qualified workers.

As witnessed at the end of last year, the debate will continue over how much is needed from the federal government, and for how long, to boost the economy and get people back to work—safely.

North Dakota Senate Majority Leader Rich Wardner (R) doesn’t think giving everyone federal unemployment checks is the answer. “People are reluctant to go to work when they can get $600 in federal unemployment benefits for not working,” he said last summer.

Bedke agrees. “The bonuses that the unemployed got were an incentive to stay home,” he says, “and that rubs a lot of Idahoans the wrong way.”

Ritter, on the other hand, welcomes the assistance. It is “the whole point of having a federal government,” he says. “There isn’t any question about (receiving) federal money when there’s a storm. … Now (the federal government) says, ‘You’re on your own … go figure it out.’”

Reinventing Education

The pandemic’s toll on students—from preschoolers to those in grad school—is hard to overstate. “This has to be the biggest blow to the public education system in decades. Many students are really struggling,” Michelle Exstrom, director of NCSL’s Education Program, says. “This is sure to have a long-term ripple effect.”

Shrinking education budgets could further hinder students’ academic progress as programs and resources are cut. Lawmakers will seek ways to make up lost time in the classroom and help school districts with increasing and unexpected COVID-19-related expenses. Lawmakers also will consider using several federal funding streams to ensure that schools, teachers and students have the computers and other supplies they need as hybrid learning models continue.

A majority of America’s schools went to full-time online instruction last fall, but as many as 16 million students, or 30%, lacked adequate internet access and the devices needed for remote learning, exacerbating the digital divide.

Some legislatures dedicated a part of their federal stimulus money to providing students with computers and internet connectivity. Alabama, Mississippi and Tennessee, for example, provided millions for student technology.

Any shortcomings of virtual learning may not be known for years. Idaho’s Bedke, a grandfather of 12, has seen firsthand how hard it is for some young students to adapt to remote learning. “Closed schools are a big issue,” he says. “We were making good progress on reading by grade level the last few years, and now this.”

Higher education was hit hard by the virus as well. No aspect of the college experience—from admission to graduation—remains unchanged, and the disruptions are far from over.

Anticipating widespread budget gaps, lawmakers will have to decide how best to manage potential shifts across the postsecondary landscape, including mergers, realignments and possible closures. Pressure to lower tuition, stagnant state funding and a shrinking pool of high school graduates were straining many institutions’ bottom lines even before the coronavirus hit. According to the news site Higher Ed Dive, more than 85 colleges and universities have closed since 2016.

Conducting Redistricting

“If COVID-19 were not an issue, redistricting would be the dominant issue of most 2021 sessions,” says Ben Williams, a policy specialist in NCSL’s Elections and Redistricting Program. The once-a-decade census population count and redistricting process, a major undertaking in normal years, will be more difficult this year, thanks to the pandemic and its couldn’t-be-worse timing. Some fear the hyper-partisanship and unprecedented number of legal challenges accompanying recent map-drawing efforts could elevate the temperature even more.

In 35 states, some of them aided by advisory panels, legislatures are responsible for redistricting their own legislative lines. In the other 15 states, commissions draw legislative maps. Legislatures also draw new U.S. House districts in the vast majority of states. Hard deadlines are enshrined in many state constitutions, which could make this year’s shortened timelines difficult. At the request of the California Legislature, a state court moved back the deadline by four months, to Dec. 15, 2021.

New Jersey and Virginia, two of the four states that hold legislative elections in odd years, made adjustments last year. New Jersey voters agreed in November to delay legislative redistricting and the use of new districts if census data is received after Feb. 15. In Virginia, nearly 66% of the voters agreed to reassign the drawing of congressional and legislative districts from the state legislature to a commission composed of legislators and citizens.

Legislatures must uphold the U.S. Constitution’s one-person, one-vote principle and follow federal law on race when they adopt new plans. But “there are no best practices for how to balance criteria,” Williams says. Across the country, legislatures will be following their state’s guidelines that all newly drawn districts include a combination of compactness, contiguity, preservation of political subdivisions (like counties)—all while avoiding pairing incumbents.

