Report State Legislative Policymaking in an Age of Political Polarization

Executive Summary

This report summarizes the results of a study of political polarization in state legislatures and its effects on policymaking. A team of NCSL staff and academic political scientists conducted more than 250 interviews of legislators, staff and other participants in 10 state legislatures during 2015-16 legislative sessions. We found evidence of significant—and increasing—polarization in most of these 10 state legislatures comparable to that experienced by Congress. However, we concluded that most of the legislatures in our sample were able to negotiate differences and reach settlements on major policy issues like budgets, transportation and higher education under conditions of political polarization and divided government. 

Factors that legislators believe mitigate the effects of polarization on policymaking, especially when comparing themselves to Congress, include:

• State constitutions and rules such as single subject requirements for bills, limited sessions with effective deadlines, requirements for balanced budgets, and the fair and consistent application of rules.
• Governors and legislative leaders who are able to see the big picture, communicate and work together effectively, and make efforts to treat the minority party fairly and value their input.
• Empowered committees that deliberate effectively and make efforts to incorporate minority party ideas.
• Personal relations, cultures and traditions among legislators that promote interparty communication and cooperation and engender trust and respect.
• Nonpartisan staff.
• A determination to get things done, often expressed as “We’re not D.C.”

We also identified factors that exacerbate the effects of political polarization on policymaking. They include leaders who take ideological, uncompromising positions, the 24-hour news cycle and social media that impede deliberation and the open exchange of ideas, and a decline in cross-party friendships, socializing and collaboration.

Our research produced a number of useful ideas for state legislators and members of Congress on how to function as effective policymakers under conditions of political polarization.

Introduction

During the six years of the Obama Administration when control of the federal government was divided between Republicans and Democrats the Congress came in for considerable criticism. The public, the media and even scholars regarded it as highly polarized, with members of each party implacably opposed to the other, and unable to negotiate and resolve difficult public policy problems with a president of the opposite party. 

But Congress is one of only 51 legislatures in the American system of representative democracy. Have the 50 state legislatures been similarly gridlocked by polarization, unwavering competition and intense ideology? How many of them are performing well at crafting solutions to difficult policy problems in a climate that is anti-political, anti-politician and polarized? Why have some states experienced problems with reaching settlements on policy issues, like Congress, while others have not? To the extent that states have been infected with the same problems as Congress, what can be done about it? What lessons can Congress learn from state legislatures about mitigating or reversing political polarization?

In order to understand policymaking in a time of political polarization, the National Conference of State Legislatures (NCSL), together with a team of political scientists, studied the policymaking process in 10 state legislatures during the 2015 and 2016 legislative sessions. The team conducted in-depth interviews with hundreds of legislators and other participants in the legislative process. This report summarizes the findings from those 10 state studies.

The goals of the research were to:

• Expand knowledge about the institutional features and political forces that determine party polarization and affect legislative performance.
• Provide ideas and tools to help legislative practitioners mitigate the effects of extreme partisanship.
• Determine if there are lessons from states that might help reduce the impact of polarization on policymaking in Congress.

The William and Flora Hewlett Foundation provided support for the case studies of 10 states. The principle investigator on the project and author of this report was NCSL-emeritus staff member Karl Kurtz, now a consultant with LegisMatters, and the project manager was Brian Weberg of NCSL. They assembled a team of eminent political scientists consisting of professors Gary Moncrief (Boise State University), Lynda Powell (University of Rochester) and Peverill Squire (University of Missouri) to help design the project and conduct the research.

In addition to the studies of policymaking in 10 states, NCSL also conducted the American Legislator Survey in 2014 (Appendix  III). The survey, which was sent to all state legislators, was designed to uncover lawmakers’ attitudes toward partisanship, the institution of the legislature and the policymaking process. Findings from this 50-state survey that bear on polarization and policymaking have been incorporated into this amended version of a report that was originally published online in April 2017.

The 10 Case-Study States

The legislatures chosen for in-depth interviews include a few states with unified government—governor and both houses of the legislature under the same party’s control—but the majority in the sample operate under divided government in order to strengthen the comparison to divided government at the federal level at the time we conducted the study in 2015-16. 

We chose seven states with divided government—Colorado, Iowa, Maine, Massachusetts, Minnesota, Virginia and Washington—and three states with unified party control—Connecticut under Democratic control and Tennessee and Wisconsin with Republicans in charge of the legislative and executive branches. All 10 states have experienced divided government at some point during the period since 2000 (see Appendix I).

Each of the five principal project analysts (plus Tim Storey, a senior manager at NCSL) was paired with an NCSL staff practitioner to conduct the studies of the 10 state legislatures.
 
These research teams spent a week in each of the capitals and conducted a total of 258 interviews with current and former legislators (including former legislators now serving in Congress), staff, and other participants (lobbyists, academics and reporters) in the legislative process. We conducted interviews in the Massachusetts and Wisconsin legislatures and with members of Congress who are former state legislators in 2016. The interviews in the other eight states all took place in 2015.

We assured all interviewees that their comments were confidential in the sense that they would not be directly identified with any quotations.

Other factors besides the partisan makeup were taken into account in the selection of study states. These include the presence or absence of term limits, regional diversity, a range of different levels of legislative professionalism and the willingness of legislative leaders to have their legislature included in the study.

Term limits for state legislators are an important institutional variable, setting the 15 states with limits apart from the other 35 legislatures and the Congress. In our sample of states, Colorado and Maine have term limits. We achieved regional diversity in our sample with three states each from the Northeast and Midwest, and two states each from the South and West.

Among the case-study states, Massachusetts and Wisconsin fall in the more professionalized category—i.e., year-round legislative sessions, large staffs and higher pay for members. In many ways legislatures in this category are more like Congress in style and operations than they are like other state legislatures. Maine and Virginia are in the classic citizen legislature category (short sessions, low pay and small staff). Colorado, Connecticut, Iowa, Minnesota, Tennessee and Washington are in the hybrid category in between the two extremes.

Using a combination of roll-call voting analysis and a national candidate survey known as the National Political Awareness Test, or NPAT, political scientists Boris Shor and Nolan McCarty have published a measure of the ideological differences between the two parties (i.e., levels of polarization) in each of the 99 chambers of the state legislatures. They show that, in fact, most state legislatures are more polarized than the Congress. Among our 10 states, the Colorado, Washington, Wisconsin, Minnesota and Virginia legislatures (in order from more to less polarized) are substantially more polarized than the Congress on the Shor/McCarty measure. Maine, Iowa, Connecticut and Tennessee are slightly more polarized than Congress, and Massachusetts is substantially less polarized (see Appendix II).

The Shor and McCarty scale of state legislative polarization is a useful backdrop to our analysis of polarization in 10 state legislatures, but it is only a starting point. We will present differing perspectives on the extent of polarization in our 10 states. More importantly, the main investigative task of this NCSL project is to determine the conditions under which legislative institutions operate reasonably well even when the parties are polarized. 

Three Separate Concepts

At the congressional level, the three concepts of polarization, policymaking (or its converse, gridlock) and civility (or incivility) have become deeply intertwined: To the general public and many observers it appears that incivility, obstruction and gridlock are the inevitable products of polarization. It is, however, possible to be ideologically polarized yet still negotiate agreements on policy, just as it is possible to be polarized yet respectful and civil. Similarly, effective policymaking can occur under conditions of either civility or incivility. Therefore, it is important at the outset to define what we mean by the concepts of polarization, policymaking and civility. 

We define “polarization” as parties that are ideologically distant from one another, but substantially unified internally. In one of our interviews, a Wisconsin Democrat (minority party) said, “The two parties are ideologically split—there’s not much disagreement within them. Both parties have purged their moderates and become more extreme.” That’s the essence of polarization.

Policymaking is the process of making laws. In the legislative setting, lawmaking is usually incremental. The process is characterized by competing interests reaching agreements, often temporary, through deliberation, negotiation and compromise. We often use the term “settlements” interchangeably with policymaking to emphasize the short-term nature of legislative solutions and the implicit notion that this year’s policy may have to be revisited and adjusted next year. The converse of policymaking is gridlock: the inability of legislators and executives to reach an agreement or pass a law, with the result being stalemate or inaction. 

Civility refers to norms of courtesy, politeness, comity and respect. While many believe that civility facilitates policymaking, in our view it is not a prerequisite for policymaking to take place. Because the media focus on public name-calling and blame games, incivility may mask behind-the-scenes negotiations and policy resolution.

Because of our particular interest in divided government, our focus is on compromise, or deal-making, between political parties. Under divided government the minority party in one chamber may be the majority in the other, or the governor may buttress the minority in both chambers. As a result, compromise is a necessary part of the process. A Minnesota minority leader said, “The public view of compromise is meeting in the middle. But in the legislature, compromise is about what the minority can extract using their limited resources, which involve time, [the occasional ability] to embarrass the majority, and trading votes on some key issues.” Or, as a Virginia minority leader put it, “[In compromise,] the goal of the minority is to provide input in the process, to get one-quarter of a loaf, or even half, and to put our fingerprints on the legislation.

