This is one of the series of podcasts reflecting on the 50th anniversary of NCSL. For this episode, our focus is the legislative institution and how today’s legislatures evolved over the last 400 years. Our guests include a historian of legislatures and three people who’ve spent considerable time in the legislature and given a lot of thought to the institution.
This is one of the series of shows this year and next reflecting on the 50th anniversary of NCSL. For this episode, our focus is the legislative institution and how today’s legislatures evolved over the last 400 years.
Guests include historian Pev Squire, who sketches out how legislatures developed both from the colonial assemblies and from the territorial legislatures. We also spoke with three people who have spent considerable time in legislatures and given a great deal of thought to the institution itself— Kentucky Senate President Robert Stivers, Colorado House Speaker Julie McCluskie and Raul Burciaga, who recently retired as director of the New Mexico Legislative Council Service. They reflected on where the institution is now and the challenges it will face in the next 50 years.
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Ed: Hello and welcome to “Our American States,” a podcast from the National Conference of State Legislatures. I’m your host, Ed Smith.
PS: When you look at state legislatures in the 20th century, the big change was their professionalism. Ah most places salaries got better in some states, considerably better. They went from meeting only biannually to meeting annually in almost all of the states. Their session lengths were allowed to get longer. And then, of course, they developed staff.
Ed: That was historian Pev Squire, one of my guests on this special podcast observing the 50th anniversary of NCSL. This is one in a series of shows this year and next reflecting on the organization’s history. On this episode, our focus is the legislative institution, the legislature, it’s structure, rules and procedures evolved on the last 400 hundred years since the first administrative assembly met in Virginia in 1619. To start, I talked with Pev Squire. He is the author and coauthor of numerous books about state legislatures and literally wrote the book on how legislatures in the U.S. became what they are. Then I will be speaking with Kentucky Senate President Robert Stivers, Colorado House Speaker Julie McCluskie and Raul Burciaga, who recently retired as Director of the New Mexico Legislative Council Service. All of them have spent significant time in the legislature and they have given a great deal of thought to the institution itself.
Pev Squire started by explaining how the first colonial assemblies, which predated legislatures, were formed. And if, like me, you thought the British Parliament was the model, he explains that assemblies evolved in different places for different reasons over a period of more than 130 years.
PS: The Colonial Assemblies are an important part of the story of American legislatures and probably a little bit misunderstood. Their history really extended from 1619 when the first one assembled in Virginia to 1755 when Georgia had its first assembly. The were devised during a long period of time. Because of that, they were created for different reasons by different people at different times under different sort of legal mechanisms.
Ed: Those early assemblies brought together all of the freemen, men who were independent of the companies that often ran the colonies, along with the governor’s council and the governor to make decisions for the community. But the notion of a representative assembly as a more practical approach soon took hold.
PS: They wanted to all be able to participate, but it turned out reasonably quickly that it was an inefficient use of people’s time and it created bodies that were too large to be sort of good decisionmakers. And there were vulnerabilities when you took people away from settlements on the frontiers. They became representative bodies pretty quickly.
Ed: Another development that seems routine to us today is the formation of bicameral legislatures, a feature of all but one of our modern state legislatures. But once again, if you think the model for bicameralism was the British Parliament, Squire sets us straight. It turns out the story has less to do with the House of Lords and a lot more to do with a pig.
PS: Bicameralism developed in the colonies out of these initially sort of unicameral bodies where the governor, council and representative assembly members all sat together. And the first one where we know the storyline and we know when it emerges is in Massachusetts. It occurs because there is a difference between the counselors and the deputies as they call themselves, the representative assembly members. And they had different perspectives. The deputies were elected. The counselors were appointed. They represented somewhat different parts of society. They had to make decisions together and sometimes that led to serious disagreements. And the one that led to them start sitting apart was over a legal case involving a pig that had left a widow’s property and wandered over to a sea captain’s land and the sea captain killed the pig, which was his right because it was in his crops. But then the widow sued and so this went to the general court. The counselors tended to decide with the wealthy sea captain, while the deputies were more sympathetic to the less well to do widow and then that just sort of was the final straw where they decided through a series of decisions to literally sit apart and begin to make decisions where each of the two groups the deputies or counselors would have to agree for anything to become adopted by the overall general court. And so that’s the first appearance of bicameralism.
