Duck, Duck, Lame-Duck – Winning Even in Defeat

December 19, 2018

In his 1932 dissent in New State Ice Co vs. Liebmann, Justice Louis Brandeis popularized the concept of individual states serving as the laboratories of American democracy. He wrote, “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” If you have states trying different ideas and policies then there can be a marketplace of ideas and other states can implement successful concepts and or improve upon ideas that fail. We have seen states implement or take note of policies in a vast number of areas such as health care, poverty, education, and even when it comes to playing politics.

Back in the 2016 lame-duck session, North Carolina Republicans enacted bills to curb the power of incoming newly-elected Democratic Governor Roy Cooper. Republican Governor Pat McCrory and the Republican controlled State Legislature enacted Senate Bill 4 and House Bill 17 that curtailed the powers of the incoming Governor. Some of the major changes enacted in House Bill 17 were to cut the number of government positions a new governor can appoint down to 425 from 1,500; require governor cabinet appointees to be confirmed by the state senate; and limit the number of appointments the governor can make to the State Board of Education and University of North Carolina Board of Trustees. Some of the major changes in Senate Bill 4 were to change the state’s nonpartisan Supreme Court election process to a partisan one where nominees would have a party affiliation on the ballot; require cases to go through a full court of appeals—controlled by Republicans—before going to the state Supreme Court that has a Democratic majority; and modify the state and county board of elections’ appointments to dilute the power of the Governor. Some of the changes have been challenged in court by Governor Roy Cooper and have led to a confrontation between the Democratic Governor and a Republican supermajority state legislature.

The North Carolina lame-duck experiment caught on and is being replicated in two more states following the 2018 mid-term elections, Wisconsin and Michigan. In Wisconsin, Republican Governor Scott Walker and the Republican controlled State Legislature enacted Senate Bills 884 and 886 that aim to limit the powers of the incoming Democratic Governor Tony Evers and the incoming Democratic Attorney General Josh Kaul. The laws aim to prevent the governor from making changes to the state’s work requirement laws around public assistance programs for any federal waivers the state has already received without approval from the legislature; prevent the governor from making certain appointments over commissions like the Wisconsin Economic Development Corporation; limit the ability of the governor or attorney general from withdrawing from multistate lawsuits and allow lawmakers to intervene in lawsuits if the attorney general does not; and requires the attorney general to get approval for any settlements from the Legislature’s budget committee among some of the major changes.

In Michigan, the Republican controlled-legislature is considering several bills aimed at curbing powers of incoming Democratic Governor, Attorney General, Secretary of State and even limiting citizen ballot initiates. Among the changes, the laws limit the power of the Attorney General from overseeing campaign finance issues by creating a bipartisan commission; allowing the legislature to intervene in legal cases if the Attorney General does not; reduce the minimum wage and limit paid sick time that came about from citizen petitions; and limit the ability of the governor to enact stricter environmental rules and other state regulations. Current Republican Governor Rick Snyder has signed bills aimed at the citizen led initiatives on minimum wage and paid leave and is still deciding on whether to sign the other bills being passed by the legislature. Whether Governor Rick Snyder joins his Wisconsin counterpart in signing all the bills, it is very likely that there will be legal challenges stemming from these enactments as have happened in North Carolina.

Lame-duck politics is nothing new and has been done by Democratic-led Legislatures as well. However, the extent and reach of legislative actions in North Carolina, Wisconsin, and Michigan go further than other past examples in recent times. Such display of legislative prowess can embolden other lame-duck sessions should a majority party lose State-wide elections in the future. Whether these sorts of legislative actions start to gain more traction across other laboratories in the Union, these sorts of experiments will act as a stress-test on our American democracy.

REUTERS/Rebecca Cook

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