on the edge 2017 4 state legislatures short takes on ncsl news ncsl epertise “federal law...

June 2017

H O W M U C H D O Y O U K N O W A B O U T S M A L L M O D U L A R N U C L E A R R E A C T O R S ? P A G E 7

Behind in Child

Support,

Behind Bars

Guided by

the Evidence

The Dirty Pool

of Catfishing

On the EdgeStates face a crisis

if retirees go broke.

JUNE 2017 2 STATE LEGISLATURES

Electricity truly is the energy that powers our way of life. It runs our homes and businesses and makes innovation possible.

The electric power industry supports more than 7 million American jobs and contributes $880 billion—or 5 percent—to our nation’s GDP. EEI’s member companies make significant investments each year to build smarter energy infrastructure and to transition to even cleaner generation sources. Today, almost one-third of our energy mix comes from zero-emissions sources—nuclear energy and renewables, such as hydropower, wind, and solar. The energy grid will continue to deliver safe, reliable, affordable, and increasingly clean energy and will integrate a wide range of technologies that will benefit customers well into the future.

Together, we are delivering America’s energy future.

To learn more, visit www.eei.org/future

Delivering America’s Energy Future

© 2017 by the Edison Electric Institute. All rights reserved.

STATE LEGISLATURES 3 JUNE 2017

JUNE 2017 VOL. 43 NO. 6 | CONTENTSA National Conference of State Legislatures Publication

Executive DirectorWilliam T. Pound

Director of CommunicationsKaren Hansen

EditorJulie Lays

Assistant EditorKevin Frazzini

Contributing EditorJane Carroll Andrade

Online MagazineEd SmithMark Wolf

Advertising Sales ManagerLeAnn Hoff (303) [email protected]

ContributorsMichelle ExstromKarmen HansonMartha KingAlison LawrenceMeghan McCannDan SheaRich Williams

Art DirectorBruce Holdeman

NCSL PresidentSenator Daniel T. BlueNorth Carolina

NCSL Staff ChairRaúl E. BurciagaDirector, Legislative Council ServiceNew Mexico

Denver Office7700 East First PlaceDenver, Colorado 80230(303) 364-7700

Washington, D.C., Office444 N. Capitol St. N.W., Suite 515Washington, D.C. 20001(202) 624-5400

State Legislatures (ISSN 0147-0641) is published 10 times a year by the National Conference of State Legislatures. ©2017, All rights reserved. Reproduction in whole or in part without permission is prohibited. Requests for permission to reprint may be emailed to Julie Lays at: [email protected]. Opinions expressed in this magazine do not necessarily reflect NCSL policy. State Legislatures is indexed in the PAIS Bulletin and Expanded Academic Index. Annual subscription rates: U.S.—$49; foreign—$55; teachers—$25 (promo code SLMTEA). Single copy: $6.50. Periodically, NCSL rents mailing labels to other organizations. If you prefer your name not be included please send a written request.

Postmaster: Send address changes to: State Legislatures magazine, 7700 East First Place, Denver, CO 80230.

NCSL’s national magazine of policy and politics

FEATURES

(UN)READY FOR RETIREMENT Page 10BY ANNA PETRINI

States face a costly future if their citizens fail to save enough for

retirement.

BEHIND BARS, BEHIND IN PAYMENTS Page 20BY JANE HOBACK

For parents in prison, unpaid child support bills can become a

crushing debt.

FACTS BEFORE FUNDING Page 26BY ALLISON HILTZ

Evidence-based policymaking can arm lawmakers with

information about what works.

NEW MEXICO’S VETO WAR Page 29BY DAN MCKAY

The battle over the budget reaches new heights in the Land of

Enchantment.

DEPARTMENTS

SHORT TAKES PAGE 4Connections, support, expertise and

ideas from NCSL

STATESTATS PAGE 6Understanding the basics of Medicaid

TRENDS PAGE 7The latest on small-scale nuclear

reactors, cyberbullies called catfish,

aging at home, the connection

between health and education, and the

war on opioid addiction

STATELINE PAGE 18From George Washington’s distillery to

sunscreen in schools and more

NEWSMAKERS PAGE 24A look at who’s making news under the

domes

OPINION PAGE 30Some thoughts on Supreme Court Justice

Neil Gorsuch’s contentious confirmation

process

THE FINAL WORD PAGE 31Hawaii House Speaker Emeritus JOSEPH SOUKI

“Listen first and then ask questions …

compromise at times if need be.”

SL ONLINEYou can find more information and links to

resources on topics covered in these pages

at SL Online.

Go to ncsl.org/magazine

©2

017

BR

UC

E H

OLD

EM

AN


SHORT TAKES ON NCSL NEWS

NCSL EXPERTISE

“Federal law pre-empts state law, but sometimes it creates a floor instead of a ceiling for actions that can be taken by the

states.”Rachel Morgan on how New York’s ban on higher health insurance premiums for older residents does not conflict with federal law, which caps age-based premiums, on PolitiFact.com.

“It seems to be an organic rising. It’s not like there’s somebody behind the scenes pushing this legislation.”

Jon Griffin on growing state efforts to regulate protests, in the Indiana Lawyer.

“They’ve allowed people to take some action to protect their information.”Pam Greenberg on the increasing number

of state laws requiring businesses and the government to notify people of security breaches that could compromise their privacy, on CBSNews.com.

“It’s definitely picked up the last few years, both on the ballot measure and legislatively.” Jackson Brainerd on

efforts to increase the minimum wage, in Bloomberg BNA.

“It’s a living and breathing document.”Brenda Erickson on how it’s not uncommon to amend state constitutions, on KUNM.

Pennsylvania’s proposal is “a good first step.” Ben Husch on a comprehensive bill to regulate the testing of autonomous vehicles,

on TRIBLive.com.

SUPPORTThe Women’s Legislative NetworkAmerica’s female legislators are trailblazers and visionaries, experts, mentors, Democrats and Republicans, solution-seekers and problem-solvers. And all of them are automatically members of NCSL’s Women’s Legislative Network—the bipartisan organization that helps women connect, learn and lead together. Join them at the Legislative Summit in Boston in August. The network is planning dynamic sessions on STEM education and communication skills. Visit ncsl.org/wln to learn more.

From left, Tennessee Representative Brenda Gilmore; Katie Ziegler, NCSL liaison to the Network; and South

Dakota Representative Kristin Conzet

IDEASNuclear KnowledgeNCSL staff travel to states to offer expert testimony and other assistance more than 80 times a year. In May, NCSL’s Dan Shea and Kristy Hartman testified before the newly created Pennsylvania Nuclear Energy Caucus—the nation’s first bipartisan, bicameral caucus focused on nuclear issues. They presented information on nuclear power trends in the U.S. and fielded questions about what states are doing to prevent nuclear power plants from closing.

Pennsylvania Representative Becky Corbin discusses nuclear power with NCSL staffer Dan Shea.

Caring for Foster YouthMaryland Delegate C.T. Wilson—a former foster care youth—helped

host Foster Youth Day in Annapolis, Maryland, to teach the kids about the

legislative process. NCSL’s Meghan McCann and Nina Williams-Mbengue

were on hand to engage lawmakers on issues affecting older youth in foster

care. Check out NCSL’s Extending Foster Care Policy Toolkit at ncsl.org/

magazine.

From left, McCann and Williams-Mbengue, Delegates Vanessa Atterbeary

and Wilson, and, in front, Joy Jones, Wilson’s chief of staff.


SHORT TAKES

CONNECTIONSIntercontinental CollaborationA delegation from the Conference of State Legislatures of Nigeria visited NCSL’s Denver headquarters in March to explore whether NCSL could be a model for an effective member organization for the 36 states in Nigeria. The group formed last year to “ensure the independence, quality, effectiveness and engender unity of purpose among the 36 State Houses of Assembly in Nigeria.” The delegation heard from more than a dozen staff on NCSL’s history, mission, structure, budget, communications and constituent services. The group also visited the Colorado General Assembly. NCSL has assisted various countries striving to establish democracies through grants from the U.S. State Department.

Blurred State Lines Assembly Speaker Vincent

Prieto welcomed Illinois Senator Toi Hutchinson,

NCSL’s vice president, to the New Jersey Capitol in March.

They discussed the value of collaborating through

NCSL and the importance of bipartisanship. NCSL’s

leadership alternates between parties every year.

Networking in New EnglandNCSL has a wealth of information and resources for state legislatures along witih a state liaison or two for every state to tell members all about the organization. Find out who your personal contact to NCSL is by searching for state liaisons at ncsl.org.

Connecticut Senate President Pro Tem Martin Looney, left, shows off NCSL’s folder full of resources for state legislators and staff during a visit by NCSL’s liaison to the Constitution State, Mick Bullock.

NCSL’s Center for Ethics in Government As many lawmakers quickly discover, very few ethical questions have clear and easy answers. Turn to NCSL’s Center for Ethics in Government for answers to your legislative ethics questions. From in-person ethics training to easy-to-access, robust online resources, including 50-state data, we can help you tackle topics such as financial disclosure requirements, conflicts of interest, gifts and honoraria, revolving-door laws, ethics oversight entities and more. Visit ncsl.org/research/ethics.

Mark Quiner and Ethan Wilson are NCSL’s

ethics experts.

Trending TopicsKnowing how other states tackle tough issues can save states time and money. The NCSL transportation team’s Traffic Safety Trends report is one example of the thousands of NCSL reports, web documents, webinars and other resources to help you in your job. Visit ncsl.org and click on the Research tab to find what you need.

Transportation | MAR 2017

Traffic Safety TrendsState Legislative Action2016

Colorado Senate President Kevin Grantham dons a traditional Nigerian shirt during a visit with members of the Conference of State Legislatures of Nigeria.


STATESTATS

Understanding Medicaid

Medicaid, the nation’s public health insurance for low-income Americans, has undergone many changes in its 50-year history, and

as discussions on health reform continue, it’s sure to see more.