Ed: Once the original colonies became states and then wrote their own constitutions, they largely settled on a bicameralism legislature model in a fashion most of us today would recognize.
PS: The big sort of carryover from the … Congress is to the new state legislatures in the lower houses, they were larger bodies than the colonial assemblies had been and they were more representative because for the first time a lot of the settlers on the periphery, particularly in the western part of these colonies now states, were given seats in the new state legislature. So, that’s how Daniel Boone becomes a member of the house of delegates at Virginia representing what is now eastern Kentucky.
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Ed: The committee structure another critical feature of the legislative process was with us from the very beginning Squire says and that did come from the British Parliament.
PS: Committees had been literally part of American legislatures from the beginning. And all of the colonial assemblies used ad hoc committees and that had been brought over from the House of Commons. The first person who served as speaker in Virginia in 1619 had actually been a member of the House of Commons and so that’s how they brought over rules and that initial complete structure. The big change you see during the colonial era is that in many, but not all of the colonies, they did develop standing committees.
Ed: Of course, only 13 states emerged from the original colonies so how did those legislatures in the other 37 states evolve? Quite differently than the original 13 it turns out.
PS: The one thing that they, the Confederation Congress, the Congress that was under the Articles of Confederation, did successfully in terms of domestic policy was pass the Northwest Ordinance, which created a process that would bring new territory into the Union and allow new states to be devised. And most of the states that come in after the original 13 come in through this territorial process.
Ed: From a structural perspective, there has not been a great deal of change in legislature since the late 18th century. Most were bicameral back then and today all but Nebraska still have the two-chamber structure. There certainly were changes to legislatures, but most of those were in the forms of limitations placed on legislatures by revised state constitutions. But Squire points out that does not mean legislatures remained static.
PS: When you look at state legislatures in the 20th century, the big change was their professionalization. In most places, salaries got better, in some states considerably better. They went from meeting only biannually to meeting annually in almost all of the states. Their session lengths were allowed to get longer. And then of course they developed staff. And this is one area where the states again led Congress. Congress was the first to really give members personal staff and the states lagged well behind there. But in terms of informational resources, institutional resources, they developed at the state level.
Ed: So, thanks to Pev Squire for bringing us into the 20th century and towards the time when NCSL was founded in 1975. Most observers will agree that there have not been radical changes in the institution in the last 50 years, but that’s not to say that the institution has not seen changes from the transition to annual sessions to scrambling to operate during the pandemic. To better understand how the institution has responded to the challenges of the last 50 years, I asked Stivers, McCluskie and Burciaga to share their thoughts on where the institution is now and the challenges it will face in the next 50 years.
People in the legislative world often like to share the maxim if you’ve seen one legislature, you’ve seen one legislature. But in fact, as we heard from Squire, legislatures as institutions share a number of things in common. One of them is a commitment to a deliberative process. If the ethos of our time is move fast and break things, the attitude in the legislature is quite the opposite. Move with caution. Be transparent and be keenly aware of the consequences—intended and unintended—of legislation. Senate President Stivers makes the point.
RS: Having the institution, the ability to have committees, to have time to be deliberative, to have process that looks at things is really what makes the process of making legislation very good or as good as it can be. It’s never perfect because you do have different points of emphasis and pressures. But having that institution surrounding you with the research the deliberative the nature of it the perspectives coming around. You just don’t walk in here in a day or two and do something. You need that institutional process.
Ed: Speaker McCluskie pointed out that in Colorado there is a requirement to guarantee transparency in bringing a wide range of input.
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RB: Years ago, a bill was passed called gavel and gavel required that every bill that is presented to the speaker be introduced, have a fair hearing. It is allowed to see the light of day. Allow our community members, allow our public to engage and provide testimony. And that’s an important first step in the process in the fact that we are bound to ensure that regardless of politics, every policy will have that moment. And then bills proceed through a process that ensures a very thoughtful opportunity for debate.