A second Minnesota minority leader said, “Relationships, trust and bargaining chips are the key.” As a result, in the analysis that follows, after describing the conditions of political polarization in state legislatures, we will focus on how legislators and governors build relationships, establish trust and get deals done. How the majority treats the minority will be a major theme of our discussion.

Evidence of Polarization

In almost all of our 10 case-study states, our interviewees told us that the parties in the legislature have become more distant from each other over time and that there is less diversity within each of the parties.

Among the ranks of Republican legislators, we were often told that the fear of a primary challenge from the right was driving their legislative caucus toward a more conservative, less accommodating position. Many states had their own state legislative version of the tale of the primary defeat of U.S. House majority leader Eric Cantor in Virginia that sent shock waves through the U.S. Capitol in 2014. For example, in Tennessee, Representative Dennis “Coach” Roach, a popular, long-serving conservative Republican high school teacher and wrestling coach, was defeated in 2014 by a candidate who described himself as “More pro-life than your pastor, more for the Second Amendment than Davy Crockett, and more for traditional marriage than Adam and Eve.”

In the Virginia Senate, which has had narrow, changing majorities for more than a decade, it was widely perceived that two moderate Republicans who had been at the center of deal-making between the parties, Walter Stosch and John Watkins, chose not to run for re-election in 2015 because they knew they would face a primary challenge. Another Virginia Republican senator who was known for a willingness to compromise, Emmett Hanger, narrowly survived a primary. The conservative speaker of the House, Bill Howell, who had not been challenged in an election for years, defeated an even-more-conservative primary opponent more handily. 

In Wisconsin, moderate Republican Senators Dale Schulz and Mike Ellis, who had voted against the landmark collective bargaining bill promoted by Governor Scott Walker, similarly chose not to run in 2014 after being threatened by primary opposition.

The effect of these real or threatened challenges to Republican members was to move the survivors to the right and reduce their willingness to negotiate and compromise with Democrats. A Republican leader in Virginia, who himself feared a primary challenge, said that he regarded his role as protecting his members from votes that would open them up to challenges. A Republican leader in Wisconsin talked about the constant need to balance the interests of two groups of Assembly members: those who live in fear of primary challenges from the right and those from marginal districts who are potentially vulnerable to defeat by Democrats. 

In most states, the threat of primary challenges was ascribed to the growing influence of the Tea Party. But the number of legislators who identify as Tea Party members is relatively small. A Wisconsin Republican leader argued that it is more accurate to describe the most conservative members of his caucus as “those who live in fear of a primary challenge” than to call them Tea Party members.

Democrats also pointed to the loss of moderate members and a movement of their caucus to the left, but in their case it is less due to primary activism from the left than it is attrition. In states where Democratic numbers in the legislature have declined sharply in the last 15 years (Tennessee, Virginia, Wisconsin and, to a lesser extent, Minnesota), the members who remain tend to come from inner cities or otherwise urban districts. There are few, if any, rural Democrats left in these legislatures. The result is the same as with the Republicans—a more homogeneous caucus that is less willing to negotiate or compromise with the other side. A long-serving Wisconsin Democrat said, “Moderates are the catalysts of compromise—but there aren’t many moderates left.”

One of the questions in the American Legislator Survey asked, “When you consider their opinions, how do the following groups affect your likelihood to compromise in your policy decisions?” (Scale of 1=Less Likely to 5=More Likely) Of the four groups that respondents were asked to rate, General Election Voters on average scored 3.5, Primary Election Voters 3.3, Legislative Leaders 3.2 and Contributors 2.5. For the most part, these are “middling” responses, indicating that none of the groups has a major impact on legislators’ likelihood of compromising. Surprisingly, Primary Election Voters scored slightly above the mid-point of the scale—more toward “More Likely” to compromise. There were no statistically significant differences between Democrat and Republican legislators on this question. These national responses to the survey serve to moderate the conclusions drawn from interviews in the 10 states regarding the polarizing effect of primary election threats.

In state after state, legislators told us that the increasing polarization in the legislature is caused by polarization of voters and that members are merely representing their districts. A veteran liberal member in Washington said that he understood why the new conservative members are the way they are: “They’re voting their district and you can’t get mad at them for that; I’ve done it myself.”

As evidence of the public’s increasing polarization, legislators pointed to a decline in split ticket voting. A Wisconsin legislator called attention to a Journal Sentinel and Marquette University Law School study showing that the proportion of voters who split their ballots in statewide elections had declined from a range of 23-36 percent in the 1980s and ‘90s to one of 6-7 percent in the 2010 and 2012 elections.

Political scientists disagree about whether it is the public or the political elites that are more polarized. However, a 2014 Pew Research Center survey supports the views of the legislators we interviewed that the public is more polarized than it used to be. Pew reports that the ideological gap between the median Democrat and the median Republican has grown considerably since 1994, and especially since 2004. To be sure, a majority of respondents still identify themselves as moderates. But the proportion of consistently liberal identifiers and consistently conservative identifiers has clearly increased. And these groups hold increasingly negative views of each other. Moreover, these are the groups that are most active politically, and most likely to contribute to a candidate.

Another external factor that shows or contributes to polarization with legislatures is the escalation in campaign costs, often fueled by the growing role of independent campaign expenditures. In Colorado, Tennessee, Virginia and Wisconsin, legislators noted that outside groups were major instigators of, or at least contributors to, within-party challenges or to efforts to recall legislators.

In Maine, where legislative campaigns usually cost a modest $30,000, independent expenditures are playing an increasing role in campaigns. One 2012 Senate race had independent expenditures of $500,000. A Republican said that he had $200,000 spent against him and was outspent four to one. The possibility that a candidate will be targeted by large independent expenditures has deterred some candidates from taking part in Maine’s voluntary “clean election” law that provides public funding in exchange for a commitment not to raise large private funds. A Maine senator said, “If a $25,000 to $30,000 Senate race now becomes $300,000 with independent expenditures thrown in against you, it is very personal. It is hard to let that memory go once you are elected.”

Based on our interviews and observations of the interactions between Democrats and Republican during the 2015-16 legislative sessions in our 10 states, we would have a slightly different ranking of their degree of polarization compared to the Shor and McCarty study that is based on roll-call voting. We would move Colorado, Minnesota, Virginia and Washington from the most polarized grouping to moderately polarized, leaving only Wisconsin in the highly polarized category. We would also move Connecticut to the less polarized category, along with Massachusetts. (One Massachusetts House member said of partisanship in his state, “By national standards, this is a pretty tame place.”)

Regardless of where each state ranks on a polarization scale, our interviews confirm that state legislatures operate with political parties that are increasingly ideologically distant from each other. And despite continuing disagreements within the parties in some states, there is increasing pressure to conform to party orthodoxy in most of them. In other words, most state legislatures operate under substantially the same conditions as the Congress.

Settlements (Policymaking)

In state after state we were told that 90 percent or more of all bills are not partisan and are passed unanimously or with substantial bipartisan majorities. In Wisconsin, leaders had calculated an exact number—93 percent. The point of these comments is usually that the media’s focus on conflict exaggerates the extent of partisanship in legislatures. A Washington legislator, with some hyperbole, said, “While the media focuses on discord and doesn’t report consensus, 98 percent of the bills pass with bipartisan support.” “There’s far more collaboration than what the public sees,” added a Wisconsin legislator.

While accepting the importance of the large number of bills that pass with little or no opposition, it’s also true that the remaining 10 percent or so of issues are usually the most difficult and contentious and are often highly partisan and divisive. The performance of legislatures on the contentious issues is often a measuring stick for success or failure in policymaking.

Therefore, we will devote this section of the report to outlining a few of the key settlements reached in our sample of 10 legislatures in recent years. Because policymaking is often significantly different between states with divided government and those with unified government, we will separate the discussion of states accordingly. We will also note some instances of significant stalemate or gridlock in the states.

States with Divided Government

Budgets are the single most important legislative statement of priorities for a state. They not only determine spending levels but also often contain policy. For this reason, we paid particularly close attention to negotiations on budgets in our sample of 10 states.

With a few notable exceptions that we will discuss under stalemates below, budgets typically pass most of our 10 case-study states with bipartisan majorities. The reasons given for this include the balanced budget requirements contained in 49 of the state constitutions, a strong tradition of bipartisan budgeting and the “grease” provided by the use of earmarks (or member items) to bring along recalcitrant members.

The balanced budget requirement, usually combined with a limit on the length of legislative sessions, looms large in everyone’s assessment of the budgeting process. “It’s the one bill that MUST pass,” was a typical comment. The constitutional requirement to reach a settlement on the budget forces factions (sometimes within the same party) to work together. To the balanced budget requirement, Virginia adds a deep-seated commitment to maintaining the state’s AAA bond rating. “The AAA bond rating is a compelling force that transcends party,” said a veteran staffer, adding that it provides the “come to Jesus” moment at the end of budget negotiations.

In Maine, bills introduced after a certain date in the legislative session take on “emergency” status and therefore require a two-thirds majority. This includes the budget bill because it is typically not introduced until late in the session. The negotiation and compromise necessary to obtain the two-thirds majority has meant that the Legislature has been able to withstand and overturn the frequent vetoes of the budget by maverick conservative Governor Paul LePage.

