A Guide to Reading State Legislative News
A case against despair
In early May, an unknown source leaked the Supreme Court’s pending decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and Planned Parenthood v. Casey and returned the right to regulate the legality of abortion to the individual states. Since then, I’ve gotten a lot of questions from friends and family about state legislation introduced in response to the decision. My day job involves several different things, but among those things I’m a registered lobbyist for the nonprofit that employs me.
The purpose of this post is to explain some of the complexities behind the introduction of state legislation in a way that makes legislative news easier to understand. If you find this helpful, I hope you’ll share it with others.
I. An introduction and a takeaway
Let’s start with a really unhelpful statement: Every state legislature is slightly different, and almost no quality is shared equally among all fifty. Still, there are useful general principles in understanding how they pass laws. Here’s the 101.
Generally speaking, they’re bicameral (though there is an exception even to this1). Generally speaking, legislation is first introduced in one chamber and heard by a dedicated committee, which provides the opportunity for some degree of public input and decides whether and in what form to move the bill onward. If voted out of committee, the bill then moves to a debate and vote by the full originating chamber, then on to the parallel process of committee and floor vote in the opposite chamber. Bills passed out of both chambers are signed into law by governors.
All of this must happen in keeping with strict deadlines, which in short legislative sessions can be just a few days apart.
From the perspective of someone trying to pass a bill, the legislative process is just a series of places a bill can die. One does not watch a bill ascend toward passage on golden wings—one watches it bounce over a series of increasingly high hurdles, transmogrifying as needed to make the next jump, wondering if it will become so monstrous before the final hurdle that you, its maker, must shoot it out of the sky for the good of the world, or, if it achieves the finish line intact and still beautiful, it will be sniped down in the victory lap by some unseen enemy.
The takeaway is this: The introduction of a bill in a state legislature does not mean its passage is guaranteed or even likely. Even in legislatures dominated by a single party. Even in legislatures really dominated by a single party.
But introduction is the point at which headlines get their widest spread. And because bills introduced make more exciting news than bills quietly dying when a deadline expires, the news of the bill’s death rarely gets the attention that its introduction did, even though the vast, vast majority of bills quietly die when a deadline expires.
You can’t know the precise intricacies of every individual legislature, the weird, entrenched dynamics that dictate how far a piece of legislation gets. But you can go into reporting on introduced legislation with a little skepticism, a little forbearance. And, with that skepticism, you can make a few educated guesses about a bill’s actual chances.
II. A case study
In early May, just a few days after the Dobbs decision leaked, Republican Rep. Danny McCormick introduced Bill 813 in the Louisiana House of Representatives. It proposed to make it a felony for a woman to get an abortion – officially classifying it as homicide, which in Louisiana carries a penalty of life in prison without parole.
Major news outlets picked up this story. The Guardian, the New York Times, and the Washington Post all ran scary headlines on it.
I heard and saw a lot of frenetic terror about this, at a point where a lot of people with progressive politics were feeling very hopeless. It was included in many apocalyptic lists of reasons America was doomed. People talked about it as though it were going to happen, as though its introduction was not just a sign that the prisons in Louisiana were going to fill up with desperate women, but that all conservative states were eager to follow.
This despite the fact that the bill was always doomed and, in fact, wildly unpopular among the major pro-life stakeholders.
Other Republicans called it patently unconstitutional – “You wouldn’t have brought it if you [understood it violates the separation of powers doctrine],” one said during the floor debate. The governor (a pro-life Democrat) said it wasn’t a pro-life bill and promised a veto if it ever got so far. Louisiana Right to Life spoke out strongly against it on behalf of a big coalition of anti-abortion organizations, calling it “FUTILE AND DIVISIVE”: “Our longstanding policy is that we hold abortion businesses and those who perform, sell, or provide abortions with civil or criminal penalties, not abortion-vulnerable women.”
If you think about it, this makes sense as a pro-life position. The pro-choice movement has been quite successful in normalizing the message that people who are anti-choice care more about blobs of unviable cells than they do about living, breathing women. This is a message the mainstream pro-life movement has serious interest in combatting. Criminalizing abortion providers is a popular policy position; punishing the women themselves is firmly against most people’s pro-life principles. Even in legislatures dominated by pro-life politicians and backed by pro-life constituencies, charging women with murder for getting pregnant is a pretty fringe position.