State lawmakers are charged with making the decisions on how to improve this state-federal program, whether to expand it, how to contain costs and more. For new lawmakers unfamiliar with health policy, learning the basics is the first step toward making informed decisions about this complex program. Here are some of the basics. Even though state Medicaid programs receive almost half of all federal funding given to states, the program still consumes a large share of state budgets. In 2016, Medicaid accounted for an average of 16.8 percent of all state general fund expenditures, and 29 percent when counting federal funds. One reason costs are high is that Medicaid covers people with complex health-care needs, such as several chronic conditions or serious disabilities, and it pays for high-cost services, such as long-term care. Even though people with disabilities and the elderly comprise just 24 percent of the Medicaid population, they account for 63 percent of all Medicaid costs. Medicaid is an entitlement program because certain groups, often called the “categorically eligible,” automatically qualify for Medicaid services, as long as they are U.S. citizens and legal residents of the state. These groups include low-income infants, children, pregnant women and people with disabilities. States also must cover low-income seniors, some of whom are “dual eligibles” because they also qualify for Medicare, the federal health plan for seniors. With significant initial financial help from the federal government under the Affordable Care Act, states could expand their Medicaid programs. Thirty-one states and the District of Columbia did so, six of them after receiving waivers from the federal government that granted them more flexiblity to innovate and test new ways of providing health care. Want to know more? A new NCSL Medicaid Primer lays out the basic building blocks for legislators new to health policy. It is available at www.ncsl.org.

—Lisa Waugh

RI DC PR VI GU MP AS

Has not expanded Has a waiver to expand Has expanded

Medicaid Expansion

Source:NCSL, May 1, 2017

Total State General Fund Expenditures, FY 2016

Source: National Association of State Budget Officers, estimated averages for FY 2016

K-12 24.7%

Medicaid 16.8%

All Others 32.4%

Higher Education 13.4%

Transportation 7.5%

Corrections 4.4%

Public Assistance 0.9%

Portion of Total Costs

Disabled15%

Elderly 9%

Adults27%

Children48%

Disabled42%

Elderly21%

Adults15%

Children21%

Children Adults Eldery Disabled Average Annual Spending Per Person

$3,247$2,463

$16,643

$15,249

Medicaid SpendingMedicaid covers health expenses for 69 million low-income Americans at a

cost of $397.6 billion a year.

Portion of Total Enrollees

Source: Kaiser Family Foundation, FY 2011 data


TRENDS

Nuclear Power on a Small Scale

Corrections 4.4%

In the power sector, scale has always been king. The business model that underpinned large-scale power plants made sense. The economics were as

fixed as the physics. But there are some who are now calling that prevailing wisdom into question—particularly when it comes to nuclear power.

A variety of companies are developing a new type of nuclear reactor known as small modular reactors, or SMRs. In some ways, these companies are turn-ing the old way of thinking on its head, proposing to build nuclear reactors that are a fraction of the size of traditional ones. In other ways, they’re taking a page out of Henry Ford’s playbook, assuming that centralized production of many small reactors will lead to greater efficiencies and cost-savings than the unwieldy process of constructing large, individual projects on site.

If the current environment is any indi-cation, they may be onto something.

There are four new nuclear reactors under construction in Georgia and South Carolina. However, the future of these projects hangs in the balance as the main contractor, Westinghouse Electric Co., filed for bankruptcy protection in March. Its parent company, Toshiba Corp., reported a $6.3 billion loss due primarily to significant cost-overruns and delays at these projects.

To some, this shows that nuclear power is no longer viable. To others, it indicates that the future of nuclear power will be small—and modular.

Recently, the Nuclear Regulatory Commission accepted an application for the first SMR from NuScale Power. Once approved, NuScale will be able to begin construction of its first power plant, which is expected to be located at the Idaho National Laboratory. The plant would have 12 identical reactors, each of which produce 50 megawatts of electricity. By compar-ison, many nuclear reactors in the U.S. generate close to 1,000 MW or more.

NuScale says its first plant could be operational by 2026, and it has continued to identify additional sites for future power plants.

But NuScale isn’t alone. Terrestrial Energy says it plans to

submit a design by 2019, and a handful of other companies aren’t far behind, with a combination of federal and pri-vate funding fueling the development. While each design is innovative and unique, all incorporate “passive safety” features, meaning that the plants can shut down safely without power and without operator action: reactors that are impervious to meltdowns.

Beyond the technological improve-ments, small modular reactors would require less upfront investment funding and are projected to be more cost-com-petitive than large reactor projects. Their components are small enough to ship less expensively and assemble more easily. Proponents also note their adapt-ability: They could be placed in sites that lack the infrastructure to support larger nuclear reactors, and for ener-gy-intensive tasks like powering a water desalinization plant.

Critics, however, question their safety and security. Their size and mobility could lead to a greater number of nuclear sites, they say, straining the limited resources available to protect the country’s nuclear assets.

Since 2010, lawmakers in several states have introduced legislation supporting the development of small modular reactors, and a handful have passed. Most of the bills focus on creat-ing nuclear energy task forces to study the research, financing and tax incentive programs around small reactors.

The Idaho Department of Labor esti-mates that building the first small reactor will create 1,000 direct construction jobs and support an additional 11,800 local jobs ser-vicing the new workforce. The department estimates the project will generate almost $4 billion in total new industry revenue for Idaho Falls.

For two decades, the U.S. stopped building nuclear power plants, and concerns over the upfront costs linger. As the grid transforms over the coming decades, small modular reactors could offer the solution to keeping the U.S. in a global leadership posi-tion when it comes to the largest source of carbon-free electricity.

—Daniel Shea


TRENDS

Cyberbullies Go Catfishing

Catfish are easy to farm and a popular inexpensive and safe food. But in Oklahoma, and about a dozen other states, catfishing can get you in trouble.

The kind of catfish states like Oklahoma are eyeing are cyber-bullies who steal others’ identities and likenesses off the internet. They create entirely fictitious online personas who lure unsuspecting users into online romances or who create those profiles to harass, intimidate or threaten.

Oklahoma law defines this kind of scammer as someone who uses social media to grab a person’s name, voice, signature, photograph or likeness with-out the person’s consent, to create a false identity, for the purpose of harming, intimidating, threatening or defrauding that person. The law allows victims to seek an automatic injunction and money damages. To address First Amend-ment concerns, the law specifically excludes online parodies or satire. It also does not apply to law enforcement agencies or officials investigating online crimes.

Many states have criminal impersonation laws that potentially could apply to online impersonation. However, at least 12 other states have laws that criminalize electronic impersonation of another person with the intent to obtain a benefit or to injure or defraud another. Also, at least six states include online impersonation in cyberbullying laws. Internet impersonation bills were introduced this year in at least six states. The Oklahoma law, how-ever, is the first to address creating a fictitious person using another person’s photographs or videos. —Pam Greenberg

How to Spot a “Catfish”

Be wary of someone who:• Seems too good to be true, with a profile that perfectly

complements your own, or who claims amazing

accomplishments.

• Tells tragic tales, like losing a loved one, to gain your sympathy.

• Has a sparse online profile, with a small number of friends and

few photos with other people.

• Avoids letting you see his face and refuses to use the camera phone.

Check out people you meet online by:• Googling their names and basic information, moving on to

public record sites, criminal and sex offender records, other social

media accounts.

• Dragging and dropping their photos into Google to see if similar

photos appear in other places online.

Protect yourself by:• Saving emails and voicemails and taking screenshots of online

profiles and private text messages.

Sources: Social Catfish, an online dating resource; PCWorld

magazine; Cyberbullying Research Center; and ABC News

Aging at Home Remains Popular

Millions of Americans, including older adults and people with disabilities or chronic illnesses, require long-term services

and supports to complete their daily routines. And a growing number of them

are choosing to receive those services in their homes rather than in long-term care institutions like nursing homes.

Home- and community-based care ranges from complex services, like IV ther-apy, to assistance with bathing and dress-ing, housework and other daily activities. Long-term care at home is individualized and time-intensive—and often paid for by Medicaid, which currently covers about 50 percent of the country’s long-term care expenses. Medicaid spent a total of $152 billion on long term-care in 2014, with the greatest portion—53.1 percent—going to home- and community-based services.

Nearly 90 percent of adults age 65 and older wanted to stay in their current home and community as they age, according to a 2014 AARP survey, and the data suggest it’s cost effective for them to do so. The median annual cost for nursing facility care was $91,250 in 2015, according to the Kaiser Family Foundation. By comparison,

one year of home health aide services was almost $45,800 (at $20 per hour, 44 hours per week) and about $18,000 ($69 per day, five days per week) for adult day care. Gen-erally, home- and community-based services are less expensive than institutional care, but may still represent a major financial burden for individuals and their families.

Several states are testing creative home- and community-based programs that aim to help consumers direct their own care, by drafting their own care plans, selecting their personal care assistants (who may be family members), and choosing how and when ser-vices are provided. States have established these innovations through various Medic-aid waivers or state plan amendments.

With 10,000 Americans turning 65 every day, improving long-term services and sup-ports will remain a priority for policymak-ers as they consider options for meeting an aging population’s needs and desires.

—Samantha Scotti


The new federal Every Student Succeeds Act requires needs assessments to evaluate how to boost achievement in low-performing schools. The assessments could help identify health and other underlying issues affecting

academic performance, according to a new analysis conducted by the Health Impact Project (a collaboration of the Robert Wood Johnson Foundation and The Pew Charitable Trusts).

The assessments examine various data, such as standardized test scores and school performance on state accountability goals, to mea-sure the unmet needs of students and schools. They can also be a vehi-cle to identify issues related to school climate, family and community involvement, as well as underlying factors like students’ housing sta-bility, health or food security, that can affect academic performance.

Healthier students are more successful in school. For example, research has demonstrated links between asthma and absenteeism, as well as other health conditions and dropout rates. In turn, better educated citizens have greater employment opportunities and earnings, according to the Virginia Commonwealth University Center on Society and Health. And studies show that better educated people enjoy better health over time and live longer with lower rates of chronic disease.

Disparities in health and education track each other closely, too. According to an analysis of data by the Health Impact Proj-ect, students from low-income families and students of color

are more likely than their peers to have higher rates of diabetes, asthma, obesity and other chronic conditions. These students also are more likely to attend low-performing schools and less likely to graduate high school.

The needs assessments under ESSA can also be used to incor-porate participation from school leaders, parents and teachers. Reaching out to community members and other stakeholders may help school districts connect to new state and local resources, or better coordinate existing efforts that can target a range of factors related to health and education.

Colorado, for example, requires students’ health to be included in academic accountability and improvement planning. The state supports data-collection efforts used by school districts and com-munity partners to help decide where to allocate grants, how to plan local wellness policies, and what new prevention programs should be created.

