Why state legislatures don't work (and how to fix them)

Why state legislatures don't work (and how to fix them)

We need better media coverage, but also better electoral systems

Milan Singh

This piece is written by Milan the Intern, not the usual Matt-post.

In polls, fewer than 20% of Americans can even name their state legislators. And even among those who do, many don’t know exactly what issues are being debated nor what kind of bills are being passed at their local statehouse (cards on the table, I don’t either).

Yet every now and then, statehouse politics break into the spotlight. Sometimes, this happens when somebody gets caught doing something bad. Most recently, Ohio Speaker Larry Householder and longtime Illinois Speaker Mike Madigan were forced out of office after being caught up in corruption scandals involving utility companies.

The other kind of story you hear is something like this anecdote from a Boston Magazine profile of former Massachusetts House Speaker Bob DeLeo:

After nearly six hours of voting, a member of the Democratic leadership announced that there would be three minutes for members to cast their ballots on an amendment that had just been presented. As the din of conversation filled the chamber, a red light signifying a nay vote came alive beside DeLeo’s name on the giant scoreboard that hangs in the front chamber, displaying how each representative votes for all to see. Immediately after his vote was recorded, the board lit up like a Christmas tree as red lights appeared next to the names of 63 Democratic members.

Moments later, though, a small-scale kerfuffle erupted after the proceedings’ presiding House member, who had registered DeLeo’s no vote, realized he’d made an error and it should have been a yes. “It’s a yes? Switch ’em, yes, yes, yes, yes,” the presiding member said, not realizing his instructions were being caught on an open mike.

DeLeo’s light quickly switched from red to green—and within seconds, so, too, did the lights of all 63 members who moments before had voted no. So much for understanding the content of the amendment or voting with their conscience. Instead, here were more than five dozen Democratic members following their leader, this way and that, as if guided by remote control.

Which brings us to the question: why do state legislatures seem to tend toward corruption and autocratic leadership?

(Getty Images)

Nobody pays attention to state legislatures

The grubbiness of state legislatures and the obscurity of state legislators are closely related. In a 2017 paper, Yale Law professor (and Slow Boring contributor) David Schleicher finds that state legislative elections are “second-order,” meaning that people are casting their ballots based on their views of the national parties rather than their opinions on the individual candidates. In contrast, elections for governor are less second-order — i.e., people pay more attention to them — allowing Republicans like Charlie Baker and Democrats like Andy Beshear to win in states that are usually hostile to their parties.

The other key fact is that state legislatures have varying levels of professionalism. Some, like Massachusetts’, work year-round and pay legislators $70,000/year, while others like Texas’ pay $7,200/year plus a per diem when the legislature is in session, which is every other year. Different legislatures also offer different career opportunities; some of them provide members with a good chance to reach higher office (e.g., Marco Rubio and Barack Obama going from the statehouse to the U.S. Senate), others provide long-term careers within the legislature, and some provide little opportunity for advancement and low pay. This affects who runs — a more professional body will attract more ambitious and higher-quality candidates, while a lower-paying one is likely to attract a lower-quality and more ideological candidate pool.

A 2001 study by Robert Clucas categorized state legislatures into three buckets: career legislatures, springboard legislatures, and dead-end legislatures. Clucas divided up all 50 legislatures based on their career advancement opportunities using a metric based on a 1988 study by Peverill Squire, then assigned the top third of states with the greatest career advancement opportunities to the “springboard” category. Of the other legislatures, Clucas assigns those with salaries above the per capita incomes in their states in 1995 to the “career” category, since they provide above-average job prospects for legislators. The remaining legislatures — with below-average salaries and little opportunity for advancement — were categorized as “dead-end” legislatures.

Nebraska is excluded because it has a unicameral legislature, and one of the metrics used for the career opportunity score is the chance for members of the lower house to make the jump to the upper house.

