Old Format, New Problem: Biennial Legislatures Face COVID-19

In Montana, lawmakers meet for 90 days in odd-numbered years

By Associated Press

CARSON CITY, Nev. — When the coronavirus pandemic hit, state legislators scrambled to authorize relief programs, review emergency protocols and rebalance their budgets amid plummeting revenue projections.

In California, they passed emergency measures to allow remote voting. In Arkansas, they moved to makeshift chambers in a college basketball arena. But in four states confronting the pandemic, lawmakers stayed home, not scheduled to return until 2021 for their legislative sessions.

In 1960, 31 legislatures met every other year. Over time, states have gradually abandoned the format as governance has grown more complex. In Montana, Nevada, North Dakota, and Texas, the format still holds— a vestige from a bygone era when lawmakers crossed vast rangelands with difficulty to get to state capitals.

In these states, lawmakers continue to meet for regular sessions in odd-numbered years and spend the rest of the time making minor decisions remotely in interim subcommittees.

Calls to convene the Legislature every year have historically failed to gain traction in these states. But the pandemic has galvanized the idea’s long-time supporters from both parties and won backing from frustrated lawmakers watching from the sidelines as governors coordinate responses.

“COVID has added a whole new element,” said North Dakota Sen. John Grabinger, a Democrat. “We’ve never had this level of impact and the system we have now is not a good system to handle it. Our constituents deserve better.”

In Nevada, legend has it that when the state was ratified, Mark Twain, then a reporter for the Virginia City Territorial Enterprise, said, “It’s far better the Legislature meet every 60 years for two days than every two years for 60 days.” (Historians have questioned whether to attribute the remark to Twain, but it circulated widely, reflecting widespread sentiment.)

In line with the state’s Old West libertarian heritage, the Legislature meets every other year for 120-day sessions, barring extenuating circumstances. In emergencies, it convenes for “special sessions” to address unforeseen issues. This summer, the state held two to address the pandemic.

Nevada faced an extraordinary tax revenue shortfall with casinos closed, concerts cancelled, and hotel rooms that stood empty in April and May. The state recorded the nation’s highest unemployment rate during those months, but due to delays, lawmakers didn’t convene a special session until mid-July.

Nevada Sen. Joyce Woodhouse, a Las Vegas Democrat, has long felt that meeting every other year blunts the Legislature’s ability to respond quickly to crises. Since the Great Recession, she has introduced two resolutions that propose amending the state constitution to convene the legislature annually, but neither measure progressed.

“Nevada in 2020 is no longer the Nevada of 1975. We are so much bigger. Our vulnerable population has grown. Our senior citizen population has grown. Our student population has grown. All of these have multiplied, and we need much more time,” she said. “We can’t let anyone fall through the cracks.”

Nevada Sen. Ben Kieckhefer, a Reno Republican, said having a part-time Legislature made up of working people — teachers, ranchers and lawyers, for example — led to better lawmaking based on a fuller understanding of constituent struggles.

“The perspective that your normal, average working person brings to a legislative body is one that you don’t get from full-time politicians,” he said. “It’s beneficial to have people who know what it means to take a pay cut during a pandemic.”

In Montana, lawmakers meet for 90 days in odd-numbered years. The Legislature next year will consider meeting for 45-day sessions in even-numbered years due to a 2019 bill that directed officials to research the matter.

Leaders in the Republican-controlled statehouse, which hasn’t convened since the onset of the pandemic, say the format limits the authority of the legislative branch and, in turn, empowers Democratic Gov. Steve Bullock.

Republican State House Speaker Greg Hertz said allowing more elected officials to provide input on how to divvy up virus relief dollars would have improved Montana’s response.

“We’ve all realized, especially in Montana and states that have biennial sessions, how much authority the legislative branch has given to the executive branch,” he said. Legislators could have heard from businesses and individuals about the impact of the virus were the Legislature in session, Hertz said.

In North Dakota, proposals to convene annually have also never overcome concerns about government expansion, but the pandemic has led to a change of heart among some lawmakers. The Legislature can meet for up to 80 days every two years, not counting special sessions or meetings held to impeach a public official.

The state is on track to spend its entire $1.25 billion cache of federal relief dollars. The Republican-majority emergency commission allocates the funds and then sends its plan to a committee of legislators responsible for budgeting between legislative sessions.

Democratic Sen. Grabinger said that having a subset of legislators make decisions over $1.25 billion in relief funding – about one-fourth the size of North Dakota’s general fund – limits the capacity for oversight.

“The entire Legislature should have a say and it needs to be vetted a whole lot more,” he said of the relief money. “The fact is, everybody, every constituent should have a say in this and they aren’t.”

Grabinger and other Democrats, who make up a minority in both chambers, have called for a special legislative session to allocate the funds. Republican Gov. Doug Burgum has rejected their push.

In Texas, the nation’s second-most populous state, Democratic Rep. Richard Peña Raymond has advocated amending the state constitution to remove the requirement that the Legislature only convenes every other year for more than a decade. In 2021, he will try again.

Although his Republican colleagues have anxieties about expanding government, Raymond said the pandemic has strengthened arguments for meeting more often. He believes the idea has won new supporters — mainly because the biennial format makes it harder to distribute resources to communities in need.

“Right now, what you have to count on is the governor … you have to count on him using those resources and distributing them appropriately,” Raymond said. “Unless the whole legislature is in, it is hard to address that. What can you do, go to court?”

Under Raymond’s proposal, the Legislature would supplement its regular sessions by meeting on even-numbered years to revisit budget issues, while continuing to address most other topics on a biennial basis. By passing new budgets annually, he said Texas could better serve the increasingly diverse needs of communities across the state.

“The state is so big and the economy is so diverse,” Raymond said. “You really cannot in good conscience and any kind of real efficiency pass a two-year budget.”

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