Policy Trends in the States
Now more than two months into the 2020 legislative sessions, I asked the ALEC policy team to put together a short summary of some of the most important issues and early trends we are watching this year. Below, you will find a message from each of our task force directors, across all of our task forces.
As you continue to plan your policy agenda for 2020, please do not hesitate to reach out whenever ALEC can be helpful to you. Whether it is assisting with policy or legal research, providing expert testimony, or hosting policy briefings, we are happy to provide you with nonpartisan research and analysis on policy issues in your state.
We are seeing state governments giving more power to tax and regulate in Virginia and Colorado. Topics such as drones, vaping, new taxes and minimum wage laws are in the news – to name a few. This is creating a patchwork of regulations and taxes that individuals and businesses must navigate to stay within the law. It will create uncertainty in the marketplace and has the potential to strangle individual liberty.
– Jon Russell
Missouri is considering a host of tort reform issues this year. First is considering a measure that would expand sovereign immunity and help prevent the state from paying excessive costs in punitive damages. SB 591 passed out of the Senate Government Reform Committee on January 22 via a 4-2 vote and has been placed on the House calendar for February 17. Another measure Missouri is considering would provide for transparency of asbestos funds. SB 575 was developed to fight fraud and abuse in asbestos litigation to preserve resources for future plaintiffs with legitimate claims. It also has been placed on the Senate calendar for February 17.
The West Virginia legislature has taken a positive step to protect the rights of individuals who donate to nonprofit organizations. The Protect Our Right to Unite Act passed out of the Senate via a 34-0 vote and has passed the House via a 75-22 vote, which constitutes a veto-proof majority. The bill would prevent the West Virginia government from releasing identifying information of individuals who donated money to certain nonprofit organizations.
– Ronald J. Lampard
Following Arizona’s lead, a number of states are considering occupational licensing recognition and reciprocity bills this year. Reciprocity and recognition bills can take many forms, but in general, they lower barriers created by occupational licensure for people who move across state lines. The Arizona reciprocity bill allows workers to use their license from another state when applying for a license in Arizona.
Unfortunately, some of these bills leave in place barriers to entry and duplicitous regulations that they were meant to lower. Several states have put forward policies that only recognize previous experience for military spouses, while requiring others to go through normal licensing procedures. Other recognition bills include residency requirements that inhibit workers who live outside the state from utilizing the new streamlined procedures.
– Michael Slabinski
At the state level, the left and right are allying on antitrust and privacy laws. Forty-eight state attorneys general have allied with the DOJ to launch antitrust investigations into Google, Facebook, and Amazon—even though they are not the only participants in markets (usually the predicate for antitrust investigations). States like Washington, New York, Maine and others are debating privacy proposals that would add significant costs to doing business.
States are also looking to deliver broadband to unserved and underserved areas. These unserved areas tend to be rural, where the cost of deployment is high. In the past few sessions, several states have updated their laws to remove barriers to 5G deployment. Thus far, typical grant programs seem to be the norm in states like Arkansas, Missouri, Kansas, Tennessee and Idaho, to name a few. With the lack of creativity in the grantmaking process, there is risk of wasting taxpayer money. The emphasis ought to be to encourage creativity and to try and think through ways of injecting both transparency and accountability into the grants, as well as taking a close look at what barriers truly exist when deploying broadband.
Some state legislatures are also targeting the gig economy. Examples of laws targeting the gig economy include Wisconsin (home sharing), Arizona (home sharing), New York (TNCs, home sharing, labor), Illinois (labor) and Virginia (more local control). This can be in the form of labor laws, increased tax burdens and tax reporting burdens on home sharing, or implementation of Wayfair. Proposals from the example states above include providing municipalities carte blanche to inspect houses and receiving financial data from people renting rooms through home sharing services, to attempts to implement Wayfair without any of the nexus or simplicity requirements demanded by the Supreme Court.
– Jonathon Hauenschild
This year, we are mindful of states that are in the process of reducing the number of crimes. North Carolina has gone through the process of simplifying its criminal code and Maryland is currently undergoing that process. The efforts in MD were led by Senator Michael Hough, the Criminal Justice Task Force Chairman. In addition, Maryland is in the process of fixing a current law that makes it a crime punishable by up to 90 days in jail to operate a lemonade stand without all the proper licenses and permits. Fortunately, the legislature is in the process of addressing this issue with MD HB 52.
Unfortunately, Maryland is creating new unnecessary laws that carry significant penalties. For example, the Maryland Senate passed a law that would provide for a $250 fine for releasing a balloon into the air. Like the lemonade stand law, this will primarily target children and is unnecessary.
Several states have introduced bills that would legalize sports betting, including Arizona, Kentucky, Maryland, Oregon, Virginia, and Washington. Virginia is likely to pass legislation authorizing sports betting, as a package of bills have been approved by the respective chambers in which they originated. The Kentucky House Licensing, Occupations, and Administrative Regulations Committee reported the bill favorably and it is currently awaiting a full vote of the House. This issue will continue to trend in the states for the next several years, as more states will consider legalizing sports betting.