Ed: And Burciaga emphasized that one of the challenges for legislatures is to resist the urge to go faster.
RB: There are a lot of people who would like to see government and particularly the legislature act more quickly, act more like a business if you will, that is quick to make changes. Quick to identify things that need to be addressed and move forward. But when you are operating an institution like the legislature, I think it is important to realize that you are governing, you are setting government for an entire state. At the federal level, an entire country. And that’s not something that should be taken lightly and should be done from that perspective of having to do something immediately.
Ed: Another commonality of legislatures is the invaluable role of legislative staff. In fact, the growth of nonpartisan staff starting in the early 20th century was one of the most far-reaching changes to the legislative institution in that time. Here’s Burciaga again.
RB: I think what most state legislatures realized is that it was important to have professional staff who could provide not simply nonpartisan information, but objective information. Information that could provide legislators with what they needed to know about issues that were affecting that particular state, their particular district.
Ed: Stivers agrees noting that staff helped him from when he very first joined the senate.
RS: Staff was critical when I got here because they help educate you. They help keeping the process going. They at many times are a liaison back to your constituents for various problems. They are very good you know they are very critical in focusing on doing your job both dealing with legislation versus the constituent dealing and information back to your districts.
Ed: Another force affecting legislatures and everyone else in the last 50 years has been the rapid and relentless advance of technology. Everything from desktop computers to social media to artificial intelligence. McCluskie thinks an upside of technology is the ability to make the legislature even more transparent and accessible to constituents.
JM: People can watch their elected member in action. Access via email, for example, so easy to quickly weigh in on a piece of legislation before the body. I can hear from hundreds if not thousands of people in a given hour where they are at on something that is before me and what a wonderful tool that is to be able to collect that kind of honest input.
Ed: Stivers agrees and sees technology as the biggest change that’s come to the legislature in recent decades.
RS: The biggest impact on the institution is technology. Now individuals have the ability to go online and see legislation and see amendments and see who the sponsors are when it took them probably six months to figure it out back home 25 years ago. And 50 years ago, it took them even longer than that because the velocity of information has so increased. But it’s a two-edged sword because some of the information you have is moving fast. But some of the information people are putting out is not necessarily accurate and that could be deliberate or intentional or sometimes unintentional and that creates problems in this day and age of fast-moving information. And I think that’s one of the biggest challenges to legislatures.
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Ed: Squire helped us see the challenges the legislative institution faced in the first centuries of the republic. Stivers, McCluskie and Burciaga are all clear-eyed about the challenges the institution has seen in the last 50 years. And they all seem to share the perspective as expressed by Burciaga about the challenges in the coming decades.
RB: There is a lot of division in this country right now. People define it as being polarized hyper-partisan and that’s true. That has always been the case in this country sometimes more than other times, but it was no different 250 years ago. It was no different in the middle of the Civil War. In the 1960’s there was a lot of concern with how government was operating, but we were in the middle of social change, social unrest and war. But in all of those situations, the institution stayed. They were challenged and people learned that through those institutions, through the legislature the executive and the judicial, we were able to continue moving forward. I think it is important for people to remember that the goals that were set about 2 ½ centuries ago are still very real, are still important and what legislatures should try to do.
Ed: I have been talking with historian Pev Squire, Kentucky Senate President Robert Stivers, Colorado House Speaker Julie McCluskie and Raul Burciaga from New Mexico about the history, the future and the challenges to the institution of the state legislature.
We will present additional podcasts observing NCSL’s 50th anniversary in the New Year. Thanks for listening.
You can check out all the podcasts from the National Conference of State Legislatures by searching for NCSL podcasts wherever you get your podcasts. This podcast “Our American States” dives into some of the most challenging public policy issues facing legislators. On “Across the Aisle” host Kelley Griffin tells stories of bipartisanship. Also check out our special series “Building Democracy” on the history of legislatures.
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