Across the nation, schools are stretching resources just to pro-vide essential educational services. State and local partnerships could bring additional resources to the table to address more of the underlying factors that can affect students’ success in school. By incorporating health into education policy, states and commu-nities can better address disparities and improve students’ health as well as their educational achievement. —Kate Blackman

TRENDS

Opioid Offensive

Opioid overdoses continue to kill Americans at an alarming rate. Improving access to effective treatment for substance use disorders, including opioid addiction, would help combat this public health crisis. “Ensuring that people with

substance use disorders have access to evidence-based care is essential to reducing opioid overdose deaths,” says Cynthia Reilly, director of the substance use prevention and treatment initiative at The Pew Charitable Trusts.

The Trump administration announced in April that it will award a total of $485 million in grants to all 50 states, the District of Columbia and the territories to help improve access to treatments.“Opioids were responsible for over 33,000 deaths in 2015; this alarming statistic is unac-ceptable to me,” Tom Price, secretary of the Department of Health and Human Services, said when he announced the grants. “We cannot con-tinue to lose our nation’s citizens to addiction.”

Price said his department is committed to supporting the most clinically sound, effective and efficient prevention, treatment and recovery services. The department identified four areas for improve-ment: public health surveillance, pain management, access to treat-ment and recovery services, and the availability and distribution of overdose-reversing drugs. It will also support cutting-edge research.

Certain insurance policies and practices create barriers for people needing treatment as well as for the providers offering care. When

insurance policies don’t cover the costs of treatment, for example, patients often choose not to seek the medications and services they need to get well. The new federal grants will help states in their efforts to make the full spectrum of treatment and services more widely available.

The most effective substance-use treatments can involve a range of interventions, including talk therapy and cognitive and dialectical behavioral therapies, combined with drugs approved by the Food and Drug Administration. Finding the right combination of therapies is patient-specific and can be more difficult if some drugs and services are unavailable.

Even Medicaid doesn’t cover all the services recommended by the American Society of Addiction Medicine in 37 states. Private insur-ance companies may not cover the most effective treatments either, but, when confronted with a parity violation, they often will change. Federal and state parity laws require most insurance plans to provide coverage for mental health conditions that’s equal to coverage for physical illnesses. The federal requirements are part of both the Men-tal Health Parity and Addiction Equity Act of 2008 and the Afford-able Care Act.

States and territories were awarded the new federal funds based on their rates of overdose deaths and unmet need for opioid addiction treatment. The grants range from a minimum of $2 million in several states to $44,749,771 in California. —Karmen Hanson

Better Health for Better Grades

Ongoing


RETIREMENT

Anna Petrini is a policy specialist in

NCSL’s Strategic Initiatives Program.

States face a costly

future if their

citizens fail to

save enough for

retirement.

BY ANNA PETRINI

Most Americans are not saving enough for retirement. The prob-lem is especially severe among small-business employees, low-in-

come workers and communities of color. On the brink of a national retirement security crisis, state lawmakers are stepping into the breach with a spectrum of innovative solutions.

Retirement planning experts have tradition-ally used the analogy of a three-legged stool to describe the common sources of retirement income: Social Security, employer-provided pensions and individual savings. But the stool has grown wobbly for many workers, par-ticularly in the private sector. For one, fewer employers offer traditional pensions, which puts the onus on workers to save more them-selves. Another issue is changing demograph-ics—people are simply living longer and need to save more money as a result. A third con-cern: Just how secure is Social Security?

As state officials stare down the prospect of mounting costs if their citizens retire into pov-erty, they’re looking carefully at how to boost retirement savings. Should they create and facilitate new retirement savings programs for private sector workers or encourage participa-tion in existing plans?

One important consideration is how to take full advantage of the options the private finan-cial services market already offers. It’s a balanc-ing act as legislators try to promote employee savings, limit burdens for employers, and man-age legal and financial risks for their states.

“The bottom line is that, by most reasonable metrics, about half the population is not on a path toward a secure retire-ment,” says Illinois Senator Daniel Biss (D). “And that dif-ferentiates this issue from almost any other in our discourse. We have very justified anxiety about costs of health care, about costs of college, about affordability of housing, about a whole variety of standard bread-and-butter middle-class issues. These anxieties are import-ant and these problems are severe and require solutions. I don’t think any of them have the situation where the median family is in serious trouble in the way that we see happening across the country on retirement. … It’s an opportu-nity to help people on a scale that I think we rarely encounter as policymakers.”

The Scope of a Looming CrisisRoughly 10,000 baby boomers turn 65 each

day. And less than a quarter of them, along with members of Generation X, feel confi-

(Un)Ready for Retirement

“About half the population

is not on a path toward a

secure retirement.”

SENATOR DANIEL BISS, ILLINOIS

SenatorDaniel BissIllinois


RETIREMENT

dent they have enough sav-ings to last throughout their retirement years, accord-ing to research from the Insured Retirement Institute. Another report, from the National Institute on Retire-ment Security, found that 3 in 4 Americans are highly anxious about their retire-ment outlook. The level of concern was consistent across gender, generational and economic lines.

Senator Todd Weiler (R) of Utah notes that not only do a lot of people retire with little savings, many retire with more debt than savings. “As a Republican, this alarms me because I know that if someone retires with insufficient funds, they’re going to be looking to the government as a safety net.”

These fears are not misplaced. Accord-ing to AARP, half of American households

risk financial insecurity in retirement, leav-ing them unable to afford basics like food, medicine and utilities. Many who have remained solidly middle class throughout their working lives may face financial hard-ship in their senior years.

About 80 percent of workers between ages 25 and 34, and 48 percent of workers age 45 or older, have less than $25,000 in total savings and investments, according to the Employee Benefits Research Insti-tute’s 2014 Retirement Confidence Survey. Moreover, nearly one-third of households

age 55 and older lacked either a traditional defined benefit pension plan or defined contribution retirement savings—like 401(k)s or individual retirement accounts (IRAs)—in 2013. That leaves Social Secu-rity as their main or only source of retire-ment income. Questions about its long-term solvency aside, Social Security was never designed to serve as a retiree’s sole source of income.

State, local and federal policymakers want to ensure that, after a lifetime of hard work, retirees can maintain a dignified

Younger

than

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35–44 ye

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45–54

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s old

55–64 ye

ars o

ld

65 ye

ars o

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older

65–69 ye

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70–74

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75 ye

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Net worth (total)Net worth (excluding equity in own home)

Median Net Worth of Households, 2011

$6,676

$4,151

$35,000

$14,2

26

$34,542

$25,006

$143,9

64

$45,447

$170,5

16

$27,322

$194,2

26

$43,921

$181,0

78

$31,823

$155,71

4

$20,366

Note: Total net worth includes all financial assets, including home equity, savings accounts, certificates of deposit,

stocks and mutual funds, and vehicles.

Source: U.S. Census Bureau, 2011 data

“If someone retires with

insufficient funds, they’re

going to be looking to

the government as a

safety net.”

SENATOR TODD WEILER, UTAH

SenatorTodd WeilerUtah

Source: U.S. Census Bureau, 2011 data


standard of living. And it’s going to cost taxpayers down the road if people reach old age without sufficient resources.

Numerous factors are driving the retire-ment security crisis, from shifting demo-graphics and structural changes in the Amer-ican workforce to limited financial literacy.

While retirement ages tick up slowly, they are not keeping pace with increasing life expectancies. As a result, Americans have to finance retirement over a longer period of time. They may invest too con-servatively, yielding insufficient returns to guarantee a comfortable retirement. Likewise, consumer debt, large or unan-ticipated expenses, and inflation can all threaten long-term savings. Few workers are sophisticated financial experts; indeed, many lack basic knowledge about personal finance. Even the most determined savers may find the complexities of today’s finan-cial markets difficult to navigate.

Workers are 15 times more likely to save if they have access to a payroll deduc-tion savings plan through their employers, according to one report. But 68 million Americans don’t have access to a retire-ment savings program at work, the U.S. Department of Labor estimated in 2015. The likelihood of having a workplace retirement plan varies considerably by geography and employer size, not to men-tion worker earnings, education, race and ethnicity. Those with lower rates of access to on-the-job savings include small-busi-ness employees; part-time, temporary and seasonal employees; members of minority groups; and people with low to moderate incomes. Offering such plans may carry costs or burdens that small employers, in particular, are reluctant or unable to bear.

A Spectrum of State SolutionsSince 2012, lawmakers in at least 39

states have introduced legislation to study or create some type of state-sponsored retirement savings program for nongovern-mental workers. Task forces in Minnesota, New Mexico, New York and Virginia are examining whether a state role in increas-ing retirement savings is appropriate and if

it would save taxpayer money.New Jersey and Washington are cre-

ating online marketplaces, where small businesses and individuals can compari-son-shop for savings plans from financial services providers. These online clearing-houses will be voluntary for employers and employees and are favored by many in the financial industry. Washington plans to roll out its marketplace later this year.

“Washington residents have a signifi-cant gap between their actual retirement savings and the amount financial planners recommend,” says Senator Joe Fain (R), who served on the Financial Institutions and Insurance Committee when the Small Business Retirement Mar-ketplace bill was passed by the Legislature in 2015. “More than 1.5 million Washington employees do not have access to retire-ment savings plans at work. Making it easier for people, especially small-business employees, to access retirement plans cre-ates a more financially secure future.”

Taking a different tack, lawmakers in California, Connecticut, Illinois, Maryland and Oregon have adopted legislation to create state-sponsored retirement savings programs featuring IRAs that receive auto-matic deposits from workers’ paychecks. These “Secure Choice” programs, as they’re sometimes known as, require employers of a certain size to offer their employees a way to save for retirement at work. Employers who don’t want to sponsor their own retirement savings plans can use the state IRA. It is vol-untary for workers, who decide how much to put away and how to invest it. Employers don’t contribute. Secure Choice programs are run via public-private partnership, and employee funds are pooled and profession-ally invested by the financial industry.

A third approach involves the state aggregating employers who elect to partici-pate to offer a 401(k)-style retirement plan. In January, a study committee in Vermont recommended that the state design one of these voluntary multiple employer plans.