Washington state’s twist on the balanced budget requirement has been to add a rule under its two-year budget process that budgets must balance over four years. This is designed to prevent postponing actions or using budget gimmicks that pass deficits on to future years. Washington legislators viewed this provision as also having promoted bipartisanship on the budget.

In most legislatures the money committees play key roles in bringing members together. Serving on appropriations or budget committees usually requires a greater commitment of time. We were told in several states that the best and brightest legislators are appointed to these committees. “Being on the money committee makes you grow up,” said a Virginia House member. Members in several states talked of the collegiality that develops on budget committees as a result of the responsibility and the increased time working together.

Colorado’s powerful six-member Joint Budget Committee (JBC), made up of two majority and one minority member from each chamber, maintains a practice of not recommending a budget to the House and Senate unless the vote is unanimous in committee. All members of the JBC commit to supporting the budget with their caucuses, and the result is that budgets often pass both chambers with relatively few no votes.

Legislators in other states also reported that minority party members who serve on budget committees have more influence on the budget than the public sees. In Massachusetts and Virginia, both of which have large majorities for one party in both chambers, money committee chairs meet with every member of their committee individually early in the session to find out what their priorities are. The 2016 budget passed the Massachusetts General Court unanimously in part because every member got something in the budget. A reporter dubbed this practice “gazebos in town squares.”

In a special session caused by an inability to agree on a budget during the regular session in Washington state a few years ago, the House minority leader took the initiative and brokered a deal. He developed a proposal that he took to the Democratic speaker of the House and asked him if he would agree to it if the Republican Senate majority leader would agree to it. The speaker said, “Yes, but the Senate leader will never agree to it.” He went to the Senate leader with the same question and got a similar response that he would agree to it but predicted that the speaker would not. The minority leader then fleshed out his proposal in private with key players in both chambers, and they ultimately reached a settlement. An anonymous person posted a Swiss flag on the minority leader’s door.

We received many reports of cross-party negotiation and compromise in areas other than the budget. Several of these were in the domain of transportation. A major transportation infrastructure bill in Virginia in 2013 illustrates the transitory nature of much legislative deal-making. Playing an unusual role for an anti-tax Republican (“Nixon goes to China,” as one legislative leader put it), Governor Robert McDonnell said that the state was out of money for transportation and urgently needed to act to build more roads. The House of Delegates was the principle battleground on the bill as there is a major split in its Republican caucus between suburban legislators who stood to benefit from road-building and rural legislators who did not. This was further complicated when the caucus adopted a “Hastert rule” requiring that a majority of the majority party support the bill before taking it to the floor. The speaker and key committee chairs soon hijacked the governor’s revenue-neutral proposal and eventually crafted a compromise tax proposal that reduced the gas tax but increased the sales tax. The deal also allowed urban areas that were in most need of the improvements, especially Northern Virginia, to tax themselves more. No one was satisfied with the final outcome, but it was settled for a time, with most members recognizing that they would likely have to return to the issue before long.

Iowa and Washington enacted fuel tax increases to support transportation infrastructure in very similar fashion in 2015. Taking on an issue that an Iowa legislator said was “about as popular as the legislature raising its own salaries,” the legislatures in both states embarked on multi-year public education efforts about the need for highway improvements. And both crafted a strategy of involving all four caucuses in the decision-making. Lots of compromises were made, and leaders in both states carefully calculated the number of votes needed to pass the bills and gave their members freedom to vote no if they needed to. 

The large Democratic majority in the Massachusetts legislature means that cross-party negotiation is not often required. However, a history of Republican governors and a tradition of the two parties working together means that there are many stories of effective negotiation and deal-making. One example is a restructuring of the board of Boston’s mass transit authority, the MBTA, in the 2015 session. After a bad winter in which the MBTA had often shut down due to weather, there was widespread public and media demand for a change in the management of the transit authority board. Democrats were reluctant to take this issue on, but under public pressure allowed Republicans to advance a restructuring proposal. The bill was largely written in the Senate Republican minority leader’s office, and eventually passed with bipartisan support.

A 2016 bill in the Massachusetts legislature illustrates the importance of conference committees in the end game of policymaking. Every member of the legislature had had experience with opioid death, either in their own family or their districts, so there was a broad commitment to do something about the issue. The Senate came out with a bill first. Republican Governor Charlie Baker made a very different proposal two months later. The House then crafted its own bill, incorporating parts of the two earlier proposals. The differences were worked out in a six-member closed conference committee consisting of the two ways and means (appropriations) committee chairs, the substantive committee chairs with jurisdiction of the subject and two minority party members.

We collected many other stories of negotiations and settlements in states with divided government on issues such as mental health, drug addiction, higher education and criminal justice reform. In general, the more local the issue, the more likely there was to be effective deal-making. But legislators in several states reported that it was more difficult to enact policy on issues that divide the parties nationally, such as the Common Core education standards, health care or environmental policy.

States with Unified Government

The three states in our sample with unified government in 2015-16—Connecticut, Tennessee and Wisconsin—operate differently from the ones with divided government. For the most part, the majority does not need minority party votes to pass bills. But each one has its own traditions and manages conflict in different ways.

The Connecticut legislature has had large Democratic majorities in both chambers for more than 20 years and a Democratic governor since 2010. The power of unified government is demonstrated by a 2015 legislative scorecard that counted passage of 31 of 45 major issues, in addition to the passage in 2013 of gun control legislation (in the wake of the Newtown massacre) and a major jobs package. From time to time the Democratic majority draws on Republican minority support to pass laws, as they did in a criminal justice reform package advocated by the governor in 2015.

Underlying the legislative process in Connecticut is a culture described as a “New England sense of civility.” It is manifested by a practice of never “calling the previous question”—shutting off debate. Such a motion would be viewed as a “nuclear option” in Connecticut. It is a very strong norm that the minority has the right to extended debate, and it appears to work because the minority does not abuse the privilege by using it as a filibuster.

Republicans held a supermajority in the Tennessee General Assembly along with the governorship. The Tennessee leaders and governor in 2015-16 were moderate Republicans who were willing to compromise to accomplish their goals. However, there was a significant Tea Party faction in the Republican caucus that could block action. Democrats for the most part had little negotiating power.

The result is that the legislature has enacted several of Governor Bill Haslam’s initiatives in recent years, such as a reduction in the state’s income tax on interest and dividends and a proposal to provide free community college for every high school graduate. However, opposition from business, medical providers and conservative legislators blocked enactment of the governor’s proposal to provide federally subsidized health care coverage to low-income Tennesseans. In one instance, an “odd couple” coalition of Tea Party Republicans with Democrats formed to pass a temporary two-year continuation of the state’s Common Core education standards and established a governor’s commission to draft new standards.

Similar to Connecticut’s New England civility, the Tennessee legislature has a strong culture of respect among members and a deference to seniority that has allowed the minority party at least some level of participation and influence in the process. However, the third unified state in our study, Wisconsin, has a different history that is an important part of our study of policymaking under conditions of polarization and deserves more detailed discussion.

After living under divided government for 12 years, Democrats won a majority of both chambers of the Wisconsin Legislature in 2008 and, with holdover Democratic Governor Jim Doyle, pushed through a significant tax increase over Republican objections. In the 2010 election, Republicans accomplished a reversal, sweeping the Assembly and the Senate and electing Scott Walker as governor. In a nationally watched spectacle, the new Republican majority, at Governor Walker’s behest, enacted a landmark budget adjustment bill known as Act 10. It significantly restricted collective bargaining by public employees and reduced their benefits, among other provisions. Democrats were initially able to block this action by leaving the state and denying a quorum in the Senate but in the end were powerless to prevent the majority’s actions.

In the aftermath, both parties initiated recall elections against key senators and the governor in 2011-12. A few Republicans lost their recall elections, but Governor Walker prevailed, and by the start of the 2015 session, Republicans had actually increased their majority in the Assembly and maintained control of the Senate.

In the five years after taking control of Wisconsin state government, the Republican majority has continued to make effective use of their unified majority position. By the count of one reporter, Republicans enacted 25 major reforms between the 2010 election and the middle of the 2015 session, including a redistricting bill that most said is likely to ensure Republican control of the Legislature throughout the decade. Both Democrats and Republicans reported that Democrats have no influence on state fiscal policy or major legislation. The majority never negotiates with the minority.

But the fact that there is no cross-party negotiation does not mean that there are no compromises or settlements. The Assembly Republicans are divided into three factions: a group of conservative members who are constantly guarding against primary challenges in their districts from the right, a collection of more moderate members who come from marginal districts that Democrats often win, and everyone else in between. Both of the more extreme factions have the power to block action. The Senate is closely enough divided that a few senators can stall bills. Since the Republican caucuses in both chambers use a rule that no bill goes to the floor without the support of the majority of the majority party (“Hastert rule”), negotiation and compromise are often necessary within the party.