Here are a few red flags I saw when I was first reading coverage of the bill’s introduction:
It was introduced a very short time after the Dobbs decision was leaked, and introduced with the stated intent of getting out ahead of the leaked opinion. A bill hastily shoved out in response to a national controversy stinks of one that has not spent any time in the oven whatsoever.
As the Louisiana Republicans pointed out, it was introduced in response to anticipated action by the Supreme Court – Roe v. Wade was still law at the time it was introduced. Even if the legislature had all been gung-ho about charging pregnant women with murder, legislatures don’t actually like to pass bills that are blatantly unconstitutional, partly because it’s a waste of time to pass something that will be unenforceable upon passage, and partly because constitutional challenges are a gigantic hassle.2
A lot of the coverage spent more time talking about other legislation that had been introduced than the bill itself. That Guardian piece is particularly egregious – it’s actually about reactions to the pending Dobbs decision more generally, not about the bill. It abandons any pretense at reporting on House Bill 813 a few paragraphs in and spends the rest of the time indulging in pointless scaremongering. (It ends on a grave reminder that after the leak, a far-right Internet Man said on the socials that he thinks we should have more racism. Oh no!) There’s no new reporting on the actual bill, just a link to a USA Today article containing the relevant details. But, boy! What a headline, right?
So what happened to HB 813? It immediately started getting negotiated down. For reasons of optics, the anti-abortion contingent in the legislature3 didn’t want to just kill the bill outright – they felt it wouldn’t look good to completely stamp out a piece of anti-abortion legislation. So, over the protests of McCormick, the sponsor, they gutted it during the floor debate with an amendment that specifically excluded pregnant women from criminal penalty for seeking abortion. Immediately following the debate, McCormick formally asked that it not be put to a vote – publicly laying his own bill to rest.
House Bill 813 died on May 12. Senate Bill 342, the anti-abortion bill that replaced it,4 was signed into law a month later. It’s currently unenforceable due to a pending constitutional challenge.
I knew a lot of people who had heard Louisiana was going to charge women with murder for getting an abortion and were discouraged, frightened, and furious about it. I did not know a single person who had heard Louisiana had no intention of passing that bill.
In the rest of this post, I’d like to get a little deeper into the weeds of the lawmaking process and lay out some tips about how to approach state legislative news in the wake of a Supreme Court decision that is generating a lot of state legislative news. I’ll get weedier in the footnotes, if you’re interested in weird legislative quirks or dry details.
And remember the takeaway: The introduction of a bill in a state legislature does not mean its passage is guaranteed or even likely.
III. How to tell a bill is dead on arrival
Sometimes a bill is introduced that was never intended to pass. Here are a few reasons that might happen.
It’s sending a message, not making a law.
Sometimes a bill is introduced as a “message bill,” understood by all involved to have no hope of movement but potentially useful to show off to constituents as proof of ambitious thinking, or a willingness to stick it to the man, or as a signal to party leadership that an issue is on the radar and may receive greater attention in a future session.
My favorite message bill example: A fringe-right Republican in Washington used every one of his six terms in the House to propose legislation that would establish the independent state of “Liberty” east of the Cascade Mountains, governed by God and guns and freedom, free from the liberal tyranny of Seattle.
Clearly, any time wasted reporting on his efforts as though they had a hope of passing would have been time wasted. But a lot of message bills that aren’t as crazy are just as doomed.
It’s Just The Way It’s Done.
State legislatures are old institutions and we’ve had the same primarily-two-party system for a long, long time. Arcane etiquette rituals are important in a world built on power-trading and compromise. It may be considered courteous, for example, for a committee chairperson to hear bills sponsored by the committee’s ranking minority member—an outward show of bipartisanship. In some legislatures it’s considered courteous and democratic to give almost every bill that’s introduced a public hearing regardless of intent to move it.
Many legislatures are arranged such that, even with a decent-sized majority, bipartisan support is required to pass a lot of major legislation—you can’t count on all the Democrats and all the Republicans to walk in lockstep. Etiquette matters immensely in a political climate where any trick you pull could come back to bite you when the majority shrinks and you’re stuck crossing the aisle to move your priority bill.
It’s strategy.
When deadlines are strict, time is valuable, and there is always more legislation than time to hear all of it.5 Time given to a bill is political currency, and sometimes that’s valuable regardless of the bill’s contents.