What Cluclas found is that the more professional career legislatures (those that run full time and pay well but don’t have too much opportunity for advancement, leaving members to focus on legislating as a full-time job) had stronger leaders, as members delegated power in order to streamline the achievement of partisan goals. Springboard legislatures’ members kept power to themselves to fuel their individual political ambitions, while dead-end legislatures often lacked experienced, long-serving members with the clout to keep their caucuses in line, as many people serve a few terms and then resign.

The study also found that competitive electoral environments create strong leaders, as legislators delegate power in order to ensure mutual survival — because partisanship is the most important factor in state legislative races, everyone is in the same boat. Indeed, Wu & Williams (2015) find that in New York, leadership often directs earmarks to the districts of frontline members.

But larger majorities also breed powerful leaders, according to a 2007 follow-up study by Clucas. Say you’re a Democrat on Beacon Hill — there’s very little incentive to break with your party and vote with the Republicans to defeat a bill, simply because there are so few of them that your vote is very unlikely to change the outcome. But it’s almost guaranteed to earn you the ire of the speaker, who can retaliate by blocking your bills, stripping you of your committee posts, or denying you campaign funds. Play nice and you’ll be rewarded; cross leadership and be punished.

But what do legislative leaders actually do with all this power?

With great power comes great responsibility

In the follow-up study, Clucas also created an index of speaker power based on member perception of the influence of majority-party leadership. Notice that Illinois, Massachusetts, and New York stand out as having strong leaders.

The South is not included in this index due to its history of lacking formal party leadership in state legislatures, despite having a reputation for strong speakers. Nebraska is excluded because it has a unicameral and nominally nonpartisan legislature.

In Massachusetts, the speaker has so much power over which bills pass the House that Progressive Mass, a left-wing advocacy group, uses the percentage of instances a given representative votes with the speaker as the baseline for their legislator scorecard formula. In New York, the state government is effectively run by “three men in a room” — the governor, the Assembly speaker, and the Senate majority leader — who hash out most policy issues behind closed doors and then present them to the caucus for an up-or-down vote.

Some leaders end up using their powers to dole out jobs to friends and family — Mike Madigan and former Illinois Senate President Emil Jones did this a lot — or to carry water for other special interests. In Virginia, Senate Majority Leader Dick Saslaw helped ensure that Dominion Energy, the state’s largest utility company and his biggest donor, got favorable treatment in an energy bill. New Jersey Senate President Stephen Sweeney has helped pass billions in tax cuts for the businesses of George Norcross, a major political power broker in the state. Of course, one of the main things leaders do is protect their caucus. In Jersey this is done through the “county line,” a primary ballot design trick that places all of the candidates endorsed by party bosses under the same column, regardless of office, while other candidates are relegated to the edges of the paper.

Monmouth 4th District Dem Primary Ballot

The more common way to do this is redistricting. Mike Madigan was legendary in this regard. In 2011, he oversaw redistricting, producing a brutal gerrymander of Illinois’ congressional maps that drew nearly all of the state’s incumbent Republicans into districts with other incumbents while creating 11 Democratic seats. This isn’t to say that Madigan wasn’t above cruder methods; one of his primary opponents ended up getting her tires slashed, and someone who ran against his preferred candidate in a statehouse race ended up taking a staple to the forehead.

We’re in a redistricting year, so plenty of state legislative leaders are working to give their party an advantage in Congress. But many of them are also working to pass versions of their party’s national policy agendas. For example, Texas has passed a near-total abortion ban and made it legal to carry a concealed firearm without a permit, while Illinois has passed an ambitious climate bill and Virginia legalized weed.

The Real Governor of Illinois

In essence, the structure of state government makes majority party caucus leaders extremely important — even more so than in Congress.

A strong and stable majority discourages defections, while a competitive political environment leads to circling the wagons around the leader. The New York Times and Fox News might cover the latest drama involving Joe Manchin and AOC with regards to the infrastructure and reconciliation packages, but no one really covered the sausage-making process for Massachusetts’ recent climate bill. And because nobody pays much attention to this stuff, speakers and Senate presidents can get away with doling out patronage jobs to friends and family or handing out taxpayer money to special interests with little accountability.