In many ways, Wisconsin’s Act 10 was the equivalent of Congress’ enactment of the Affordable Care Act under a unified Democratic government in 2009. It was a highly divisive issue that was passed by the majority with little or no minority input and has continued to define cleavages and affect relationships within the Legislature ever since. The analogy between the Wisconsin Legislature and Congress breaks down in that the federal system switched to divided party control in the next election after adopting a landmark law and experienced significant gridlock as neither side was willing to negotiate with the other. In Wisconsin, on the other hand, Republicans held onto their margins in the wake of Act 10 and continued to benefit from their majority to enact significant changes in state government.

Assessments of the lasting impact of the 2011 Act 10 in Wisconsin differed in 2015. Many participants in the process used the term “Act 10 hangover” to describe continued acrimony and distrust between Rs and Ds. A particularly embittered Democratic senator argued that the Wisconsin Legislature is no longer functional, saying, “The essence of Congress has trickled down to Wisconsin.” Others, however, say that the tactics of the Republican majority on Act 10 were not significantly different from the Democrats’ when they had unified control. They argue that the levels of trust between the two parties are not any worse in Wisconsin than in any other state with unified party control. Act 10 is a thing of the past in their view.

Stalemates

For all of the stories of successful deal-making, we also heard tales of significant stalemates or gridlock. It is important to recognize that legislative stalemate is in effect a decision not to act, to maintain the status quo. In talking about a decision by a legislature not to act, one must be careful not to be biased in favor of government action because one person’s (or party’s) frustration about not passing a law is another person’s wise decision not to enact a new, flawed or unnecessary law. “Doing nothing is itself a policy decision,” said a Virginia staffer. 

For our purposes we define stalemate or gridlock as a failure to act on a critical or necessary issue, such as a budget, in a timely fashion, often requiring short-term stopgap measures or a government shutdown.

For example, in Virginia in 2014 the new Democratic governor, Terry McAuliffe, proposed as part of the budget that the state expand its Medicaid program in line with the Affordable Care Act provisions in which the federal government pays for the expansion. In the state Senate, it appeared that a few Republicans were willing to join the Democrats and go along with the idea. The House, however, was divided on the issue. Out of concerns over an ancillary issue about the governor’s power to appoint state judges when the legislature is not in session, the Republican leadership of the House decided to stay in session as long as possible. Stalling on the budget and the Medicaid expansion proposal became the vehicle for doing this, and the more time went on, the more hardened the Republican House position against Medicaid expansion became.

In the end, a budget that did not include Medicaid expansion was adopted in September, four months after the constitutionally set adjournment date and three months into the new fiscal year. However late, it was a settlement of sorts, one in which the House successfully faced down both the governor and the Senate. Interestingly, the specter of the 2014 stalemate contributed to largely peaceful budget negotiations in 2015.

Minnesota experienced a three-week government shutdown and the furlough of 19,000 state employees in 2011 in Democratic Governor Mark Dayton’s first year in office facing a Republican-controlled Legislature. Both sides took a hard line on the multiple bills that make up the state budget and refused to budge. Under public pressure as road construction projects were shut down and state parks were closed (over the July 4 holiday), the governor eventually backed down on most of his demands and acceded to the Legislature on most items. The governor, however, may have won the war as the public generally blamed Republicans for the shutdown, and they lost their majority in the next election. 

There was a prospect of a similar shutdown in Minnesota in the 2015 legislative session as Governor Dayton, this time with a Republican House and Democratic Senate, vetoed three omnibus budget bills after the Legislature adjourned. Following a state requirement, 10,000 employees received advance notice that they would be furloughed effective July 1. But in June the governor and Republican Speaker Kurt Daudt negotiated a deal, called a special session to enact it and averted the shutdown. As in Virginia, the memory of the black eye suffered by state government in 2011 helped to resolve the budget in 2015.

Factors that Mitigate the Effects of Polarization

We asked all of our interviewees what factors help them to overcome the effects of polarization and continue to enact policy.

Constitutions and Rules

Many legislators cited the importance of single subject rules for bills and strict interpretations of germaneness. A Tennessee Senate leader said that attention to germaneness guards against diversions in the process that might otherwise undermine settlements on key issues. In Colorado there is bipartisan pride in the legislature’s single subject rule, and the members police each other on it. In Iowa, one leader commented, “The speaker is very consistent about whether an amendment is germane. His interpretation is narrow and well-known.” The Iowa speaker himself said, “I give a reason about why I rule an amendment germane or not germane every time,” as a matter of courtesy and to help members feel that they get a fair shake.

Forty state constitutions have a provision1 that requires a bill to address or contain a single subject. Three-quarters of them have rules about the germaneness of amendments and motions, although not all are interpreted as strictly as the examples from our case studies.

Twenty-two of the 99 state legislative chambers have a requirement2 that all bills be heard in committee. Legislators in Colorado, Maine and Tennessee particularly mentioned this provision as a matter of fairness to minority party members and a way to make sure that legislators can tell their constituents that their concerns have been heard.

All but two (Massachusetts and Wisconsin) of our 10 states have constitutionally required annual session adjournment dates. When comparing themselves to Congress, state legislators often cited this requirement as an advantage that forces timely action.

Closely related to limits to the length of legislative sessions is the notion of the part-time, citizen legislature in which legislators go to the capital for a (short) time to do the public’s business and then return to live and work in their communities. Lawmakers take great pride in their citizen legislatures and think that it makes a difference in their ability to get things done in a timely fashion. In states like Maine, Virginia and Tennessee, they cite the “supermarket effect”—citizen legislators constantly running into constituents on visits to the store—and the need to make a living outside the legislature as promoting relationships and connections that transcend politics.

In Massachusetts—the most full-time legislature among our case-study states—legislators say just the opposite. They believe the fact that they are in session most of the year and in the Statehouse together gives time to work on bills and resolve their differences. “We’re here to get things done,” said one legislator.

Because our sample of states contains only two of the full-time legislatures, we can’t resolve this difference of opinions about full-time vs. part-time legislatures.

Three-quarters of the state legislative chambers also employ deadlines3 for processing bills. These provisions typically include deadlines for bill introduction, committee action, action by the house of origin, action by the second house and conference committee actions. Minnesota legislators particularly mentioned their deadline system as an institutional mechanism that keeps the process flowing. In Tennessee, the Senate has a deadline system but the House does not. A Tennessee Senate leader commented that their system puts pressure on the House to work toward compromise.

In our discussion of budget settlements, we discussed legislators’ beliefs in the importance of state balanced budget requirements. Tennessee legislators not only talked about the balanced budget requirement’s importance for bringing opposing sides together on the budget, but also that it sets a precedent and provides an example on other issues.

Similarly, we mentioned the importance of rules that allow earmarks (sometimes known as “member items”) as a lubricant in reaching agreement on state budgets. We previously discussed Massachusetts’ “gazebos in town squares.” Virginia used to place earmarks for members’ favored projects in the non-state-agency portion of the budget, but in 2009 the state attorney general ruled that this practice was a violation of the state constitution. Artful and well-placed legislators are still able to place their pet projects directly into state agency budgets, but legislators and staff complain that it’s more difficult to do than in the past.

Regardless of the rules specific to particular states, legislators talked about the importance of fair and consistent application of rules in building trust. In congressional lingo, this is the equivalent of the “regular order”—an assurance, especially as a matter of fairness toward the minority, that rules and procedures will be followed consistently. And, as with Congress, in the few instances that we observed it, the practice of legislative leaders taking advantage of the power of the majority to change or ignore rules engenders distrust between majority and minority parties and exacerbates the effects of polarization.

Governors and Legislative Leaders

Many legislators told us that the role of leaders—whether in the executive or legislative branches—was crucial to the policymaking process. Speaking of leadership, long-time former Minnesota Senate majority leader Roger Moe said, “The legislative session is like a giant jigsaw puzzle. What’s the first thing you do with a jigsaw puzzle? You look at the picture on the front of the box to see how it is supposed to fit together. Good leaders help people see how the pieces fit together.”

The relationships between governors and the legislature, particularly the legislative leaders, often set the tone for policymaking in the states. In most states, governors are the single most powerful actors in the legislature because they set the agenda, submit a budget as a starting point for deliberation, and use the media attention they receive and their bully pulpit to influence public opinion. 

The formal powers of governors in our 10 states vary widely from relatively weak Virginia governors, who are unique in being limited to only one four-year term, to powerful Tennessee governors, whose budgets receive only limited changes by the General Assembly. Wisconsin’s powerful governorship is known for its “Frankenstein veto”—the power to delete individual words from bills and thereby completely change their meaning. Governor Jim Doyle famously used his veto power to reduce a 272-word section of a bill to 20 words and in the process transferred several hundred million dollars from transportation to public schools.

Beyond the formal powers of chief executives, the relationships between governors and legislatures seem to be highly idiosyncratic to the personal characteristics and skills of individual governors. For example, veteran legislative leaders in Virginia describe their relationships with governors in highly personal terms, saying that the personality of the governor makes the biggest difference. Leaders of both parties generally described having had very positive relationships with Democratic governors Gerald Baliles, Mark Warner and Tim Kaine and Republican Robert McDonnell. They reported that they had relatively poor communication with Democratic governors Doug Wilder and Terry McAuliffe and Republican Jim Gilmore. A long-time Republican leader said that he had met only twice with Governor McAuliffe in the first two months of 2015, compared to two or three times a week with Democratic predecessors Warner and Kaine and almost daily with Republican McDonnell. Governor McAuliffe meets weekly with Democratic leaders in the legislature but not with the majority party Republicans.