Sometimes it’s important for the majority to hear bills from legislators whose votes might be important on priority legislation later in the process. Sometimes multiple bills run on the same hot-button issue, with the understanding that the more radical ones will eventually die to make way for the most moderate of the group. Some bills are born marked for an early death for inscrutable reasons known only to the people working on them and the legislators sponsoring them.
See, again, House Bill 813: The legislature knew they had no intention of passing the bill, but they had strategic reasons for advancing it to floor debate and killing it there, where its opponents could get their strident opposition on the record, rather than allowing its quiet expiration.
IV. How to evaluate who’s behind a bill
People pass bills. Who’s behind a bill, and who isn’t, gives you valuable information about its chances.
Sponsors.
News articles often simply say that “a Democratic/Republican legislator” introduced a bill. That’s factually true – one or the other has to do it, after all – but even in a legislature firmly dominated by one party, this doesn’t tell you much. Lawmakers, generally speaking, don’t need the permission of party leadership to introduce legislation, and every caucus has its center and its fringe.
For another favorite example, let’s return to Washington’s fringe-right Republican. The Liberty bill guy. By his last (sixth!) term in office, he had been revealed to be involved in coordinating violent anti-government militia activity and in inciting his separatist cronies to start training children to fight the government in holy war. (He also once was fined $4,700 for pouring olive oil down the Capitol steps to prevent adherents of the Satanic Temple of Washington from crossing through the legislative building. This has nothing to do with the viability of the legislation he sponsored, but it is very funny.)
Following news of his involvement in active anti-government terrorist conspiracy, that guy was kicked off of all the committees on which he sat and not permitted to vote with his caucus. His party wouldn’t formally remove him from power, but everything he touched was radioactive. He wasn’t even allowed into his office. The head of the Republican caucus tweeted that he should resign. The governor said he should resign. And still he showed up at the beginning of the next session, and! by God! he still introduced legislation.
You can’t always know from the information in a news article who’s on the fringe and whose efforts are taken seriously. Hopefully a decent reporter would mention that that guy had, you know, some issues affecting the viability of his legislative efforts; but if someone’s simply run-of-the-mill fringe, still clinging to the edges of the state legislature’s Overton window and free of actual scandal, it wouldn’t be journalistically appropriate to say “This reporter gets the impression that everyone thinks this guy is an idiot and they only hear his bills out of a grudging sense of procedural obligation.”
This works the opposite way, too: When people with power and respect back a bill, it’s harder to kill. If the chairperson of the committee that’s hearing the bill is also the sponsor, it’s a pretty safe bet the bill is making it out of committee, for example.6
Stakeholders.
Bills have stakeholders: People and groups who are affected by the contents of the bill and who, ideally, have lobbyists.
A good starting question is: Does the evidence available indicate that the stakeholders were excited about this before it was introduced? Look up organizations who you think would be in support of or against a bill—maybe they’re quoted in the news article. Have they issued a press release? Publicized a template Email To Your Legislator? Are they a member of a coalition that works on the issue? Do they make a list of their legislative priorities publicly available? Did they show up to the public hearing to testify?
House Bill 813 had proponents among its stakeholders—mainly, it seems, hyper-conservative heads of Protestant churches and people who believed that Roe v. Wade was not a real law because they really, really didn’t like it.7 But Louisiana Right To Life, an organization representing many pro-life organizations and with a serious media and grassroots-lobbying arm, came out unambiguously against. And it’s clear from the result which stakeholder group the legislature took more seriously.
V. How to bake a bill
Legislation changes.
The version that’s introduced usually looks different from the version that passes out of committee, the version that passes out of the first chamber, the version that passes out of committee in the second chamber, and so on. Really bad bills become less bad. Really good bills become less good. A state agency shows up to testify in public hearing and points out that keeping X provision in place will require them to redo all their relevant procedures to the tune of $50 million. A trade-group lobbyist sets up a 15-minute meeting with the sponsor and convinces them to tone down the provision the unions liked best. A grassroots lobbyist packs the hearing room with 200 union workers in matching T-shirts and gets the provision back, with tweaks. A committee member lets the sponsor know that for courtesy reasons he’ll vote yea in committee, but she won’t have his vote on the floor unless she adopts his proposed amendment.
