• August 1, 2022

State Legislatures are 140X More Active Than Congress

Congress has passed about 160 bills and resolutions since they were sworn in last year. State legislatures passed more than 23,000 this year alone. If you are not monitoring the states, you are only seeing part of the picture.

Members of Congress have passed about 160 bills and resolutions since they were sworn in last year, according to Capitol Canary data. Yet outside Washington DC, legislative activity is far, far higher. Legislatures in all 50 states collectively passed more than 23,000 bills and resolutions this year alone.

While the number of bills is a crude measure—a single major bill can bring about massive policy changes, while others do very little—the lessons for government relations teams are clear. If you are not monitoring state legislation, you are only seeing a small part of the policy landscape. And if you are not engaging in the states, you are exposed to risk and missing opportunities.

As the National Conference of State Legislatures’ annual summit kicks off this week in Denver, it is a good time to reflect on the idea that states are taking on a heavier load in the post-pandemic world—and that your team should begin preparing for next year’ state legislative sessions between now and the end of the year.

States Carry a Heavy Legislative Load

States have always carried a heavy regulatory burden. For example, insurance is primarily regulated at the state level. Issues like elections, education, housing policy, gun control, criminal justice and occupational licensing are all heavily regulated by the states, as are many aspects of issues like transportation, infrastructure, environmental policy and health care. Few companies, associations and nonprofits can afford to ignore what state lawmakers and regulators are doing.

Generally speaking, the system makes sense because different parts of the country sometimes require different systems. For example, it makes sense that gun laws might be different in Texas, home to the largest number of farms and cattle in the U.S., then they might be in New York City or Los Angeles. The downside is that Americans are often subject to a patchwork of different laws. For example, someone driving from Maryland, through Washington DC and into Virginia would be subject to three different sets of gun laws.

The legality of marijuana is one of the best examples of America’s patchwork. Congress has thus far declined to pass a bill changing the legal use of marijuana nationwide, instead maintaining a federal ban on the substance. At the same time, many states have passed laws of their own that directly conflict with the ban. Legislatures in 19 states and Washington DC have legalized recreational marijuana in the last decade, though specific rules differ in each. In addition, 31 states have decriminalized marijuana, making jail time less likely for possession and first offenses, but, again, the specifics vary. How all these state laws will comport with the existing federal ban remains to be seen.

On almost every issue, variation in state law—and the annual flood of changes to those laws brought about as state legislatures do their work—presents a persistent challenge to government affairs teams.

The Load May Be Increasing

Often, federal actions produce more work for state legislatures. Perhaps the best example is the U.S. Supreme Court decision earlier this year to eliminate the federal right to a legal abortion. The decision left reproductive rights in the hands of the states, many of which are now busy passing laws that will severely impact womens’ rights.

In addition, the resulting patchwork goes far beyond the simple question of legality. For example, 32 states require abortions to be performed licensed physicians; 19 require that they be done in a hospital; 16 allow state funds to pay for medically necessary abortions, while 33 do not; 12 restrict private insurance plans from covering abortion; 17 require counseling; and 24 require a waiting period, according to an analysis by the Guttmacher Institute, an organization dedicated to advancing reproductive rights. For organizations that want to advocate on abortion rights, or simply help their employees comply with local laws, that’s a lot to track.

Of course, the federal impact on states, and the resulting variations in law, stretches far beyond reproductive rights. When the Supreme Court struck down a 100-year-old New York law restricting the ability to carry a gun in public, it impacted five other states with similar laws and changed how states may regulate guns moving forward. When Congress appropriated billions of dollars for pandemic relief and infrastructure renewal, it gave states a great deal of work to do in order to capitalize on the federal money.

To track the extremely complicated changes taking place in state law, savvy organizations will begin their planning months before next year’s sessions begin.

Now is a Good Time to Prepare

Legislative sessions will start in almost every state, as well as Washington DC and in U.S. protectorates like Puerto Rico, in the first quarter of next year, with most beginning in January. There will also be hundreds of new officials taking office next year, after legislatures in 46 states and gubernatorial seats in 36 states face voters in November. Government affairs teams will have a great deal of work to do next year, both building new relationships and tracking legislation.

Advocacy in the states is also different from advocacy in Washington DC. Unlike Congress, where bills can take a long time to pass and are often covered closely by media, state legislation can go from introduction to a floor vote in a matter of days or weeks, often without any media coverage at all. In a state where hundreds of bills pass in just a few months, state news outlets cannot cover everything. Organizations that are serious about state advocacy will focus on adding the capabilities they need to track the action and respond quickly. Here are some priorities:

  • Professional Tools. To keep track of relevant bills, a professional legislative tracking system is transformative. The ability to track keywords and get alerts via email means bills don’t get missed, and automation reduces the time-intensive manual work that comes with free tools and unsophisticated apps. To get a system in place and have your team trained up, start your effort as early as you can this year.
  • Additional Staffing. Many organizations arrange to have additional staff on hand for legislative sessions. This might be new hires, departmental transfers, staff from state offices, or even interns and fellows. However you engineer it, it helps to have extra bodies on hand to do research and help carry the load.
  • Rapid Response. Text messaging, contact directories and other tools that allow your organization to mobilize lobbying and grassroots advocacy quickly can be extremely helpful in a fast-moving environment. This is another area to secure this year, so your team has time to become fluent with the tools.

There are many other things that can be added to this list, such as updating policy priorities, creating a communications plan in relevant states and revising messaging. Focus first on the basics and progress from there. Organizations that get moving will have months to prepare, and will be more confident when state legislative sessions kick off in January. But that means starting early. The time to begin is now.