Legislators in Washington state described former Governor Christine Gregoire as someone who was skillful in facilitating agreement between Democrats and Republicans, but many viewed Governor Jay Inslee as a single-issue chief executive who doesn’t take the time to work with the Legislature. A former Iowa Republican leader said, “I used to have regular weekly meetings with Democratic Governor Tom Vilsack. Governor Vilsack brought people together.” In contrast, Republican Governor Terry Branstad meets only with the legislators from his own party. “He hasn’t worked to foster bipartisan relationships,” concluded this former leader.

In Tennessee, legislators regarded billionaire Republican Governor Bill Haslam as an outsider who is not heavily engaged in the legislative process. However, he held weekly breakfast meetings during sessions with the top leaders of both parties, and he and the two Republican presiding officers met for lunch at a restaurant near the capitol every Thursday as a public symbol of executive-legislative cooperation.

In his book, “The Best Job in Politics: Exploring how Governors Succeed as Policy Leaders,” political scientist Alan Rosenthal pointed to the importance of governors’ desires to leave a legacy. He said this desire to get things done and to take credit for legislative accomplishments leads them to moderate their positions and negotiate deals with legislatures. But he also noted that the new generation of governors faces a different set of circumstances than their predecessors, and this is largely due to increased partisanship and polarization. Under these circumstances, Rosenthal argued, the nature of policymaking is much different under unified government than under divided government. When the governor’s party controls both legislative chambers, they are less inclined to negotiate with the minority party.

Legislative leaders play major roles in determining the success or failure of legislative policymaking. Tennessee has a history of strong top leaders (with the title “speaker” in both House and Senate). They are the glue that holds the legislature together. They appoint all committee chairs and members and set the agenda for the legislative session. The character of the leaders is important to the cooperative tone that pervades the institution. Both speakers in 2015-16 delegated authority to their committee chairs and only become involved in negotiations on the most intractable issues. Both were political conservatives but also pragmatists who are inclined to seek settlements whenever possible rather than adhere to strict ideological positions. 

Massachusetts’ two top leaders were completely opposite in style and approach. Speaker Robert DeLeo ran a tight ship, relying on his chief of staff, the majority leader and the ways and means committee chair for advice and guidance. The speaker viewed himself as an inclusive leader that bends over backward to accommodate diverse opinions. But House committee chairs were very respectful of the speaker and did not run bills that he did not support. The House functioned efficiently under his leadership and got things done. His critics said that power was concentrated in too few hands, he dictated priorities to the members, and there was little or no meaningful debate.

Massachusetts Senate President Stanley Rosenberg, on the other hand, believed in a shared leadership style that encompasses both majority and minority senators (the minority holds only five of 40 seats). His goal was to make the Senate more participatory and to empower committees and committee chairs. “We’re trying to undo the centralized power of the president’s office; it’s hard and it has to be gradual,” said President Rosenberg. “It’s a cultural shift that requires senators to realize that with additional authority comes responsibility.” As an illustration of his style, Senator Rosenberg took a charter schools bill to the floor of the Senate with only 12 of the 21 votes he needed to pass it—something that Speaker DeLeo would never do. In the course of the debate, Senator Rosenberg met with every senator individually to find out what each wanted in the bill. “We kept adding amendments until we got a majority,” said the president.

Senator Rosenberg’s critics said he would get more done if he provided more direction to the members. The criticisms of the two leaders were mirror images of each other. “Our leaders need to find a happy medium between leadership control and members’ freedom of action,” said a veteran House committee chair.

A Washington staffer described the speaker in her legislature as “a conductor of an orchestra,” whereas the Senate majority leader resembled “a piano player in a bar, hoping the customers sing along.” This distinction between different styles demanded by larger houses of representatives compared to smaller, more collegial senates was common in our 10 states.

Washington state leaders used a variety of approaches to ensure civility, consensus building and teamwork between the parties. During a period when the House was tied in the early 2000s, the House adopted a formal “no surprise” rule. It required transparency with the members regarding rules of procedure and that leaders be open about their plans. Members regarded the rule as so successful that they have continued it ever since, even without having the incentive of a tied house. It provides assurance to the minority party that they will be treated fairly.

Long-time Washington House Speaker Frank Chopp was well-regarded for his behind- the-scenes work, collaborative style and willingness to let others take the credit. The Washington Senate has a practice of ensuring that each minority party member got at least one bill passed as a way of promoting bipartisanship. The House majority leadership also made sure that the chamber passed a substantial number of minority party-sponsored bills.

We previously reported on Connecticut’s practice of never calling the previous question. Similarly, an Iowa Senate leader commented, “We respect the minority party’s ability to voice their concerns, especially about the budget. We don’t use the tool of calling the question. Or, when we do, we consult with the minority leader. We don’t use parliamentary surprises.”

In commenting on the qualities of effective leaders, an Iowa leader said, “You have to understand the process, the rules and have the experience not to react to every little thing.” Experience for legislative leaders is in short supply in Colorado and Maine, both of which have eight-year limits on service in each of the two legislative chambers. Leaders in those legislatures never have more than six years of experience and seldom serve as leader for more than one two-year term.

Committee Systems

Paraphrasing Woodrow Wilson, a Virginia legislator said, “The General Assembly in committee is the General Assembly at work.” In a well-functioning committee system, committees give a fair hearing to all sides on proposed legislation, deliberate on the merits of each proposal with active participation by minority party members and screen legislation in their area of policy for the rest of the house. Committees are particularly effective when leaders give them the freedom to negotiate and act.

Several Minnesota legislators said that committees do most of the substantive work of the Legislature. Committee chairs are empowered to make key decisions, and they have important responsibility to set the tone of cooperation or partisanship on their committees. An Iowa committee chair said, “We have a lot of freedom and autonomy with our committees. I don’t have to ask for permission. Our role is to funnel the bills and make the leaders responsible for negotiating fewer bills… [and serve] as a conduit of information to the leadership.”

Many legislative leaders hold weekly meetings with committee chairs to strengthen communication and coordinate committee activities. A Virginia committee chair said of Sunday night meetings between committee chairs and leaders, “The communication from caucus leaders is important. They don’t often ask us for much, but when they do, you need to follow the caucus lead.” An Iowa leader reported that committee chairs have a lot of autonomy but that at the leaders’ weekly meetings with committee chairs, “We encourage the chairs to bring controversial bills to the caucus first, before the committee. We don’t want them to feel like leadership pulls all the strings.”

Some committee chairs reported that they made concerted efforts to overcome political polarization. A Washington chair said that he held weekly meetings with the ranking minority member and made sure that every member of the committee, Republican or Democrat, got a bill favorably reported out of committee. Other chairs in states with split legislative control talked about the importance of building personal relationships with counterpart chairs of the opposite party in the other house.
The perception of a well-functioning committee system and the theme of empowered committee chairs was echoed in most of our case-study states. However, legislators in the Massachusetts House and Wisconsin Assembly said that the leaders maintain relatively tight control over committee actions. Wisconsin Democrats feel as if the majority runs roughshod over them in committee. And in Virginia, for all the confidence legislators expressed in their committee system, one member said, “When a bill has notoriety, the committees don’t matter as much,” meaning that high-stakes bills bear the imprint of the leaders, the majority caucuses and the governor more than the committees.

Legislatures that operate primarily with joint committees are a special case. As it happens, the only three such legislatures in the country are in our sample of 10 states: Connecticut, Maine and Massachusetts. In all three states, the joint committees had co-chairs from the two chambers, had more House members than senators by margins of three or four to one, held joint hearings, and reported on bills to both chambers with a combined majority vote. Many interviewees in Maine thought their state’s joint committees facilitated negotiation and bipartisan compromises and reduced the need for separate negotiation between the chambers. Maine’s joint committee system has worked under both unified and split party control within the Legislature. One conservative member, though, complained that the joint committee system reduces internal legislative checks and balances and makes it too easy to pass legislation.

Connecticut legislators were similarly satisfied with its joint committee system, in part because both chambers have been under the control of the same party for so long. Some legislators expressed skepticism as to whether the joint committee system would survive a future change in party control in one chamber. Even though they had a Democratic majority in both chambers, Massachusetts Senate leaders were frustrated with the joint committee system because they felt as if it was under the control of the House, whose members could always outvote them on committees. The Senate president attempted to change the General Court’s joint rules and split committees between the chambers at the outset of the 2015 session. The House did not go along with this proposal. As a result, joint rules were never adopted for the 2015-16 biennium, and the legislature continued to operate with the old rules that remain in effect until new ones are adopted.

Although most of the rest of their committees operate by chamber, both Colorado and Wisconsin have very powerful joint budget committees. The Colorado House and Senate both elect three members to the Joint Budget Committee. The chairmanship rotates annually between the two chambers. We have already mentioned that the JBC operates under a rule that they do not recommend a budget bill unless there is unanimous support among its six members. This means that minority party members on the committee have considerable influence over the budget, and the committee must develop a “long bill” that will pass both chambers and obtain the governor’s approval. The JBC never adjourns, as it has power over funding decisions in case of emergencies between legislative sessions, and service on the committee is a full-time commitment. JBC members of both parties view themselves as a team and function as a built-in consensus building committee for the legislature.