– Ronald J. Lampard
The ALEC model FORUM Act has remained popular among legislators in Georgia, Mississippi, Missouri, Wisconsin, Ohio and Utah. Nine states considered or passed a FORUM Act-like bill last year, it has been bipartisan. In some states it has passed through committees and chambers unanimously (like in the Ohio Senate), and in other states, the ACLU has been supportive (Montana and this year potentially in Georgia). Typically, the only groups opposed are the universities.
– Scott Kaufman
Across the country, states legislatures are considering of cap and trade programs that would tax energy use. Cap and trade programs restrict emission levels from sectors of the economy and require businesses in those sectors to buy credits from the government. Effectively, cap and trade programs function like an energy tax on consumers and businesses trying to power their lives.
On the East Coast, a number of states have discussed a new program called the Transportation and Climate Initiative (TCI). TCI is a cap and trade program that would dramatically raise the price of gasoline. Unlike a traditional gas tax that funds roads, the TCI revenue would be used to subsidize electric vehicles and charging stations. Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Virginia have all been mentioned as possible participants. Governor Sununu announced that New Hampshire would not be joining the TCI scheme under his watch. Other Northeast governors have expressed skepticism, including Connecticut Gov. Ned Lamont.
– Grant Kidwell
Several states are calling for the creation of the National Federalism Task Force. The task force would address federal encroachment over state sovereignty, ranging from unfunded federal mandates to the excessive federal ownership of land in America’s West.
This legislative session, the National Popular Vote Compact targeted Virginia and possibly later this year, Missouri. Following the 2020 elections, NPV will likely pursue their legislation in Michigan and Minnesota.
With the national debt exceeding $23 trillion, there is no better time to be discussing the need for an Article V Balanced Budget Amendment. In order to meet the threshold needed, six states would need to adopt a resolution and Mississippi would need to update its current application so it could be aggregated with the others.
– Karla Jones
Medicaid is a major concern for most states. States that have not expanded their eligibility requirements under the ACA are under a lot of pressure to do so. In some states, like Missouri, citizens are trying to circumvent the legislature by expanding through ballot initiative. Unfortunately, paying for the state’s portion of Medicaid expansion does not seem to be a concern of proponents. In many cases, they are proposing a provider tax to fund the cost of expansion. The federal government is currently funding expansion at a 90% rate, but it is unclear if that will continue past this year.
The cost of prescription drugs is another big issue, and many of the proposals go against ALEC model policy. Two of the most frequent proposals are drug importation and price-fixing (sometimes disguised as a “transparency” bill).
Finally, there is legislation to repeal state Certificate of Need (CON) laws in several states. This legislation would open up the market for new providers and improve patient access.
– Brooklyn Roberts
Cybersecurity and election security have become critical concerns. Cybersecurity is a term that encompasses many applications. It may mean the nature of the threat—cyber espionage, ransomware, denial of service, middle man attacks, phishing and more. It may mean the strategies employed to counter attacks—resilience, hardening of networks and so on. Regardless of the meaning, states and the private sector will be responding to bad actors. The proposals from states run the gamut, from authorizing cross-functional working groups, to funding better and more secure networks, to funding Chiefs Information Security Officers (CISAs) for state agencies.
Elections are vulnerable in two ways: voting systems and cognitive weaknesses. The voting systems have been vulnerable for a while, and in 2016, foreign actors probed the state election databases of all 50 states. While the federal government is convinced that the foreign actors did not alter the outcome of the election, the possibility remains that they could have or they could have been probing for future elections. Regardless, states bear some responsibility and are acting to harden voting systems.
Cognitive weaknesses relate to ways American process information and requests. Cognitive weaknesses also include foreign actors’ attempts to access campaign databases, email accounts and more through phishing attacks and other sophisticated means. Some states are combatting the cognitive weaknesses through expansive (and likely unconstitutional) proposals, such as Maryland and Washington, demanding that online political advertisements jump through a number of reporting hoops. States, for the most part, are focused on the cybersecurity problems. But a number of experts and academics are calling for ways to educate citizens on how to consumer media, for government regulation of social media, and so much more.
– Jonathon Hauenschild
As the federal Tax Cuts and Jobs Act and strong economic growth has created record state level revenues, several states responded with their own tax cuts or utilized the revenue to pad their state rainy day funds. Now, the national emergency due to COVID-19 has highlighted how some states are better prepared than others to deal with the uncertain economic conditions.
This serves a reminder for states to implement fiscally responsible reforms. Whether it is addressing unfunded state pension liabilities (which total nearly $5 trillion across the 50 states), implementing priority-based budgeting principles to increase transparency in spending, or passing a Taxpayer Bill of Rights (TABOR) to keep tax and spending levels in check, there are a myriad of ways that legislators can become better stewards of their constituents’ tax dollars. The ALEC State Budget Reform Toolkit is a great resource, chalked full of successful policy case studies.
– Lee Schalk
As you can see, it has already been an extremely busy year for state policy issues at ALEC. We already have many exciting projects, publications and events planned for the remainder of 2020. Please let us know whenever ALEC can be helpful to you.