In some states, it is possible for a bill to make it three or four steps through the legislative process, receive public testimony and debate on its contents in multiple venues, and then to have its entire insides ripped out and to be wholesale replaced with a different bill bearing little or no resemblance to the original. I have a family member in a midwestern state who testified in committee on a modest college funding bill, which the majority party then gutted like a team of house-flippers and turned into a multi-hundred-page industrial deregulation bill.8
There’s a phrase people use where I work: They want to know if a bill is “fully-baked.” That means it’s been drafted with stakeholder input and the major players are already at the table. Lawmakers want some predictability: Who’s going to oppose it, on what grounds? What proposed amendments are anticipated and how many do the proponents expect to negotiate ahead of time? If the bill clears its first few hurdles but still hasn’t been fully negotiated, a lawmaker might say: I won’t champion this until you've had it in the oven longer.
Headlines about bill introduction tend to go viral; headlines about major amendments to bills tend not to. If a headline is a couple of weeks old, check to see if the bill has changed, or what proposals for change are on the table. If the headline is a couple of days old, wait a week.
VI. A conclusion
If this seems hopelessly complicated… well, it’s pretty complicated.
Every legislature operates on slightly different rules. Figuring out whose opinion on a bill matters in a place you don’t live, in a system where most important things happen behind closed doors, takes time and effort. Lobbyists can be as surprised by a turn of events as the general public—there’s a lot you simply can’t know until it happens.
We stack up headlines in our minds as proof of the underlying brokenness of our systems. There is a thesis we on the progressive left all seem to be privately building evidence for: Everything now is bad, and uniquely bad, and straightforwardly bad. Every bad headline, every discouraging tidbit, every out-of-context news clip, is a brick in the wall of our despair. And, if I can stretch this analogy a little further: We don’t go out and cut bricks. We sit down in the brickyard and watch as bricks are piled in front of us, and as years pass we say: Ah! There’s the wall. I knew it was there the whole time.
I’m not trying to pretend that reproductive rights in America are not under threat. They are. But they are not under threat from Louisiana House Bill 813. And a lot of people around me believed they were. I cling to the belief that that distinction matters—that the fear we grapple with should, at least, be fear of something real.
I hope this is helpful in reading legislative news. I hope that it makes unpleasant headlines less unpleasant the next time there’s cause for The Guardian to list every bad thing happening in the country in one bad article and treat them all as equally inevitable. I hope it makes it easier to wait for the followup—to respond to Senate Bill 342 instead of House Bill 813.
I believe that it is difficult for complexity and fear to live in the same place. I believe that truth resists simplicity, and that “we are doomed” is so simple a conclusion that it cannot possibly be true.
Thank you for reading. Leave a comment if you have a question.
Nebraska, if you’re curious.
Sometimes they'll pass something knowing a constitutional challenge is likely, but only after the state attorney general has exhaustively advised them on the chances of success… and they think there's a chance of success. Making abortion murder while Roe was still law did not have a chance of success.
In earlier drafts of this post, I kept using "the Republicans" as a proxy for "anti-abortion proponents in the Louisiana state legislature," because that's a useful proxy where I work. Turns out you can't do that in the only state in the country built on a French Catholic civil system - the Democrats are as likely to be pro-life as the Republicans.
Sponsored by a Democrat!
This often comes down to simple math. In many legislatures, the permitted time spent on floor debate is set by statute. The calculus becomes: How many easy, uncontroversial bills can we pass in the time required for a single knock-down, drag-out fight of a bill? What's worth giving eight straight hours to and what are we willing to accept as a sacrifice to muscle that thing through? How many knock-down, drag-out fights per session can we have when we also need to, you know, debate the budget?
During the pandemic, because the usual process of running around the capitol campus with a sheet of paper trying to trap people in elevators and get them to physically sign on to your bill was not available, leadership where I work switched to requiring only a single sponsor and co-sponsor, where before one hoped for 5-10 people to sign onto a bill to prove it had legs.
Seriously. People were yelling "IT'S NOT THE LAW!" from the stands in the floor debate.
In other places, divorcing a bill from its original title and statement of intent this way would be flatly unconstitutional. Legislatures!
I hope more people read this and take it to heart. The sheer amount of kooky bills introduced into state legislatures is staggering. But I feel like most people also don't realize the average state legislator is, well, let's say a few rungs below a Jimmy Stewart character in terms of political seriousness.
This is an excellent overview. Our political system is riven with inefficiencies, and one of the most unfortunate is that so much legislative activity takes place purely for show, as you point out.
Also, just to make sure I'm clear on this: when you say that state legislatures are "bicameral," what you mean is that they act according to the commands of the gods, who speak to them directly. Right?