Wisconsin’s Joint Finance Committee (JFC) is equally as powerful as Colorado’s JBC, although in recent years it has experienced more partisan conflict. Legislative leaders in each chamber handpick eight members to serve on JFC from among members they expect to be leaders in the future. (All but one top leader in recent memory has previously served on JFC.) The committee meets for eight to 10 hours a day for two months to develop the state budget, so the members get to know each other well. Historically the committee has operated in collegial fashion. Since the Republican takeover of the Legislature after the 2010 election, the Assembly Republican members of JFC have caucused together before each meeting, usually for many hours, to talk about the issues on the agenda and develop a position. They then vote together in the formal meeting, even if some of the members disagree with the position taken. This gives majority party Assembly members more power in the JFC and leaves the minority party out altogether. Democrats and Republicans alike say that the minority party has no impact on state budget outcomes.

Legislators often cited the importance for the policy making process of the ability of minority party members to have influence on committee decisions. This helps to build support for legislation and gives the minority party a sense of buy-in. In the American Legislator Survey, we asked a question about how much influence minority party members have on the respondent’s most valued committee’s decision making (Table 2). Note that two of the three states with joint committee systems are at the top of the list but that the third, Massachusetts, is below average. There are too few responses from the joint committee states to reach definitive conclusions about the effect of this variable on the influence of minority party members on committee decisions.

Table 2. Legislator Responses

“How much influence do minority party members have on [your most valued] committee’s decision?” (Scale of 1=None to 7=Considerable)

States N Average
Maine 65 5.2
Connecticut 36 4.3
Washington 35 4.1
50 States 1,620 3.6
Colorado 25 3.5
Massachusetts 32 3.4
Minnesota 52 3.3
Virginia 24 3.1
Iowa 42 3.0
Tennessee 34 3.0
Wisconsin 38 2.7

In a multiple regression analysis (Appendix III) of the effects of various institutional or individual characteristics of all 50 states on the perceived influence of minority party members in committee, the following independent variables were statistically significant. 

• Party | 99.9 percent confidence level: Democrats perceive minority party members as more influential than do Republicans.
• Professionalism | 99.9 percent confidence level: Lawmakers from states with part-time legislators and relatively low resources for the legislature perceive minority party members as more influential than do those in more full-time, high-resource legislatures.
• Money Committees | 99 percent confidence level: Legislators whose primary committee assignment is not an appropriations, budget or tax committee perceive minority party members as more influential than do those who serve on money committees. This is contrary to the interview findings in the discussion of the collegiality of budget committees in Colorado and Wisconsin above, but consistent with a notion that money committees may enforce more party discipline than do substantive policy committees.<
• Majority Status | 99 percent confidence level: Legislators who are in the minority party perceive themselves as more influential in committee than do majority party members.
• Term Limits | 99 percent confidence level: Legislators in states with term limits view minority party members as more influential than do those in non-term-limited states. This suggests that legislatures with less experienced members may not place as much emphasis on party discipline in committees.
• Divided Government | 95 percent confidence level: Legislators in states with divided government view minority party members as more influential than do those in states with unified government.

The views of women legislators regarding the influence of minority party members in committee did not differ significantly from those of men. 

Legislators in Massachusetts, Minnesota and Virginia talked about the importance of conference committees, especially if they are closed to the public, for final negotiations on bills. “Everything ends up going to conference,” said a Massachusetts senator. The conference committees do not meet in public, and their reports cannot be amended on the floor. Another veteran Bay State member said, “When you’re part of a conference committee, you can get things done.”

Conference committees were also particularly important in Minnesota, in part because they use a concurrent bill introduction system in which a bill is introduced in one chamber and a companion bill in the other. Committees and the chamber as a whole work on their own bills without waiting for the house of origin to act, and differences are negotiated in conference committees. Leaders in each chamber appoint the conference committee members and are under no obligation to appoint members who did not vote for the bill. As a result, Minnesota conference committees sometimes consist only of majority party members when the Legislature has unified control.

In Virginia, conference committees, usually consisting of the bill patron and two members each of the majority and minority parties, do not often meet in public. In fact, they may not meet at all. Differences are often worked out between key members in private, and the other members then sign on to the agreement.

In Wisconsin, conference committees have not been used to resolve differences between the two parties since the passage of Act 10, in large part because the state constitution requires open conference committees. Instead, agreements are worked out (or not) in leaders’ offices. “Conference committees are not useful because they are public,” said a sympathetic lobbyist. “It’s better to resolve things in private in the leaders’ offices.”

Personal Relationships, Culture and Traditions

Besides the formal rules and structures, legislators emphasized less formal and perhaps less tangible factors that encourage compromise and problem solving. These include interpersonal relationships, especially across parties, and cultures, attitudes and norms of behavior.

Colorado legislators in particular made a point about the importance of talking to members of the other party and building personal relationships. One majority party senator went to every member on the other side of the aisle and asked each to tell him about their interests, their hobbies and their families. Another member said, “You never know who could be your partner on a bill. There are new relationships and issues every year, so you can’t discount anyone.” A majority party leader and his minority counterpart made a pact early in their careers to cosponsor at least one bill each year. They continued this tradition when majority party control flipped. Their practice is facilitated in Colorado by a change in rules allowing “joint co-prime sponsors” of bills rather than requiring only single prime sponsors. Some credit this rule with encouraging more bipartisanship.

An Iowa legislator said, “I find the time to talk to colleagues from the other party at the large social receptions. I play racquetball and basketball with colleagues. It gives us the opportunity to talk about our families and interests.” While legislators in a number of states noted a decline in legislative socializing either due to ethics laws or general societal change, a Washington leader noted that members of the two parties still have dinner together and make connections with each other.

Another Iowa member emphasized the need to recognize that there are two sides to every issue and the importance of trying to understand the other side’s perspective. A Washington legislator talked about the importance of getting to know the range of issues that members hold on any issue, emphasizing that it’s not always far left vs. far right. “Once you understand how far you can maneuver to reach accommodation, the party labels fall off,” he said.

Several states have unusual seating arrangements on the floor of the chamber that members regard as promoting personal relationships and bipartisanship. In the Massachusetts and Connecticut senates, seating is in the round, so all members can see each other. A Connecticut senator described his chamber’s practice of seating members by district number, not by party, with the comment, “It may not change the way we vote, but it probably helps to increase civility and may help deflect partisanship a bit.” Tennessee legislators, who also have a form of “blended” seating on the floor, believe that this promotes relationships and collaboration between the parties. Seating in the Iowa General Assembly is chosen by seniority and causes members of the two parties to be interspersed. A knowledgeable Iowa observer said, “When members are sitting knee to knee on the floor with nowhere to hide, it makes a difference. You have to sit eye to eye and talk to each other, even after disagreements. It humanizes the process.”

Sharing common spaces and traveling together were also mentioned as ways of building relationships across parties. Most members of the Iowa legislature do not have their own offices, so they have to work at their desks on the floor alongside members of the other party when not in session. Many states take committees on tours to state facilities outside the capital city, and this, too, promotes personal relationships. In Colorado, interest groups sponsor trips around the state. One participant in a bipartisan group of 10 freshman members on such a trip reported that they got to know each other and their districts and leaned on the relationships they developed in the next legislative session.

Colorado has a growing number of informal, issue-oriented caucuses such as sportsmen, animal protection, or families and children. All are bipartisan and help to build relationships. The two top party leaders in the Massachusetts Senate take pride in having frequent “joint caucuses,” which are in effect study sessions for the members of both parties on major legislation.

We have previously mentioned a number of norms of behavior such as Tennessee’s culture of respect for senior members, Connecticut and Iowa’s reluctance to shut off debate, and Washington’s practice of making sure that minority party bills pass. 

We heard about other individual state attitudes or traditions like Connecticut’s sense of civility. For many decades, Virginians have taken pride in “the Virginia way,” which means rising above partisanship to do what is right for the state. Many worry that the Virginia way is slipping away as the willingness to reach across the aisle to solve problems is disappearing (one somewhat cynical staffer described it as “gone”). But it is still an important enough tradition in Richmond that members talk about it and believe that it influences their behavior.

When he became speaker of the Wisconsin Assembly in 2013 in the aftermath of the partisan blowup of Act 10 two years earlier, Robin Vos negotiated a memorandum of agreement with the minority regarding allocation of time on the floor. According to the terms of the agreement, the top leaders from both parties meet privately before every legislative session day to agree on time limits for debate. Members and leaders both say the agreement has worked well: The Assembly works on a tighter schedule, sessions end earlier, and members get to go home at a reasonable hour. This step reduced tensions with the minority and smoothed legislative operations—without changing the fact that the Republicans had an unassailable majority and didn’t need Democratic votes to get things done. 