Realistically, we’re not going to get a large number of people to pay close attention to the daily comings and goings at their local state capitol. Political junkies might be more inclined to follow this stuff, but most regular people have work and family and everything else going on and don’t want to spend their limited free time reading up on what the Vermont Progressive Party is pushing for this session. This is especially challenging because the internet has generated significant nationalization of media and shrinkage of most state and local newsrooms.

Refocusing what locally focused media remains more squarely on legislative leaders could help somewhat.

One of the problems Bruce Rauner dealt with when he was governor of Illinois was that Mike Madigan (called the “Real Governor of Illinois” by Chicago Magazine) was working hard to block his agenda in Springfield. Naturally, Rauner got frustrated by this and eventually quipped that he was “not in charge” during a press conference, which ended up being used by J.B. Pritzker in an attack ad. That remark probably wasn’t smart politics on Rauner’s part, but he hit on something good during his battle with the legislature and his re-election campaign: he made sure everyone knew who Mike Madigan was. Rauner painted his Democratic opponents as puppets of the speaker, attacking Madigan as corrupt and out of touch, albeit unsuccessfully (he lost to Pritzker by nearly 16 points).

If leadership is inevitably going to control the legislature, the media ought to cover them as such. Instead of focusing all coverage related to state policy on the governor’s agenda, they should also cover what the senate president wants to get done this year (and who they are). Essentially, the media should cover Robin Vos and Angela Stewart-Cousins the way they cover Nancy Pelosi and Mitch McConnell — as real parts of the state’s governing triumvirate rather than afterthoughts.

Better redistricting rules can help

The second thing we should do is make legislatures more representative of the will of the voters. Because we know that people are voting more for their preferred parties than for individual candidates, we ought to more closely align the popular vote for the parties with their share of seats. There are some egregiously gerrymandered legislatures out there — the prime example being Wisconsin — where the majority party controls a lot of seats even though they got creamed in the popular vote. At the minimum, states or Congress should pass laws taking redistricting out of the hands of politicians and instead empowering independent commissions to draw the maps with partisan proportionality as the primary criteria (e.g., a party that earns 45% of the vote should get as close to 45/100 seats as possible).

This is inherently kind of difficult to do with single-member districts due to the phenomenon of “wasted votes” that run up a party’s winning margin in a district but don’t actually translate into more seats, so in an ideal world, legislatures would move to some kind of proportional representation, both involving electing multiple members per district.

You could use a single-transferrable vote system (like they do in Ireland) or go for a mixed-member proportional model (like they do in Germany), but the upshot of either method for achieving proportional representation is the same. Majorities would become slimmer, so on the margin, there might be some incentive for individual legislators to break with leadership more. But elections would also be focused more on the parties as opposed to the individual candidates, aligning the electoral system with the way most people already vote for their state legislatures, and incentivizing partisans to stick together. Most importantly, proportional representation opens the doors for third parties to run and win without being spoilers — most places with proportional representation have more than two parties — allowing local interests that are currently shut out to gain a voice.

Maybe a pro-secession party would win seats in rural Oregon on a platform of joining with Idaho, or a Green Party focused on climate and environmental issues could be elected in California. In states without meaningful two-party competition, proportional representation could foster competitive elections. The DSA might start a socialist party in Albany, or maybe miners in West Virginia create a socially conservative but union-friendly labor party.

Negotiations over policy and committees and the like would mostly be hashed out between party leaders seeking to assemble a majority coalition, as they are in countries like Germany. But this is already what happens behind closed doors in the status quo, and with a media spotlight on party leaders, we would get more accountable politics.

To be clear, while proportional representation would be ideal, I consider it more of a long-term project than a reform one would realistically expect to pass soon; the primary goal in the near term should be reorienting media coverage and enacting tough anti-gerrymandering laws under the single-member district framework.

Either way, with an updated electoral system and media environment, voters get more options at the ballot box and can better understand who actually runs their state government, instead of the current system where party bosses are empowered merely on the basis of general partisan considerations that have nothing to do with what actually happens in state government.