RETIREMENT

RETIREMENTBY THE NUMBERS

63The average age at which Americans retire

$42,797The amount the average 50-year-old has

saved

$73,857The median income of householders age 45

to 54 in 2015


to 64 in 2015


and older in 2015

18 yearsThe average length of retirement

$1,360The average monthly Social Security

retirement benefit

20%Portion of Americans who tap into their

401(k) assets early, either through a loan or

withdrawal

97 yearsThe age 30% of today’s 50-year-old women

and 19% of 50-year-old men will live to

Sources: U.S. Census Bureau, Kaiser Family

Foundation, Social Security Administration

RETIREMENT

SenatorJoe FainWashington


Retirement Plans

RETIREMENT RETIREMENT

In a final variation, Massachusetts is experimenting with a voluntary 401(k) plan for employees of small nonprofits.

Tradeoffs Abound

The various plan structures and features have tradeoffs. A voluntary marketplace, for example, is an attractive option in part because it capitalizes on existing retirement plan products and services and could be less disruptive for providers. But it may not yield enough participation to generate sig-nificant increases in coverage to make the plan self-sustaining.

Policymakers face a host of tough ques-tions. What is the best way to reach those on the financial fringes—low-income, minority or gig-economy workers? How can states encourage adequate retirement savings without demanding too much of cash-strapped workers, who have little set aside for emergencies. Could employ-

ers drop existing plans to send workers into state-sponsored alternatives? Will employees save less as a result? Will small account balances make plan administra-tion inefficient? What is the right type and number of investment options? How many is too many when it comes to ease of use? And what is the appropriate state role for enhancing financial literacy and general investment education?

Another layer of complexity for state lawmakers and regulators, financial ser-vices firms and other stakeholders is the constantly shifting matrix of federal law.

Recent Federal DevelopmentsFollowing failures of pension plans

during the 1960s, Congress passed the Employee Retirement Income Security Act in 1974 as a framework of consumer pro-

“Making it easier for

people, especially small-

business employees, to

access retirement plans

creates a more financially

secure future.”

SENATOR JOE FAIN, WASHINGTON

Too expensive to set up

Organization does not have the

resources to administersuch a plan

Employees are not

interested

Organization is too new

Organization is concerned about how to choose a plan

provider

We haven’t thought about it

Other reason

Note: Those without plans were asked to (a) Indicate whether any of the the following are reasons the organization does not offer a retirement plan (more than one reason can be listed) and (b) Give the main reason for not offering a plan.

Source: The Pew Charitable Trusts, 2017

Why Don’t Small- and Medium-Sized Businesses Offer Retirement Plans?

Top Reasons: Expense, administration burdens, and lack of employee interest

71%

37%

63%

22%

50%

17%13%

5%

15%

1%

22%

7%

18%

11%

A Reason Main Reason


Whatever your role in the legislature, there’s an NCSL staff association for you—and a training seminar where you’ll connect

with colleagues and sharpen your skills. Register for one today!

Learn more and register today at ncsl.org/legislativestaff

NCSL U.S.TOUR2017

American Society of Legislative Clerks and Secretaries (ASLCS) Phoenix, Ariz. Sept. 24 – 29

Leadership Staff Section (LSS) Boston, Mass. Aug 5-6

Legislative Information and Communications Staff (LINCS) Washington, D.C. Oct. 3 – 5

Legislative Research Librarians (LRL) Helena, Mont. Sept. 13 – 16

National Association of Legislative Fiscal Offices (NALFO) New Orleans, La. Oct. 4 – 6

National Association of Legislative Information Technology (NALIT) Annapolis, Md. Sept. 12 – 15

National Legislative Program Evaluation Society (NLPES) Madison, Wis. Sept. 17 – 20

National Legislative Services and Security Association (NLSSA) Reno, Nev. Sept. 25 – 29

National Seminar on Human Resource Management in State Legislatures Alexandria, Va. October 26-28

Research, Editorial, Legal and Committee Staff (RELACS) Lexington, Ky. Sept. 24 – 27


RETIREMENT

Senate PresidentKevin de LeónCalifornia

tections for employer-provided retirement, health and welfare plans. It generally doesn’t cover public sector employers, religious institutions or IRAs set up by individuals.

Known as ERISA, the act provides important consumer protections for pri-vate sector employees. It also carries reg-ulatory burdens for their employers, who must comply with stringent reporting and disclosure rules, and it imposes fiduciary responsibilities on retirement plan sponsors and providers.

States exploring retirement security legislation have faced uncertainty about the broad federal pre-emption provisions contained in ERISA. In 2016, the U.S. Department of Labor issued several pieces of guidance on how states can address retirement insecurity, including a final reg-ulation meant to provide clarity for states interested in sponsoring auto-IRA plans, such as the Secure Choice model men-tioned above. The department followed up with a rule aimed at certain cities and local governments that want to set up similar programs.

The rule for state-sponsored plans pro-vides a limited safe harbor exemption from ERISA if a program meets certain require-ments. Among them, employees must be allowed to opt out, and employers, who cannot make contributions themselves, must play a limited administrative role. The rule also requires certain employee protections.

Some members of the financial services industry expressed concern that the regula-tion creates an uneven playing field in the retirement plan marketplace. Under cur-rent Labor Department regulations, pri-vate providers cannot offer similar savings arrangements with the types of auto-en-rollment and auto-escalation features the department’s recent actions would permit for state-facilitated plans. Other indus-try concerns relate to unintended conse-quences, like reduced economies of scale and less incentive for innovation among private providers.

Using the Congressional Review Act, which permits federal lawmakers to roll back regulations from the last months of the previous administration, Republicans moved swiftly during the first weeks of the new session to repeal the Labor Depart-

ment rules that green-lit state and locally sponsored auto-IRA plans. Citing an unwarranted pre-emption of state inno-vation, NCSL joined a bipartisan group of state treasurers and other groups in opposing the state rule rollback. As the number of workers who lack sufficient retirement savings grows, the strain on public finances means states need the flex-ibility to develop creative solutions, NCSL said in letters to the House and Senate in February. President Donald Trump signed the resolution nullifying the rule for municipalities, and as this magazine went to press, he appeared likely to sign the res-olution invalidating the state rule as well.

Meanwhile, federal legislation autho-rizing private retirement providers to offer pooled plans to all employers within a state met with strong bipartisan sup-port when it passed the Senate Finance Committee in 2016 and is expected to be revived in 2017.

Even with uncertainty about the federal legislative and regulatory landscape, and

a contentious political cli-mate, some state leaders have vowed to forge ahead with retirement security efforts.

“There is nothing more powerful for financial literacy than when a person opens up that quarterly statement and sees the power of compound interest over time,” says California Senate President Kevin de León (D). “We are cre-ating a generation of new savers through-out the country who will rely less on gov-ernment. Whether you are a Republican or a Democrat, you will pay the consequences in state budgets when you have to subsidize those who live in poverty as senior citizens.

“Retirement insecurity is a bipartisan issue. It’s an American issue.”

“Retirement insecurity is a

bipartisan issue.”

SENATE PRESIDENT KEVIN DE LEÓN, CALIFORNIA

Enacted state-sponsored IRA savings program for private-sector workers Enacted marketplace plan Enacted state-facilitated plan for nonprofit workers Proposed retirement security legislation and/or a study in 2017 Previously had proposed retirement security or study legislation

Source: NCSL

Retirement Security Legislation 2012-2017

RI PR VI GU MP AS


SUMMITSUMMITL E G I S L A T I V E

Aug. 6-9, 2017

n Beyond the Horizon: U.S. Economic Outlook

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n The Boston Tea Party

REGISTER NOW AT NCSL.ORG/SUMMIT2017

Willow JacobsonAssociate Professor, University of

North Carolina School of Government

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and radio host

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John Jay College of Criminal Justice

Barbara DershowitzChange Managment

Specialist

John BoltonFormer United States Ambassador

to the United Nations

Discover revolutionary ideas...

Doris Kearns GoodwinPresidential

historian

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and pollster


STATELINE

5The Official Rye? I Cannot Tell a LieAs if there weren’t already reasons enough to be impressed by

our nation’s first president. George Washington ran what was

at one time the top whiskey distillery in the country, producing

nearly 11,000 gallons in 1799. His rye whiskey is being made

again at Mount Vernon and, thanks to a bill sponsored by

Senator Adam Ebbin (D), is the designated state spirit.

4No Appetite for ShameMost school districts try to work with

families who fall behind in their meal

payments. Some, however, resort to “lunch

shaming”—singling out kids whose families

are in debt by serving them a lower quality

meal or requiring them to wear wristbands

or stand in separate lines in the cafeteria.

New Mexico is the first state to enact

legislation banning the practice. The

U.S. Department of Agriculture, which

pays for student meals through the

National School Lunch Program,

is requiring that states clarify

policies on meal debt by July

1. Last year, the School

Nutrition Association

estimated that three-

quarters of the

nation’s school

districts have

unpaid meal debt.

3Special DeliveryGeorgia Representative Allen Peake (R) knows only that the package of

cannabis oils that appears on his office doorstep every month comes from

Colorado. He doesn’t know how the packages get to him, and he’s not

asking, ABC News reports. His concern is distributing the low-THC oils to

hundreds of the 1,300 Georgians enrolled in the state’s medical marijuana

program, which his legislation established in 2015. Enrollees may possess

medical cannabis, but can’t grow it, import it or buy it. Peake acquires the

products (not directly; he donates about $100,000 annually to a Colorado

foundation), then gives them away, and he’s careful (his partners are

registered with the state and enrolled in the cannabis program). So far, he’s

avoided legal trouble, and he hopes to expand the law.

2Busting Backlogs With DonationsTwo states are taking novel approaches to the costly challenge

of clearing their backlogs of untested rape kits. In New Mexico, a

new, first-in-the-nation law lets residents donate to the testing

effort when they file their state tax returns. The state has some

5,000 untested kits, which can cost up to $1,000 each to analyze.

The law takes effect in 2018. Next door, The Lone Star State,

which also has several thousand untested kits, is considering

a measure that would ask drivers renewing their licenses to

donate $1 or more to testing.

Budget officials estimate the

bill could raise $1 million in

donations. New Mexico’s

bill passed unanimously

and, at press time, the Texas

measure had bipartisan

support.