There was one attitude that pervaded every state capitol we visited. It was usually expressed as, “We are not D.C.” The specter of congressional gridlock is such that it spurs states to attempt to act differently from Congress. “We’re here to get things done,” said a Maine leader in specific comparison to Congress. An Iowa senator took pride in his chamber by saying, “The Senate has a desire to do things differently from D.C. In 2013 and 2014 there was lots of cooperation. In 2013 we passed a property tax reform, health reform—there were many grand bargains made. One success led to the next success. We all felt good about not being like D.C.”

Special Roles: Women, Nonpartisan Staff and Narrow Majorities

The proportion of women legislators in our 10 states ranged from highs of 41 percent in Colorado and 33 percent in Minnesota and Washington, to lows of 17 percent in Virginia and 18 percent in Tennessee. The other five states clustered within a few points of the national average of 24 percent.
When we asked about the roles of women legislators we got two different points of view—from legislators of both genders and parties. One is that gender makes a difference. Advocates of this perspective say that women listen better, are more deliberative and collaborative, and are better at developing relationships. “We don’t get as caught up in posturing as the men,” said a Massachusetts Democratic woman committee chair. A Wisconsin Republican committee chair says that she thinks women are more committed to process and more rational and have longer-term perspectives than men.

The opposing view is that gender doesn’t make a difference. “They’re no different from men,” said a Massachusetts leader. “Some are aggressive and tough and some are collaborative and cooperative,” he continued. “I don’t think it’s possible to generalize about women legislators,” said a Wisconsin female leader. A liberal Massachusetts committee chair commented, “There appears to be a sisterhood among women legislators, but I don’t view gender as a significant issue in legislative performance.” We will return to differences between male and female legislators in the analysis of responses to the American Legislator Survey below.

Legislators in several states mentioned that nonpartisan staff are important in constraining partisanship and mitigating the effects of polarization. A Tennessee partisan staffer said that nonpartisan staff keep the institution on track and contribute to a sense of trust around data, analysis and key decision points. Connecticut and Minnesota legislators also commented on the high regard in which nonpartisan staff are held. In the term-limited Colorado legislature, legislators say the nonpartisan staff provide continuity and help them understand the big picture and the history of issues.
In a recent book, “Insecure Majorities: Congress and the Perpetual Campaign,” political scientist Frances Lee argues that at the national level, the closeness of the two parties and shifting control of the White House and Congress are what drive partisan conflict, impede cooperation and lead to stalemate. The state legislators in our 10 state sample had just the opposite point of view: They say close majorities mean more cooperation and collaboration.

A Democratic leader in Colorado said that the state’s “purple” proclivities and the narrow margins in the House and Senate mean that members of her party have to be more moderate and centrist. In Washington, where control of the Senate has switched often over 30 years, a leader said, “It’s easier to reach agreement when the majorities are slim, because you can’t always control everyone in your own caucus and you might need the other party’s support.” Elaborating on this point, a Washington state staffer said that the competitiveness of suburban districts means that the Democratic speaker in a House with a 51-47 margin sometimes has to let his members vote against his caucus and therefore needs votes from the other party.

An Iowa staff member observed that the slimmer the majority, the more you have to play nice. A Washington staffer thought that shifting majorities have a moderating effect because “You’re going to be in the minority at some point, so how do you want to be treated when that happens?” In a Virginia Senate with a narrow Republican majority, a Democrat said that the minority has significant input on bills “because we only have to pick off two or three Republicans.”

Underlying all of these various factors that mitigate the effects of political polarization is the idea of trust. It was either explicit or implicit in the discussion of rules and their fair and consistent application; the relationships between leaders and governors; the internal work of committees; the coordination between committees and leaders; traditions like the “no surprise” rule or not arbitrarily shutting off debate; and the role of nonpartisan staff. 

One more story that illustrates the importance of trust: An urban black legislator in Washington said that he asked to be put on the agriculture committee to learn about rural issues and work with members of the other party. This did not cost him anything in his district because the issues were not priorities for his constituents. But by working with colleagues in the other party on their bills, he felt as if he earned trust and the right to ask them for support on his bills.

Attitudes Toward Compromise and Coalition Building

In our interviews, legislators often told us that a willingness to compromise was key to getting things done, to making public policy. In the American Legislator Survey, we asked, “Do you think compromise is an essential part of the legislative process or is it selling out?” (Scale of 1=Essential to 7=Selling Out) On average legislators scored 2.4 on this scale, much closer to “essential” than to “selling out.” And legislators were much more favorable to compromise than the American people (Table 3). Because the questions were not exactly the same, extreme caution is necessary in interpreting the results from these three surveys, but the differences between the attitudes of the general public and those of legislators are so great as still to be noteworthy. Legislative life apparently teaches the value of compromise.

Table 3. Legislators’ Attitudes Toward Compromise Compared to the Public

Gallup Poll 2014: “Where would you rate yourself on a scale of 1 to 5, where 1 means it is more important for political leaders to compromise in order to get things done and 5 means it is more important to stick to their beliefs even if little gets done.”

Prolific Academic Survey (2015) of American citizens by John R. Hibbing and Elizabeth Theiss-Moore: “Do you agree or disagree with, ‘What people call compromise is really just selling out on one’s principles.’”

‡ NCSL American Legislator Survey 2014:  “Do you think compromise is an essential part of the legislative process or is it selling out?” (Scale of 1=Essential to 7=Selling out)

The responses to this question In the American Legislator Survey from the 10 states in this study (Table 4) are for the most part as we would expect, with Massachusetts, Minnesota and Virginia the most favorable to compromise and two of the unified government states, Tennessee and Connecticut, the least. The only surprise is Wisconsin in the middle of the pack, perhaps reflecting the reality that compromise is still necessary within a divided majority party, even when it has an overwhelming margin of control.

Table 4. Legislator Responses

“Do you think compromise is an essential part of the legislative process or is it selling out?” (Scale of 1=Essential to 7=Selling out)

States N Average
Massachusetts 38 1.9
Minnesota 56 2.1
Virginia 33 2.1
Maine 68 2.2
Wisconsin 42 2.3
50 States 1,812 2.3
Colorado 29 2.3
Iowa 43 2.4
Washington 39 2.5
Connecticut 40 2.6
Tennessee 35 2.6

A multiple regression analysis of the compromise question shows that the following factors are statistically significant in explaining legislators’ attitudes toward compromise:

• Party | 99.9 percent confidence level: The average score for Democrats was 1.9 and for Republicans 2.9. While the Republicans’ average score is significantly less favorable toward compromise, it is still much closer to “Essential” than it is to “Selling Out” on the 7-point scale.
• Polarization | 99 percent confidence level: Legislators in less polarized states on the Shor-McCarty scale view compromise more favorably than do those in more polarized states.
• Professionalism| 95 percent confidence level: Lawmakers from states with more full-time, high-resource legislatures view compromise as more essential than do those in part-time legislatures with relatively low resources.

Factors such as Divided Government, Majority Party Status, Term Limits and service on a Money Committee were not statistically significant. In an initial bivariate analysis of the effect of Gender on compromise, women legislators appeared to be much more favorable to compromise than men, but after controlling for political party (60 percent of women legislators are Democrats), the relationship washed out. This result supports the views of some of our interviewees that women legislators do not behave significantly differently from men.

Another survey question asked how much time legislators spend on each of seven activities (Table 5). In addition to spotlighting legislators’ focus on constituents and committee work, this table shows that legislators allocate more time to building coalitions within party than across party. This is particularly true for majority party members. Not surprisingly, though, minority party members devote more time to building coalitions across parties than within their own. This relationship holds after controlling for party.

Table 5. 50-State Legislator Responses

“How much time do you spend on each of the following activities?” (Scale of 1=Hardly any to 5=A great deal)

Legislators’ Activities Score
Keeping in touch with constituents: 4.1
Committee work: 4.1
Helping constituents with problems: 4.0
Building coalitions within party: 3.5
Making sure district gets money/projects: 3.2
Building coalitions across parties: 3.1
Campaigning/fundraising: 2.6

We also asked legislators how much attention they think their party leader should give to a series of activities, using the same five-point scale (Table 6). Focusing on the Keeping the Caucus United and Building Coalitions Across Parties responses, the same dynamic between majority and minority parties as in the previous question holds true: Minority party members want their leaders to focus attention on working across party (3.9) significantly more than majority party members do (3.4).

Table 6. 50-State Legislator Responses

“Please indicate how much attention you think your legislative party leader should give to:” (Scale of 1=Hardly any to 5=A great deal)

Leaders’ Priorities Score
Floor management: 4.1
Supporting and defending the institution: 4.0
Assisting members with legislative problems: 3.9
Keeping the caucus united on floor votes: 3.8
Building legislative coalitions across parties: 3.6

Factors that Exacerbate the Effects of Polarization

Just as leaders can play a crucial role in organizing and managing conflict and disagreement in the legislative process, they can also gum up the works by taking confrontational, ideological positions. A few governors have been particularly visible in taking “my way or the highway” roles. In the latter part of the last century, Minnesota’s maverick independent Governor Jesse Ventura was famous for his disrespect for the Legislature and his unwillingness to deal with it. More recently in the first year of Minnesota Democratic Governor Mark Dayton’s term in 2011, there was a government shutdown when he and the Republican-led Legislature took absolutist positions and were unable to reach accommodation on the state budget.