Reassessing Policing

Lawmakers will continue to confront policing issues that were elevated by the murder of George Floyd in Minneapolis during his arrest last May. The event brought attention to police accountability and use-of-force policies, including prohibitions on neck restraints. In the second half of 2020, some legislatures responded swiftly to change policing policy. At least 37 states and the District of Columbia introduced some 700 pieces of new legislation addressing policing. Nearly half the states enacted legislation addressing a broad range of issues.

If 2020 is any indication, lawmakers will continue to look at how to support officers while considering police accountability, transparency and oversight, use-of-force standards, training requirements, officer certification and decertification, body cameras, officer wellness programs and alternative responses to calls.

“We need to collaborate in a way that recognizes the sacrifices of the cops but also recognizes we have to adopt changes,” says Nevada Assembly Speaker Jason Frierson (D). Commenting on his state’s new law, Iowa Majority Leader Matt Windschitl (R) says, “This isn’t going to solve all the injustices out there ... but it is a step in the right direction and we need to continue to make progress ... as a unified people.”

Mitigating Natural Disasters

At times last summer it felt like the world was on fire—at least out West. If you live in the Southeast, you might not have noticed because you were preparing for yet another hurricane. Then there were the many tornadoes, blizzards, hailstorms and floods that hit all over the country. Natural disasters were a part of life in 2020.

As of Nov. 2, more than 47,500 wildfires had burned nearly 8.6 million acres. According to the Congressional Research Service, the number of annual wildfires varies but has decreased slightly over the last 30 years; the number of acres burned, however, has generally increased.

Whatever the reasons for these events, state lawmakers will be looking for ways to protect their communities from the damage these forceful incidents can do to businesses and the people who live in their paths.

Of course, avoiding these disasters altogether is the best solution. Building smarter, stronger and more resilient communities that can withstand a disaster or two will likely be the goal of several bills considered in 2021. Examples include measures requiring comprehensive preparedness planning; revision of building codes and standards for floodplain management; zoning changes to limit or restrict building in areas prone to wildfires and flooding; stricter earthquake- and wind-resistance standards; the use of fire-resistant materials and techniques; and more.

Funding Infrastructure Fixes

Many of our roads and bridges are falling apart. More than 10% of the nation’s highways and 8% of its bridges are in poor condition, according to AutoInsurance.org, based on data from the Federal Highway Administration. The country’s transportation funding system, largely based on fixed-rate gas taxes, hasn’t kept pace with increasing infrastructure construction costs. The deficiency has been amplified by the growing use of more fuel-efficient vehicles and the recent decrease in driving because of the pandemic.

The federal gas tax has not increased in more than 25 years, resulting in revenues equivalent to one-seventh the amount of real revenue in 1950.

Thirty states have increased their fuel taxes since 2013. Current per-gallon state rates range from 14.7 cents in Alaska to 61.2 cents in California.

Missouri Senate President Pro Tem Dave Schatz (R) believes this issue is critical to the future of his state. In December, he prefiled legislation to increase the state’s gas tax by 2 cents a year for five years. Missouri has the country’s second-lowest gas tax rate at 17.4 cents per gallon and hasn’t raised it since 1996. “It doesn’t take a rocket scientist to figure out that depreciation is something that is very real,” he says.

In Idaho, as in most states, there is a backlog of transportation infrastructure needs, Bedke says, “but there’s always a conflict on where the (limited amount of) money should be spent.” Idaho’s gas tax rate of 33 cents per gallon ranks it 20th in the country.

Many legislatures will continue the search for transportation funding alternatives such as:

  • Special fees on electric vehicles.
  • Indexed gas taxes that keep pace with the rate of inflation.
  • Fees based on the miles a vehicle travels rather than the amount of gas it consumes.