1The Times Could Be a-Changin’Time could be running out on the twice-a-year ritual of changing

clocks to go off and on daylight saving time. A movement to

“lock the clock”—that is, either eliminate daylight saving time

or stay on it year-round—is growing as researchers say time

changes lead to public health, productivity and safety problems,

Pew’s Stateline reports. Lawmakers in at least six states—

Connecticut, Illinois, Michigan, Mississippi, New Mexico and

Wyoming—have introduced bills that would effectively move

their states one time zone to the east. About half the states have

considered or are considering time-related bills this year.


STATELINE

10Draining the Swamp?The residents of Delaware, Minnesota and

Massachusetts are the nation’s biggest federal

taxpayers. On average, they paid the most per

person in federal income, payroll and estate

taxes in 2016, The Associated Press reports.

Paying the least per person last year

were New Mexicans, Mississippians and

West Virginians. But by far the highest

average per person amount was

paid in the District of Columbia—it

was more than double that paid

in any of the states. The reason

the district pays more? A lot of

residents with high incomes,

the AP reports.

6Sunscreen in SchoolsA few serious sunburns can increase a

child’s risk of skin cancer later in life,

according to the Centers for Disease

Control and Prevention. But because

the Food and Drug Administration

lists sunscreen as a drug, most states

ban it from schools unless students

have a note from a doctor and parent.

Only four states—California, New

York, Oregon and Utah—have laws

requiring schools to allow students to

bring sunscreen to school. Seven more

states are considering bills to exempt

sunscreen from the medication list.

“It’s just kind of a no-brainer,” says

Senator Ann Rivers (R), who sponsored

Washington’s bill.

7Meals on Robo WheelsDelivery robots may soon

be a common sight in

Wisconsin. The rolling bots

have been used successfully

since last year to deliver food

to apartment dwellers in

several European cities and,

since February, in pilot programs in California and the District of Columbia.

About the size of a typical picnic cooler, the self-driving bots are controlled

by GPS and equipped with cameras and sensors allowing them to navigate

busy streets and sidewalks. After seeing the bots demonstrated at NCSL’s

Legislative Summit last year, Wisconsin Assembly Speaker Robin Vos (R)

directed his staff to investigate bringing the

technology to the Badger State. The bots

are legal on sidewalks in Virginia and the

district, and lawmakers are considering

similar measures in Florida and

Idaho.

9Anniversary Coming Up?When appreciative Minnesota House

leaders learned the chamber’s

nonpartisan Research Department

was turning 50 years old this year,

they read a resolution during an April

floor session, then threw a reception

afterward. But the party almost

failed to launch. “We discovered it

was our 50th anniversary largely by

accident, when interviewing a law

clerk applicant who asked how long

the office had been around,” says

Matt Gehring, a legislative analyst

and attorney in the department. He

contacted NCSL with advice for other

departments: Check your calendars. “I

would guess many other nonpartisan

offices in other states are probably

approaching similar milestones, and

might not even realize it.”

8Closing the Gender Pay Gap

Are you single? Do you attend church? Such

personal questions are off limits in job interviews,

and nearly two-dozen states are considering adding

another: How much did your last employer pay you?

Massachusetts already has such a law on the books, CNN

reports. The measures’ intent is to close the pay gap between

men and women—who made 79.6 cents for every dollar men

earned in 2015, according to the Census Bureau. Proponents

say the bills will help break the cycle of salary-history

questions reinforcing unfair wages throughout a woman’s

career. Critics, including some chamber of commerce

groups, say the laws can make it difficult to search

for and recruit top talent.


CHILD SUPPORT

Jane Hoback is a freelance writer based

in Denver. Meghan McCann and Alison

Lawrence, NCSL policy experts, contributed

to this article.

For parents in prison,

unpaid child support

bills can become a

crushing debt.

BY JANE HOBACK

When parents go to prison, it can send their kids’ lives into chaos.

The growing number of children with parents in prison

raises concerns because of the increased risks they face. Children of incarcerated parents are more likely to live in poverty or unsta-ble households, according to the National Resource Center on Children and Families of the Incarcerated at Rutgers University. More often than their peers, they face mental health issues and educational difficulties.

Approximately 1.53 million people were held in federal and state prisons at the begin-ning of 2016, leaving an estimated 2.7 million children behind. In addition, based on previ-ous studies, about 400,000 inmates are under a child support order.

An “Enormous” ProblemWith virtually no income, inmates who

owe child support often leave prison with overwhelming debt—between $10,000 and $110,000 for each of them, according to a Marshall Project study of noncustodial par-ents in 10 states.

Lynne Haney, a sociology professor at New York University who has published a study of child support and incarceration, interviewed inmates in California, Florida and New York. Each owed an average of $35,000 in child sup-port. Once out of prison, often with limited job prospects, some resorted to the “under-ground economy,” selling drugs, for example, and avoiding their families. Frequently, they wound up back in prison.

“It’s an enormous problem. It’s just mind- boggling,” Haney says. “We don’t even have a sense of the scale of the problem because we don’t have reliable data.”

The Federal Office of Child Support Enforcement reports that late child support owed by all noncustodial parents—not only those in prison—totaled nearly $116 billion in 2015, and of that amount, less than $7.6 billion was paid.

Two Issues, Many QuestionsIt’s important to distinguish the parent who

is incarcerated for committing a crime who also has a child support order from the parent who is jailed for failing to pay child support. Encouraging these two types of parents to make ongoing, consistent child support pay-ments requires very different strategies, partic-ularly considering the reasons for and potential length of their incarceration.

All 50 states have processes for criminal prosecution and civil contempt for failure to pay child support. However, criminal pros-ecutions are rarely used. Civil contempt is designed to give the defendant an incentive to comply with the child support order.

Recognizing that little to no support can be paid when a parent is incarcerated, many states have established programs to encourage full compliance. Some adjust child support orders to reflect more realistic amounts; others divert offenders from incarceration and remove potential barriers to finding a job.

The financial benefits of diverting nonpaying parents from jail into employment programs, to the family and the wider community, can be significant. Parents are generally ordered into these programs by the courts and may still face a period of incarceration for failing to follow the rules of the diversion program.

The Federal AnswerThe federal Office of Child Support

Enforcement updated its administrative rule at the end of 2016. The new rule is intended to increase the effectiveness of the program for families, and offer more flexibility to states in managing the program. The rule also removes barriers to help states update systems with newer technology to improve efficiency and simplify the process of collecting and distrib-uting child support. The new provisions are, for the most part, optional and do not require legislation in most states. But they do provide an opportunity for state legislators to clarify various child support enforcement laws.

Behind Bars, Behind in Payments


CHILD SUPPORT

The rule specifically addresses incar-ceration for failure to pay child support in light of the 2011 U.S. Supreme Court case Turner v. Rogers. The case described the factors to be considered when determining which cases should be referred to the court for civil contempt, including a parent’s ability to pay.

When parents with child support orders are incarcerated for other offenses, the rule specifically addresses their right to have a child support order reviewed and poten-tially modified while they are confined. The rule prohibits states from treating incarceration as voluntary unemployment for purposes of modifying a child support order. Currently 36 states and the District of Columbia treat incarceration as involun-tary unemployment, allowing for child sup-port orders to be modified during periods of incarceration.

States Take Various ApproachesUtah lawmakers this year enacted leg-

islation allowing incarceration to be con-sidered a factor in setting child support amounts and, barring incarceration of at least six months, to be treated as voluntary unemployment when establishing or modi-fying a support order.

In 2015, Texas lawmakers passed legis-lation allowing child support payments to be adjusted for incarcerated noncustodial parents. The bill reversed a law that calcu-lated support amounts by presuming the earnings of a parent owing child support were equal to the federal minimum wage for a 40-hour week.

“Former prisoners were getting caught in a trap,” says Brete Anderson, chief leg-islative director for Representative Senfro-nia Thompson (D), who sponsored the bill. “Some of these guys were coming out of prison after 10 years owing $200,000.”

California was the first state, and North Dakota is the most recent, to enact mea-sures automatically suspending child sup-port orders when parents are incarcerated.

Often, incarcerated parents have no idea they can ask for an adjustment of their support orders. “You have to know about it to apply for it,” Haney, the sociol-ogy professor, says. “I gave a talk to about

500 inmates in Florida, and I asked them, ‘How many of you knew that when you got into prison you had to apply to (modify) your order?’ Not a single one knew any-thing about it.”

Policy experts and state officials alike agree that, while it’s often difficult to find effective ways to notify prisoners, the effort is necessary. Pending legislation in New York would require that inmates be notified of their right to seek modifica-tion of child support orders. Washington is experimenting with various methods to get the word to prisoners that they have a right to make such a request.

“We’re trying to use more simple lan-

guage, and we’re educating the corrections counselors as well,” says Wally McClure, director of the state’s Division of Child Support. “It doesn’t do any good for some-body to come out of prison with $30,000 or $40,000 worth of child support debt. That doesn’t help the child at all. The parent is just going to hide, or go back to prison.”

Washington offers a program called Alternative Solutions to help noncusto-dial parents, including those coming out of prison, find jobs, training, housing, food, and medical and legal resources. It also helps them to adjust their child support payments to make it more likely they can pay what they owe.

WorkUnemployed parent who

is behind in child support

payments is referred to services

that help him find a job, stay

employed and pay child support.

A University of Texas study

shows:

• More than 80% find work

within two months

• Participants are 33% less

likely to file unemployment

• Participants paid 51% more

in child support

• Families are 21% less likely

to receive public assistance

Costs per day$5

• Skills assessment

• Debt management

• Job search assistance

• Job placement

• Follow-up monitoring and

support

Child support paid$4,000

JailUnemployed parent who

is behind in child support

payments is jailed with little or

no opportunity to work.

A Pew Charitable Trusts study

shows, after jail release:

• Individuals are unemployed

nine weeks more per year

• Annual earnings are reduced

by 40%

• Hourly wages are 11% less

• Annual family income is

reduced by 22%

Costs per day$186

• Loss of job opportunities

• New barriers to future work

• Uncollectible debt

• Loss of contact with children

• Other collateral

consequences

Child support paid$0

Work vs. Jail

Source: Office of Child Support Enforcement, October 2015


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NCSL does a great job of bringing legislators together from

diverse perspectives to learn from one another away from

their partisan environments. By finding common ground on

important state issues, we can make a larger impact in D.C.”