Maine Tea Party conservative Governor Paul LePage prided himself on his aggressive posture toward the Maine Legislature and his use of every tool available to combat it. A member of his administration said, “Governor LePage has a point of view regarding the Legislature that is not partisan. He views himself as a change agent. The Legislature is the establishment.” The governor disagreed with Democrats in the House and Republicans who controlled the Senate. In his first term he issued an unprecedented number of vetoes. But because the Legislature had already assembled a two-thirds majority to pass the budget (as previously described), the Legislature had the votes to override the budget vetoes and others as well. A split Legislature made its own deals and functioned without the governor.

In his first year in office, Wisconsin Governor Scott Walker took a very aggressive, no compromise position in favor of major cuts in government spending, restricting government employees’ collective bargaining rights and reducing their benefits. In his case, this absolutist position enabled major changes in state government because he had a unified Republican majority that supported him in the Legislature. He alienated Democrats, but there wasn’t much they could do about it.

In every state we heard complaints about the negative effects of the modern world of electronic communication on legislative policymaking. A Virginia leader summed it up as “the media intrudes into every orifice of the public body.” In this case, the media refers to the 24-hour news cycle fueled by non-traditional bloggers and reporters, social media and talk radio.

In the world of the instant news cycle, every question asked in a committee hearing, vote cast on an amendment or offhand comment overheard in the hallway may be blogged or tweeted. A Tennessee legislator said that this instant exposure quashes the members’ willingness to be candid, take risks or explore new ideas. A Virginia senator argued that the instant news cycle makes legislators think that they have to react to issues and problems quickly, which hardens political positions.

“The Internet leads to the spread of misinformation,” said a Virginia legislator. Another Virginian said, “Wackos are all the time contacting legislators electronically with all kinds of crazy shit and making themselves famous by complaining online when the legislature doesn’t do what they want.” 
A Wisconsin leader complained that the constant attention to news and social media by the members reduces the quality of deliberation: “Everyone is on their cell phones or computers. They make their own speeches or arguments, then go back to checking their smart phones. They don’t even listen to their own side’s arguments, much less the others’.” A Wisconsin Assembly member added that the problem is that legislators tend to believe that their friends on Facebook and Twitter are representative of the public and thereby lose perspective on the extent of disagreement among the public.

Highly partisan and opinionated talk radio is so influential in the southeastern corner of Wisconsin, home of many of the most conservative members, that some refer to the area as “radio-land.” In the 2016 legislative session, a bill to add one-half cent to the state sales tax to fund badly needed transportation infrastructure sailed through an Assembly committee with a unanimous vote. But then talk radio got hold of the issue and attacked it as an unacceptable tax increase. As a result of the radio hue and cry, conservative anti-tax legislators backed down from supporting the bill in caucus and blocked it from going to the floor. The bill was dead. “Things would be better around here if radios were removed from legislators’ cars,” quipped a Democrat.

Many legislators consider a decline in socializing among legislators of different parties as contributing to polarization. Some admit that this may be a response to societal changes in which people spend less time hanging out together (“bowling alone”). In Colorado, Minnesota, Tennessee and Wisconsin, they blame ethics restrictions for cutting down on evening receptions and dinners hosted by lobbyists. A Wisconsin legislator said that instead of four or five receptions a night as in the past, there are now only five or so a year. But a Colorado lawmaker commented, “You can still forge a good relationship if you pay for your own drink.”

A Wisconsin leader said that an unintended consequence of the memorandum of understanding that led to more predictable session schedules was that fewer legislators stayed in Madison at night. He estimates that only about one-third of the members stayed overnight in the capital. “Instead of pulling all-nighters and staying in town, they go home to their families.”

In our limited sample of two term-limited legislatures (Colorado and Maine) we heard that term limits inhibit members getting to know each other. “Why bother to reach across the aisle when you or they will be gone in a few years?” asked a Colorado legislator. Beyond this effect of term limits on personal relations, legislators in both states talked about the difficulty of managing the process with inexperienced leaders and the advantage of the executive branch in getting its way with inexperienced legislators. We did not uncover any consistent effects of term limits on policymaking due to polarization. 

Two practices in chambers with large majorities, use of the “Hastert rule” and caucusing in committees, come in for criticism from the minority. The Virginia House of Delegates and the Wisconsin Assembly in recent years have both imposed a rule that nothing moves to the floor unless a majority of the majority caucus supports the bill. Dissenting members within the caucus are then bound to the party position, thus ensuring its passage without minority input. While there is no doubt that this practice impedes inter-party negotiation and compromise and frustrates the minority, it ensures that the majority gets its way. It also means that negotiation occurs primarily within the majority party.

The houses in Iowa and Wisconsin have made increasing use of caucuses within committees in advance of votes. An Iowa staff member said, “About 15 years ago a House appropriations committee chair started the practice of caucusing within committees. It ended the airing out of everything publicly. The same practice spread to other committees. There is so much time spent in committee caucus. It doesn’t seem to be an open and deliberative process.” Another Iowa observer said that the preference for closed-door caucus discussion and the lack of public debate are due to a fear of “gotcha” politics. “Members know that whatever they say in public can be captured and tweeted.” 

Like the Hastert rule, caucusing in committee is a useful tool for the majority. However, to the extent that committees are a place where minority party members can influence outcomes, even when the other side has a large majority, it is a further restriction on minority party power.

Perspectives of Members of Congress Who Are Former State Legislators

We also interviewed 12 members of Congress who are former state legislators—plus a congressional staffer who had also worked in her state capitol—from our 10 case-study states. The interviewees included seven Republicans and six Democrats. Many of their perspectives on their state legislative experience are included in our previous comments about legislative policymaking, but we want to call out some of them here.

Most of the members of Congress said they believe that their state legislature performs better than Congress. But not all. One member of Congress who had been in the minority in her state legislature but in the majority in Congress thought that Congress worked better. The same was true of a member from a state that had experienced significant stalemates and one who had had to deal with ideological, uncompromising governors. Several of them pointed out that most bills in Congress pass with overwhelming support, just as state legislators reported.

When asked to compare their state legislative and congressional experiences, a few themes emerged from their comments. Compared to Congress, state legislatures or their members:

• Operate on a substantially smaller scale and with a more homogeneous polity. “There are 201 legislators in Minnesota compared to 535 in Congress; 5 million people compare to 300 million,” said one. “There’s a whole difference in magnitude between Virginia General Assembly and Congress,” said another.
• Are more collegial and less partisan. Members of Congress who had served both in the minority and majority in their state legislatures said that minority members were more effective there than in Congress. “In Tennessee I was friends with members from both parties. It’s hard to make friends across parties in Congress except when we go on international trips together,” was one of several comments about how “congressional delegations” (also known as CODELS) are one of the only ways to get to know members of Congress from the other party. Members also said that the leaders in their state legislatures were more collegial across party and chamber than congressional leaders.
• Have more genuine debate on the floor and in committee. “The art of debate mattered in my Legislature,” said a former Maine leader. Speaking of his experience in Colorado, another member of Congress commented, “We were on the floor together and had real debates, not one-minute speeches.” A Virginian said, “Our debates in Congress are not real. It’s a loss.”
• Have governors who are more involved in the state legislative process than the president is in Congress.
• Use earmarks as a tool to get compromise and bridge gaps on the budget. 
• Are lower profile and face fewer demands, especially for campaign fundraising. “There’s much more demand for my time and attention in Congress,” said a freshman member from Washington. “I didn’t have to sit on the phone all the time to raise money in St. Paul,” said a congressional veteran.

We also asked the members of Congress what practices from their state legislative experience they would like to see adopted by Congress. Following are some noteworthy responses:

One member of Congress said that he would like to see Congress give every bill a hearing and a vote. Another version of this from a different representative was to give every member the right to get a vote on a bill without having a formal requirement of a vote. 

A former state house majority leader said he thought that Congress should act promptly, both in committee and on the floor, on bills before them. He added that members of Congress should be expected to stay on the floor until their business is done. “Forcing members to stay in session is a better way of controlling amendments than having the rules committee block them,” he said.

Several said that Congress should conduct open debates on issues. “What would be the harm?” asked a former state senate majority leader.

A Republican House member said that she thought there would be greater trust in Congress if it devoted institutional resources to building personal relationships across parties. A freshman representative said that his class has held periodic bipartisan meetings and that this practice needs to be adopted and expanded by other subgroups in the Congress.

Regarding budgets and appropriations, almost all members of Congress suggested reinstating earmarks as a tool of negotiation and compromise. Republican members, though not Democrats, said that they thought a federal balanced budget requirement would force Congress to act in a more timely and effective manner on the budget. One member also suggested that Congress get rid of its separate budget and appropriations processes.

Our small sample size of 12 members of Congress did not allow us to draw hard conclusions about practices that might help that institution improve policymaking in the face of polarization. However, the comments offered by congressmen who have served in state legislatures suggested that they are a rich source of ideas for strengthening the institution. Their perspectives also reinforce key themes we gleaned from our 10 case study states.