Planning for a disruption in the operation of state government, and legislatures in particular, has been on the minds of the legislative bodies since the 1950s, during the height of the Cold War, and, in some cases, was provided for in state constitutions even earlier. Providing the legislature with methods to continue to work, or return to work, during an emergency is an important goal.
The threats to a legislature’s ability to function may be as complex as an enemy attack or as seemingly mundane as the flu. In fact, pandemic flu is one of many catastrophic events that could affect state legislatures.
NCSL has compiled information for legislatures to consider in developing or reviewing a continuity of government plan.
Examine State Constitution, Statutes and Chamber Rules
A good starting point is to examine the state constitution for provisions that may help in designing a continuity of government plan as well as identifying provisions that could derail these efforts.
What to look for:
A continuity of government (COG) authorization.
Determine under what circumstances your COG authorization applies. Many emergency actions only occur “in case of enemy attack.”
Determine whether the seat of government can be changed and under what circumstances.
Determine whether quorum requirements can be changed or suspended.
Determine whether legislative sessions are required to be open.
Determine whether the legislature may meet remotely.
Continuity of Government Authorization
Continuity of government encompasses many aspects of the legislative process, from the way the legislature is convened in an emergency, to lines of succession for public offices, and the location where the session will be held. The authority to do many of these things resides in a state’s constitution. While many constitutional provisions tie the trigger for these powers to an enemy attack, a few have broadened the definition to include other emergencies.
In 2019, for example, Washington voters approved a constitutional amendment to expand continuity of government authorization beyond “enemy attack.” The amendment added “catastrophic incidents” to the specified periods of emergency.
Another example is a joint rule adopted by the Colorado General Assembly, which sets out procedure during a declared disaster emergency.
There are two main types of legislative sessions—regular and special (sometimes known as extraordinary). A regular session is the annual or biennial gathering of legislators, the starting date (and often, the length) of which is set by constitution or statute.
Unlike regular sessions, there is no specific timing for special sessions. They occur intermittently to deal with specific issues or topics. Usually, the scope of a special session—that is, the topics that may be taken up—is limited to the issues specified in the notice calling for the special session. Legislatures may be called into special session during an emergency.
In 36 states, the governor and the legislature have the ability to convene a special session. In the remaining 14 states, however, only the governor has that authority.
Due to the COVID-19 emergency, many legislatures suspended, postponed or temporarily adjourned their sessions. Others have met in special sessions. NCSL is tracking those actions here.
Emergency Interim Successors or Lines of Succession
Most emergency interim succession acts were enacted during the Cold War period between 1959 to 1963 as a result of increased tensions between the U.S. and the Soviet Union. During this time, state legislatures enacted laws to provide emergency successors (replacements) for legislators in the event an enemy attack occurred. Today, these acts have the potential for use with other emergencies, i.e., during a natural disaster or pandemic.
At least 12 states have a provision in constitution or statute for legislative emergency interim successors. Several other states have constitutional provisions for emergency interim successors for public offices.
Temporary Suspension or Modification of Quorum in an Emergency
“Quorum” is defined as the number of members of a deliberative body that must be present in order to transact business and to make its acts valid. Most often, that number is a majority of the membership. In four legislatures, there is a supermajority requirement. At least 13 states can change or suspend quorum requirements in an emergency.
In normal circumstances, legislatures typically operate under a “you must be present” rule—that is, legislators must be physically present in committee or on the chamber floor to participate in debate or voting. The rationale for this rule centers on the integrity of the legislative process. Requiring members’ physical presence creates a comfort level that procedures can more easily be controlled and the public can witness debate and voting. State legislatures, however, more often allow the use of technology to facilitate public input into committee meetings.
In two states—Oregon and Wisconsin—specific provisions allowing the remote or virtual meeting of the legislature if emergencies exist.
In 2012, Oregon voters approved a constitutional amendment relating to catastrophic disaster. The amendment defined catastrophic disaster and grants additional powers to the governor and legislature. The approved amendment is set forth in Article 10-A of the Oregon Constitution. The language authorizing participation in session by electronic or other means is in Section 5.
Wisconsin’s constitutional provision on continuity of civil government (Article 4, Section 34) allows the legislature to “adopt such other measures that may be necessary and proper for attaining the objectives of this section.” Statute 13.42 was enacted under this authorization. The statute allows virtual meetings of the legislature and legislative committees when an emergency (or imminent threat of one) exists.
From March through July 2020, legislatures or chambers in at least 24 states, the District of Columbia, Guam and the Virgin Islands changed their procedures to allow for remote participation or voting in floor sessions or committee meetings. (Other states' chamber rules or statutes may have already authorized remote committee meetings.) In most, if not all cases, these changes are temporary or tied specifically to the COVID-19 emergency. They are:
Information Technology, Facilities and Operations,and Staffing
In addition to the constitutional provisions, statutes, and chamber rules that help facilitate the legislative process during an emergency, COG plans also may include other aspects of legislative operations. The following are three examples.
Information Technology. Information technology (IT) is the backbone of an organization, and planning for a disruption in operations is vital. As you consider what will be included in your continuity of government plan, it is important to remember that without IT capabilities in the event of an emergency, the plan likely cannot be carried out. For example, as noted above, some legislatures have provisions that allow them to meet virtually. In light of the COVID-19 crisis, legislatures are quickly adapting to these changing circumstances and using web-based virtual meeting tools or teleconferencing for remote meetings. They are continuing to live-stream proceedings to facilitate virtual participation in the process. In addition, IT staff are supporting legislative staff and legislators as they continue to work from home.
Facilities and Operations. The state capitol is the “people’s building” and is the physical face of state government. Keeping the physical building open and operating can be a big challenge, especially in the event of an emergency.
Staffing. Legislative staff are integral to the functioning of state legislatures. They process legislation, conduct research, develop budget analyses, provide constituent support and a variety of other tasks.