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Get involved through NCSL’s Standing

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Learn more at ncsl.org/members


“We really are trying to work with par-ents who have these barriers and connect them with the community services they need,” McClure says.

Alternatives to PrisonStates also are providing alternative

punishment for some parents who fail to pay child support so they can stay out of prison to help raise their children or get jobs to pay their child sup-port orders.

Georgia Representative Alan Powell (R) sponsored legislation, enacted in 2015, that created diversion centers for noncustodial parents who have been sentenced to jail for failure to pay child sup-port. The diversion centers allow parents to travel to and from their place of employment so they can keep their jobs and pay alimony or child support, includ-ing arrears. If parents don’t comply with the requirements, they can be sent to jail.

Georgia also expanded the Parent Accountability Courts throughout the state as an alternative to incarceration. Similar to drug courts, accountability courts offer non-custodial parents help in finding employ-ment or getting the education needed to find a job. Parents also get help for substance abuse and mental health issues.

“A lot of these noncustodial parents don’t have the ability to pay, so they’re found guilty of violating the court order and told they’re going to jail,” Powell says. “That’s not going to help the child or the family that needs the money.”

The accountability courts have helped 2,711 noncustodial parents provide sup-port to 4,780 children. Participants have paid an estimated $2.8 million in support and haved saved the state $10 million in incarceration costs, according to the Geor-gia Department of Human Services’ Divi-sion of Child Support Services.

Powell says the law is also helping lower Georgia’s high rate of incarceration, which in turn can yield cost savings. The cost of incarcerating one person for a year is $50,000, he says. “Instead of locking up the folks we’re mad at, we need to have that space for the folks we’re afraid of.”

Other states, including Louisiana and

Virginia, and several counties also have established diversion or work release pro-grams to help noncustodial parents find work so they can keep up with child sup-port rather than go to jail.

Parents With Custody of ChildrenChildren and families with an incarcer-

ated parent face even greater challenges. “Kids who have parents in prison are at

a higher risk of truancy, of dropping out of school, of drug or alcohol abuse, of men-tal illness. They feel shame and isolation,” says Susan Leavell, program administra-tor of Washington’s Family and Offender Sentencing Alternative and Community Parenting Alternative programs. Estab-lished by law in 2010, these programs have been providing an alternative to prison for custodial parents, or taking them out of prison, when the court deems it is in the best interest of their children.

The Family and Offender Sentencing Alternative program allows judges to waive a sentence and impose 12 months of community supervision for eligible offend-ers facing a prison sentence to maintain a continued presence in their child’s life. Offenders are not eligible if they have been convicted of a felony sex or violent offense.

The Community Parenting Alternative program allows the Department of Correc-tions to transfer a prisoner back home on electronic monitoring for up to the last 12 months of his or her sentence, if they meet the same eligibility requirements as in the Family and Offender Sentencing Alterna-tive program.

Parents must comply with several strict activity and reporting schedules that center on the family. The parents must read with their children and help with homework for at least 20 minutes every day, and they must have family dinner time with no elec-tronic devices or television.

Program staff visit the families regu-larly. “The focus is not work,” Leavell says. “It’s about building the parenting skills and setting up structure and routine, things we know help kids thrive. It’s really about strengthening families.”

When parents make their children a pri-ority, they are more likely to make good decisions in other areas of their lives, deci-sions that will keep them from going back

to prison, Leavell says. Nearly 80 percent of participants have successfully completed the programs since they began.

While the numbers are encouraging, the stories tell the true success. “We get letters from teachers where they note a remark-able improvement in a child’s attendance or their engagement in school work,” Leavell says. She recalls a case of an eighth-grader who had been struggling in school, failing to meet standards for her grade level. “We were able to move out her mother [from prison] and get her back home. Within the next quarter, the girl was meeting the stan-dard in reading. Those are the really excit-ing things.”

CHILD SUPPORT

Choices Make a Difference

Texas’ NCP Choices Program is a

court diversion program that assists

unemployed and underemployed

noncustodial parents find and maintain

employment. A program participant

must spend 30 hours a week looking for

a job, meet with a workforce counselor

every week until he or she finds a job,

attend all court hearings and program

appointments, comply with the child

support order and communicate with

the workforce counselor monthly after

getting hired.

The program showed the following

results in 2009:

• Participants paid $57 more child

support 47 percent more often, showing

a 51 percent increase in total collections.

These results continued at two and four

years after participation.

• Participants were 50 percent more

consistent paying child support over

time.

• Participants were employed

at 21 percent higher rates than

nonparticipants, two and four years after

the program.

• Participants were about one-third less

likely to file an unemployment claim in

any given month in the first year after

the program.

• The custodial parents associated

with NCP Choices participants were

21 percent less likely to receive TANF

benefits in the first year after the

program, and 29 percent less likely two

to four years after the program.

—Meghan McCann

Representative Alan Powell Georgia


NEWSMAKERS

CALIFORNIA ASSEMBLYMEMBER ADAM GRAY (D) HAS BEEN SELECTED TO CONVENE THE NEW DEMOCRATS, an

informal caucus of moderate Democrats. Gray said the group is

“committed to a pragmatic approach that promotes the interests

of hard-working Californians alienated by the extreme partisanship

of both the left and the right.” The group was started in 1997 and

consists of about 24 members.

FORMER UTAH SENATE PRESIDENT MILES “CAP” FERRY (R) DIED IN APRIL. He was praised as a great leader with a

flamboyant wardrobe that included a red plaid tuxedo he wore to

governors’ galas. He was 84. Ferry served three years in the House

and 17 in the Senate. He was Senate president from 1979-1984,

and president of NCSL in 1983-84.

“I hear so many people complain about the closed primary system.”Alaska Representative Gabrielle LeDoux (R) on her proposal

to establish a “top-two” primary system in which all

candidates, regardless of party, are placed on a single

ballot and the top two vote-getters advance to the general

election, in the Juneau Empire.

“They shouldn’t be scared of their own government.”

Hawaii Representative Joy San Buenaventura (D), referring

to immigrants in her resolution recognizing the traditional

“Ho’okipa” value of welcoming visitors and urging law

enforcement not to work with the federal government to deport

certain undocumented immigrants, in The Associated Press.

”We have legalized marijuana. Where do we want people to use it, if not at

home? On the street?” Colorado Senator Tim Neville (R) on his support for failed efforts to

allow and regulate marijuana clubs, in The Associated Press.

“I believe it is our job as legislators to allow innovation and emerging technologies to prosper and be

welcome in our state.”Wisconsin Representative Mike Kuglitsch (R), cosponsor of a bill to

allow delivery robots to traverse sidewalks and crosswalks, in The

Associated Press.

“The longer we wait for passing this legislation, the harder it will be for

the public to understand that this is not a new tax.”

Nebraska Senator Dan Watermeier (NP) on his proposal to

require online retailers to remit sales taxes if their gross revenue

in Nebraska exceeds $100,000 or they conduct 200 or more

transactions in the state, in The Associated Press.

NEVILLE

GRAYSAN BUENAVENTURA

FERRY

LEDOUX

KUGLITSCH

WATERMEIER


NEWSMAKERS

GUNN

SENATOR KENNY YUKO (D) IS THE NEW MINORITY LEADER OF THE OHIO SENATE. Senate Democrats unanimously elected him

to fill the leadership post left open after Joe Schiavoni resigned

to concentrate on a run for governor. Schiavoni has led the

Democratic caucus since the end of 2013. He is term limited at the

end of 2018 and will continue to serve in the Senate until then.

CONNECTICUT HOUSE SPEAKER JOE ARESIMOWICZ (D) ANNOUNCED HE IS LEAVING THE LEGISLATURE to coach

Nebraska’s defensive backs under former UCONN head coach

Bob Diaco. “This is an incredible opportunity, a true dream job,

and I know I would regret it if I didn’t give it a go,” he said in a

news release distributed to the capitol press corps and dated

April 1. April Fools.

RHODE ISLAND SENATE DEPUTY MAJORITY LEADER DONNA NESSELBUSH (D) STEPPED DOWN from

her post following the election of Senator Dominick

Ruggerio (D) as president. He succeeded Senator

Teresa Paiva Weed, who left to head up the Hospital

Association of Rhode Island. Nesselbush opposed what

she called an “undemocratic process” through which

Ruggerio made some committee chair replacements.

GEORGIA LIEUTENANT GOVERNOR AND SENATE PRESIDENT CASEY CAGLE (R) IS RUNNING FOR GOVERNOR to succeed Nathan Deal who is in his second and final term.

Cagle became Georgia’s youngest senator when he was elected

in 1994 at age 28. He made history in 2006 when he became

the first Republican ever elected to the office of lieutenant

governor in Georgia.

Legislative term limits are a “failed social experiment” in

Michigan.Senate Majority Leader Arlan Meekhof (R) during a

Lansing summit on fiscal stability, in The Detroit News.

“I’m open to looking at it. I do not think it’s

going to be the golden egg that everybody

thinks that it is.” Mississippi House Speaker Philip Gunn (R),

who is appointing a committee to study the

pros and cons of creating a state lottery, in

The Associated Press.

“We are consuming fewer and fewer gallons of gas for every

mile driven and yet it’s not getting any cheaper to build

roads. How do we address this and not act like Big Brother?”Ohio Senator Bill Coley (R) on his bill to charge Ohio

motorists $140 a year for license plates but not have to

pay the state’s 28 cents per gallon gas tax, in the Dayton

Daily News.

MEEKHOF

SCHIAVONI

COLEY

NESSELBUSH

ARESIMOWICZ

CAGLE

YUKO

RUGGERIO


BUDGETING

Allison Hiltz is a policy associate for Strategic

Initiatives at NCSL.

Evidence-based

policymaking can

arm lawmakers with

information about

what works.

BY ALLISON HILTZ

Friedrich Nietzsche once said, “There are no facts, only interpretations.” But decision makers around the country beg to disagree. Not only do they chal-

lenge the premise that there are no facts, but also that they are not open for debate. It is with this mindset that officials in all levels of gov-ernment have begun embracing evidence-based policymaking.

More than a buzzword, evidence-based policymaking is becoming a movement unto itself. A recently released report from the Pew-MacArthur Results First Initiative shows that all 50 states use evidence-based policy-making in some way. Many incorporate the findings from their in-depth analyses into their budgeting decisions, boosting funding for pro-grams that not only work, but also provide a positive return on the tax money invested.