Rebuilding Child Care

The child care industry was hurting before the pandemic hit. “Child care is near the top of my list for this session,” says Washington Senate Majority Leader Andy Billig (D). “It’s important for the recovery.” He believes his state has a great child care program, but it needs to be expanded. “Early education has shown it gives a great return on investment. But we need to professionalize the industry to improve wages.”

The average child care worker makes less than $11 an hour, according to the U.S. Bureau of Labor Statistics, and often lacks health insurance, paid sick leave and other employee benefits. The price of child care varies widely by state, but Child Care Aware calculated the national average for one child to be about $9,400 a year, which is more than 10% of the average married couple’s household income and 34% of the average single parent’s income.

These two challenges—parents who can’t afford to pay more and child care providers who can’t afford to make less—had created a child care conundrum. Then came COVID-19. Parents who lost their jobs in the pandemic no longer needed child care or struggled to pay for it, causing enrollments to nosedive. But essential workers and low-income families who could not afford to stay home were often left with few, if any, options as child care centers closed and providers quarantined. Drastically decreased enrollment plus higher costs due to cleaning and acquiring safety equipment meant providers were earning even less.

“The pandemic helped expose how fragile America’s child care industry is, and has been, for years,” says Jennifer Palmer, a policy associate in NCSL’s Children and Families Program. “Policymakers now have an opportunity to envision a whole new system.”

Legislators on both sides of the aisle acknowledge that rebuilding the child care system and supporting their state’s economic recovery go hand in hand. But it could be very expensive to overhaul child care, and finding the money will be a big hurdle.

“As we’re having conversations about rebuilding post-COVID,” says Pennsylvania Representative Liz Hanbidge (D), “we need to give credence to the fact that child care is part of that conversation.”

Reforming Voting Laws

Voting issues took center stage in 2020, from the primaries getting caught in COVID-19 crosshairs to the general election seeing the highest voter turnout since 1900, at 66.4% of eligible voters. And that means election administration is likely to be hot, hot, hot in legislative chambers in 2021.

Last year the slow-growing trend in pre-Election Day voting (absentee/mail voting and early in-person voting) became a stampede. For 2021, the trend will likely continue and with it will come questions that may not have been so important back when almost everyone voted in person on Election Day. What happens, for instance, to the ballot of a voter who dies after casting it but before Election Day? Do voters have a chance to fix an absentee ballot they forgot to sign or because of some other mistake?

For states that have used mail voting for a while, those questions are easily answered. “We’ve been conducting all-mail successfully for a long time,” Washington’s Billig says. “The claim that mail-in is problematic just isn’t the case here. Its reliability has been demonstrated year after year.” But some, including outgoing President Donald Trump, remain skeptical.

Second, 2020 brought front and center an interest in election emergency preparedness. Many states will be scrutinizing the balance between gubernatorial and legislative power in cases of cyberattacks, hurricanes and pandemics and questioning whether laws are broad enough to cover all possible contingencies and clear enough to guide action, without the help of a judge.

Third, the emphasis in 2020 on the timing and safeguards of counting votes might mean legislatures will look at after-the-voting-ends timelines and requirements. Recounts, postelection audits, certification dates, rules for contesting an outcome—2020’s general election made all these ripe for legislative oversight and review in 2021.

Welcome 2021

Plenty of other issues will fill lawmakers’ time—taxes and teleworking, veterans and prescription drugs, privacy and cybersecurity, school choice and prison sentences, pot and potholes. But this year, COVID-19 will overshadow them all.

Billig, however, refuses to blame all our country’s ills on the pandemic.

“The pandemic exposed and exacerbated cracks that already existed in our system—flaws in health care access and in our public health system,” he says. “We had a child care crisis, a housing crisis before. The pandemic just made it worse.

“The good news is that the new year offers huge opportunities. We will be focusing on COVID recovery in 2021, but not just building back. We want to build back stronger, better and fairer.”

Mary Winter is a Denver-based freelance writer. Julie Lays is the editor of State Legislatures magazine.

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