Since 2011, leaders from 24 states and eight counties have adopted evidence-based policy-making procedures with help from the Results First Initiative, a project of The Pew Charita-ble Trusts and the John D. and Catherine T. MacArthur Foundation.

According to project director Sara Dube, Results First works with states and localities to help them adopt an evidence-based policymak-ing approach so decision makers can identify and fund programs that yield high returns on investment. Under the initiative, state agencies inventory and analyze programs—from crimi-nal justice to child welfare—to determine their effectiveness and their financial impact. The term “evidence-based policy” is fluid, and not all states, departments and agencies adhere to the same definition. Generally, the term refers to supporting policies based on careful, unbi-ased, scientific analyses of their effectiveness. Several states have statutes, administrative codes or executive orders defining how and when evidence-based policymaking is required.

Examples abound. Mississippi codified its definition of “evidence” and and created crite-ria to clarify what constitutes “evidence-based.” Oregon requires certain human-services agen-cies to direct at least 75 percent of their fund-ing to evidence-based practices. California now requires results to be reported along with expen-ditures for its drug and alcohol programs.

Facts Before Funding


BUDGETING

The Shift to Tighten BeltsThere are various reasons why states began shifting toward this

method of policymaking, but one shared event had an influence on all: The Great Recession.

As revenues began to decline in 2008, state lawmakers sought ways to tighten their belts without losing their shirts. Although strategic approaches to decision making were not a novel con-cept, they oftentimes focused solely on the budgeting process. Performance-based budgeting, or budgeting based on results and cost-benefit analyses, or weighing a program’s financial pros and cons, were not uncommon.

Washington blazed the trail toward data-driven decision making in 1983 when it created the Washington State Institute of Public Policy and charged it with being the nonpartisan research organi-zation within the legislative branch dedicated to improving citizens’ lives. Since then, it has evolved into a central component of Wash-ington’s government, conducting valuable, candid cost-benefit analyses for lawmakers.

The institute, for example, just finished analyzing the benefits and costs associated with long-acting injectable medications versus those taken orally for opioid and alcohol disorders. They found that injectable naltrexone, while effective, costs nearly four times more than methadone pills, resulting in a negative return on invest-ment. Each naltrexone treatment costs more than the benefits it yields (benefits include health insurance savings and future earn-

ings), whereas methadone was relatively inexpensive to administer and generated $2.22 for every dollar spent.

The distinction between an effective treatment and a cost-effec-tive treatment is a key one, says Elizabeth Drake, a senior research associate at the Institute of Public Policy. “The important thing to remember is that there are many treatment options that work, though some may be more expensive than others. Our goal at the institute is to monetize policy options, not to make value judg-ments, and enable lawmakers to make choices that best serve their individual communities.”

Despite differences in the ways and rates at which they’ve adopted evidence-based policymaking, many states are moving forward with plans to incorporate more of it into their budgeting practices. And all share a commitment to support programs that are proven to work and that allocate taxpayer money in the best way possible.

Minnesota Means LeanMinnesota launched its Office of Continuous Improvement a

decade ago to bolster government services and cut excess costs. The state’s Enterprise Lean Initiative, one of several programs within the office, works to maximize efficiency by training its employees to spot opportunities to streamline procedures or methods to save taxpayer money. The program has proved successful.

The Department of Human Services, for example, reduced staff time spent annually on appeals from the elderly and disabled con-cerning personal-care attendants, from an average of 87 days to less than a month. The reduction saved the state about $960,000 yearly.

The Minnesota Housing Finance Agency saved money by trad-ing its stamps and envelopes for emails. By switching its delivery of payment vouchers to residents participating in a federal rental assistance program, the agency garnered more than $16,000 in annual savings.

In 2010, the governor kicked off the Better Government Award to recognize agencies that continue to improve services while cut-ting costs. Some of the winning accomplishments include:• Annual savings of $400,000 from adopting an effective e-filing system for business tax returns.• A 62 percent reduction in the time it takes for road construction projects to receive approval by increasing interagency collaboration.• Annual savings of $630,000 by streamlining the mail processing system to lower the amount of returned mail.

Until 2015, Minnesota’s application of evidence-based policies and return-on-investment analysis was applied informally on an agency-by-agency basis. It saved a lot of money, but it often had more to do with streamlining services and improving delivery, than with any serious cost-benefit analysis. In 2015, Minnesota worked with Results First and began digging into the details by inventory-ing programs to ensure they were both evidence-based and provid-ing a positive return on investment.

The initiative received bipartisan support from both legislative

The Process of Evidence-Based Policymaking


Target

Evaluations

Rigorously evaluate

programs that lack

strong evidence of

effectiveness.

Assess

Programs

Review evidence of

effectiveness of

current programs.

Develop

the Budget

Incorporate evidence

into budget and

policy decisions.

Conduct

Oversight

Ensure programs are

effectively

delivered.

Monitor

Results

Determine whether

programs are

achieving desired

results.


and executive branches and is housed in the Minnesota Manage-ment and Budget office. “It offers strong, reliable data on cost-ef-fectiveness and program quality, informing the work of policy-makers and helping us to provide the most efficient and effective services to Minnesotans,” says Myron Frans, the budget office commissioner.

Today, Minnesota Management and Budget is coordinating with staff from all levels—executive, legislative, agency, counties, key stakeholders—to inventory key programs to ensure the services offered are financially efficient and maximize their potential based on the available evidence.

New York’s Hub Proves itNew York’s Division of Criminal Justice Services is a hub for

criminal justice data tracking and analysis. It examines everything from crime trends to alternative-sentencing programs, then targets funding to the programs with proven records of positive results.

Recently, the division changed the way it invests in alternatives to incarceration. Using the Results First process, the division ana-lyzed which programs were most likely to reduce recidivism and which provided states the most bang for the buck.

Division staff wanted state lawmakers to see how the process can result in evidence-based policies that have a measurable effect, rather than just produce forecasts for the next decade.

The analysis showed that several of the alternative programs were successfully turning lives around, with the potential of saving the state money down the road.

Community-based employment programs, for example, could generate a taxpayer return on investment of $2.58 for every $1 spent. The same held true for cognitive behavioral interventions, which returned $2.52 for every $1 spent.

The results impressed Marc Schabses, the division’s cost-ben-efit coordinator. “We want our state agencies and our Division

of Budget to think of the cost-benefit analysis process as a routine part of going through the program selection and budget assembly process,” he said in a testimonial for the initiative.

Sun Shines on Florida Savings In 2003, at the direction of the Florida Legislature, the Office

of Program Policy Analysis and Government Accountability set out to determine the cost-effectiveness of a new program. It was designed to offer alternative, therapy-based programs to nonvio-lent juvenile offenders in the community, rather than in residential facilities. Armed with research, the office estimated the program, named Redirection, would save the state $1.7 million.

In reality, the amount was much higher, generating an estimated $2 million in cost savings its first year, reduced recidivism, and was so effective it was expanded. Within five years, Redirection gener-ated $51.2 million in cost savings and avoided $5.2 million in costs, in part, because of the resulting lower recidivism rate.

The Department of Juvenile Justice took a series of steps in 2006 to ensure a consistent adherence to evidence, including defining the levels of evidence, developing a guide that ranks programs by effec-tiveness and offering ongoing support to officials as they plan and begin using the new program.

Until 2015, these efforts were largely led by state agency direc-tors and state legislators, but in 2015 Florida Governor Rick Scott (R) issued two executive orders directing the corrections, juvenile justice, children and families, health, and health care administra-tion agencies to collaboratively evaluate and streamline their ser-vices and budgeting.

Officials from the various agencies are working with Results First staff to evaluate programs and direct funding based on what they find. Currently, they are taking an inventory of all juvenile justice programs.

More Than Just One WayAs states increasingly shift toward evidence-based policymak-

ing, there’s no one way to do it—particularly when it’s combined with cost-benefit analyses. For some, the shift begins at the depart-ment or agency level and migrates upward. For others, it begins as an executive order or via legislation and cascades outward, to departments and agencies.

There are times when things will not work out as expected, and times when they’ll turn out better than anticipated—when the find-ings will confound you, but the facts will convince you.

How state lawmakers apply evidence-based methods vary, but they all share the common goal of trying to make government more effective and efficient.

“Evidence-based policymaking can help guide government pol-icy and funding decisions,” says Results First project director Sara Dube. “By focusing limited resources on services and programs that have been shown to produce positive results, governments can expand investment in cost-effective programs, consider reducing funding for ineffective programs, and improve the outcomes of ser-vices funded by taxpayer dollars.”

Even Nietzsche might agree with that, but probably not.

BUDGETING

Applying the ProcessMost states conduct some aspect of evidence-based

policymaking, although far fewer are taking the method to the next, more advanced level.


Define levels of evidence

Inventory existing programs

Compare program costs and benefits

Report outcomes in the budget

Target funds to evidence-based programs

Require action through state law

Number of states with advanced action in at least one policy area

Number of states with only minimum action in at least one policy area

Total states

23 17 40

29 21 50

16 1 17

13 29 42

5 45 50

11 23 34


POLITICS

This article was reprinted with permission from The

Albuquerque Journal. Permission does not imply endorsement.

©THE ALBUQUERQUE JOURNAL

The battle over the budget reaches new heights in the Land of Enchantment.

BY DAN MCKAY

Attorneys for Governor Susana Martinez asked New Mexico’s highest court to uphold her authority to eliminate funding

for higher education and the Legislature itself. But they also stressed that the veto of funding isn’t permanent: It can be restored in some form during a special legislative session, and no one is in danger of running out of money before then, her attorneys said.

The legal filings came in response to a May 5 deadline issued by the state Supreme Court, which, at the time this magazine went to press, was considering an emer-gency petition to invalidate Martinez’s line item vetoes of funding for higher education and legislative agencies.

Legislative leaders sued the governor in April, arguing that she doesn’t have authority to reject funding for an equal branch of government or for educational institutions established in the constitution. They accused her of trying to “effectively abolish” the legislative branch of govern-ment and higher education.

The state Supreme Court scheduled a hearing May 15 for oral arguments.

Attorneys for Martinez said the state constitution empowers the executive branch to reject all or parts of spending bills passed by the Legislature—and there’s no prohibition on using that power the way she did. Furthermore, her attorneys said, the dispute isn’t “ripe” for a court decision yet.

The governor already has called a spe-

cial legislative session—the appropriate venue to craft a new spending plan for higher education and the Legislature, according to the filing, signed by private attorney Paul Kennedy. “The governor never stated that she is abolishing the Legislature or any state educational insti-tutions,” the governor’s response said. “Neither the legislative agencies nor the educational institutions have run out of funds, and there is still time to appropriate funds for the next fiscal year.” The court, then, should wait to make a decision, the governor’s legal team said.

The New Mexico Council of University Presidents also weighed in. The council told the Supreme Court that budget uncertainty is already harming recruitment and reten-tion efforts for faculty and students in some fields. Some of the damage caused by the vetoes is irreparable; some students have already been discouraged. They fear their schools may close or wonder whether they would be better off finishing their degrees out of state, the council said in a friend-of-

the-court brief. The presidents didn’t take sides in how the budget impasse should be resolved but asked for a quick resolution.

The legal tussle comes as Martinez, a Republican, and the Legislature—where Democrats hold majorities in both cham-bers—remain at odds over a state budget crisis, triggered in part by a downturn in oil and gas prices.

State lawmakers passed a $6.1 billion budget package that includes about $350 million in tax increases—necessary, sup-porters said, to avoid damaging cuts to public schools and other state services.

Martinez responded by vetoing the entire tax increase package and using her line item veto authority to remove funding in the budget for higher education and the Legislature itself. She has since said she has a plan to fund higher education with-out tax increases. The state should balance its budget, Martinez argues, without tax increases that will raise the cost of living on New Mexico families.

No matter who wins the lawsuit, Mar-tinez and the Legislature will almost cer-tainly have to negotiate a new budget agree-ment of some kind. If lawmakers win—and the line item vetoes are invalidated—the basic operating budget of the state would be somewhere in the neighborhood of $70 million out of balance, according to one estimate by the director of the Legislative Finance Committee. That’s because the tax increases—vetoed in a separate bill, which isn’t the subject of litigation—are necessary to pay for all the spending.

And if Martinez wins, the Legislature and governor would still have to agree on how to fund higher education and legis-lative agencies. The governor has called a special session of the Legislature on May 24 to consider the budget and taxes. The fiscal year starts July 1.

New Mexico’s Veto War


Some thoughts on Supreme Court Justice Neil Gorsuch’s contentious confirmation process

BY LISA SORONEN

Will the charged environment in which Justice Neil Gorsuch was confirmed shape his votes

on cases affecting the states?Justice Neil Gorsuch’s confirmation

process to replace the late conserva-tive Justice Antonin Scalia on the U.S. Supreme Court was one of the most politi-cally contentious in recent memory.

It is difficult for those of us who treasure our democracy, and our legal system in particular, to accept that Supreme Court justices, not to mention regular everyday judges, are chosen more for political rea-sons than for their ability to dole out the law evenly, intelligently and objectively—with justice resulting in the end.

Beneath the thin veneer of choosing someone with stellar academic credentials who has had an impressive legal career, politics always plays a role when it comes to selecting Supreme Court justices, but maybe never so large a role as it did in the selection of Gorsuch.

From Senate Republicans vowing not to hold confirmation hearings no mat-ter who then-President Barack Obama nominated, to Obama baiting them by nominating Merrick Garland, a very qualified, moderate, white 64-year-old male—normally an acceptable candidate for Republicans—to Democrats playing the filibuster card, to Republicans follow-ing through on their threat to deploy the “nuclear option,” the process was full of party-line stances.

Candidate Donald Trump, after seek-ing input from two conservative organi-zations—the Federalist Society and the

Heritage Foundation—came up with a list of 21 potential nominees. All but one of them were current judges with long track records, to avoid what some call “another Justice Souter,” who was thought to be a conservative when nominated in 1990, but who more often joined the liberal justices in deciding cases.

Gorsuch was confirmed only after Republicans lowered the number of votes needed for Supreme Court nominees to advance, from 60 to a simple majority. Dubbed the “nuclear option,” the new threshold makes it easier for nominees to be confirmed without wide bipartisan support.

Will the fact that Gorsuch was con-firmed in such a politically charged envi-ronment affect how he views the institution or his role in upholding its Integrity? Will it influence how he votes on the court?

No matter how he votes or what he writes, it will be impossible to know his motivations. When it comes to cases affecting states and local governments, his votes may have more to do with how he feels about federalism, agency deference, and environmental regulation and protec-tion than whether he is a liberal or a con-servative or whether he feels any loyalty to

the president who nominated him. He soon will be tested with some big

cases. At some point the Supreme Court will rule on the legality of the Clean Power Plan and the “waters of the United States” definitional rule.

Court commentators have speculated that Chief Justice John Roberts voted to uphold the Affordable Care Act’s individ-ual mandate to protect the institutional integrity of the court more than to validate the federal law. Roberts may have feared the court would have looked too partisan if the five conservative-leaning justices, all appointed by Republican presidents, struck down the Democratic president’s signature piece of legislation.

A closer look at the chief justice’s record reveals subtle signs that could indi-cate he is genuinely concerned about pre-serving the court’s role as the nonpolitical branch of government. Will Gorsuch feel the same?

Roberts rarely joins the concurring and dissenting opinions of his more conserva-tive colleagues. He could be simply less conservative than they are, or he might realize the court will appear less political if he (or any of the justices) is more mod-erate. The chief justice assigns the writing of opinions that he joins. I can’t help but believe that when he forgoes writing opinions in relatively important cases and assigns himself small, racial-bias cases, as he did this term in Buck v. Davis and last term in Foster v. Chapman, he is trying to convey a message that eradicating racial bias is a bipartisan issue that conservatives care deeply about too.

I expect Gorsuch, like Roberts, will be a reliable conservative justice. His decisions may or may not reflect the acrimony of his confirmation process, or the concern for the court as an institution that Roberts’ decisions have. But we will have plenty of time to get to know him—he’s just 49 years old and could sit on the court for more than 30 years.

The opinions expressed are the writer’s and not necessarily those of NCSL.

Confirmation by Fire

PH

OT

O:

C-S

PA

N

OPINION

Lisa Soronen is the executive director of the State and Local

Legal Center in Washington, D.C.


FINAL WORD

Joseph “Joe” Souki was born in 1933 in the sugar plantation town

of Pu’unene on the island of Maui. In his youth, Souki worked in

the sugar cane fields and enjoyed boxing and aikido. He served in

the Army and graduated from Woodbury University in Southern

California before returning to Maui. There he worked with the anti-

poverty program Maui Economic Opportunity, built a real estate

business and became active in government. He was first elected to

the Hawaii House in 1982 and served as speaker from 1993 to 1998

and again from 2013 to 2017.

You’ve served in the Legislature for 35 years. What’s changed?

The members have changed in their thinking and ideology.

They’ve become more progressive, more environmentally

concerned and more independent. They’re better

educated. On the negative side, they also come in

younger, with less civic and worldwide experience.

What’s the best advice you give to young, new

legislators? First, listen. Listen and then ask

questions. Learn the priorities of government and

of the Legislature. And to have integrity—that one’s

word is golden—and to look at issues on a broader

scale and to compromise at times if need be.

To what do you attribute your impressive

longevity in the Legislature? A lot is good fortune.

I started quite late in my life. I was in my late 40s, and I

remember a press person telling me, ‘Aren’t you getting

in a little late?’ I said, ‘Well, maybe, but I’m coming in

running.’ And I did. I moved up quite rapidly in my first

few years. My second year I was the vice chairman of

the finance committee and in my third term I was the

chairman. In my sixth term I was the speaker of the House.

It was a bit of luck and having associates believe in me.

In the three-plus decades you’ve served, what has

been your most difficult moment, and what is your

proudest accomplishment? What stands out is the first

time I lost my speakership, and that was after six years. I

had close friends who weren’t satisfied with the work I was

doing. They had a coalition and I was told to take a vacation.

That was kind of a low point. But I rebounded very quickly,

and I adapted to the new leadership and looked for new

challenges as a member and as a committee chair. As

for accomplishments, when I first came into the House,

the members in the committees had no right to speak or vote on issues.

I changed all of that and made it so the chair needed to have votes from all

the members before he could pass a bill out of committee. I provided more

transparency and empowered the members to feel good about themselves

and to make decisions they think are worthwhile.

What was it like growing up in Maui? I belong to a generation that

lived on the plantation governance, so to speak. You lived in an old

plantation home. Whenever it rained you brought in the bucket

brigades. But what I’ve learned through that is that people even of

modest earnings can be very loving and helpful to each other. I’ve

learned to appreciate that kind of mentality, especially with the

laborers—they work hard and take care of their families.

When you were a kid, what did you want to be

when you grew up? I was influenced by my dad, who

was a strong Democrat. We used to listen to FDR and

the “fireside” speeches on the radio and I was very

impressed with all of that. And that possibly led me

to eventually become a Democrat and a leader in the

Democratic Party.

Who were your role models in government? I had

two people and they both were speakers of the House

and they both were from Maui. Manuel G. Paschoal was

this rather large person with a huge voice coming out

to speak for the public about why he thinks they need

more help, they need more water, the roads need to be

repaired. I listened to this man and I said, ‘You know,

maybe someday I want to be like him, where I could

have this strong influence over the public in making the

desired changes.’ The second was Elmer Cravalho, who

was considered one of the better speakers the state has

ever had. He led the state from territory to statehood, and

he was known for his skill as a parliamentarian and ushering

legislation.

What do you do to unwind from work? I don’t unwind!

At the end of the day I like to sit with my close friends, and

maybe get into a nongambling card game and share some

discussion. That helps me unwind a little bit.

What would surprise people most to learn about you? That

I’m younger than I look!

What final words would you like to share? The final word

is to enjoy your job. Be cognizant of the needs of the people

around you. Everybody has something they need, everyone

has a problem, even though they don’t necessarily bring it out.

Have sympathy for people, care for people.

Joseph M. SoukiSpeaker Emeritus, Hawaii House

Jane Carroll Andrade, a contributing editor to the magazine, conducted this interview, which has been edited for length.

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on the edge 2017 4 state legislatures short takes on ncsl news ncsl epertise “federal law...

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