Restructuring State Government
Repurposing State Government for the 21st Century
This is part of Civic Way’s series on reconstructing American government. The author, Bob Melville, is the founder of Civic Way, a nonprofit dedicated to good government, and a management consultant with over 45 years of experience improving governmental agencies across the US. For context, we recommend our last commentary on the structural flaws of state government and our earlier piece on the collapse of American Federalism.
Highlights
American Federalism—our system of federal, state and local governments—cannot meet the challenges of the next pandemic without a new state government model, with fewer states and more efficient state governments
The next stimulus package should include the aid that states need and the reforms that the American people need
Any government reform proposal should include a state reorganization plan that would consolidate the 50 states and District of Columbia into 15 to 25 new states
The reform proposal must also include a new model for modernizing the structure of state government, including a streamlined executive branch, a productive legislative branch and an impartial judiciary
The new state government model must include a strong, independent state accountability office
Introduction
State government is the fulcrum of American Federalism. When it falters, the viability of our entire system is jeopardized. In our last commentary, we summarized the serious structural flaws of the state government model. In this commentary, we outline some ideas for transforming that model. Our goal is not merely to improve state services and reduce unnecessary public taxes, but to prepare our nation for the next crisis.
We all hope for a better 2021. That the vaccines will be distributed quickly and widely, and that they will work. That the pandemic’s public health threat will fade. That we will reunite with loved ones and friends. That our jobs will return. That gathering places will reopen. That our lives will resume. That all will be normal once again.
We also can hope that this will be our last pandemic, our last existential crisis. But, we must do more than hope. We must plan and prepare for the next crisis. And, if we have learned anything from 2020, it is that we cannot navigate a pandemic without good government. If we start now, we can build the kind of government we will need for this century, one with a seamless network of federal, state and local agencies that work well together—in short, a new federalism with fewer, stronger, more collaborative states.
Any serious reform initiative should focus on two principal goals: 1) transform the 50 states into 15 to 25 larger, stronger and more balanced states and 2) modernize the structure of state government. A national commission should develop a prototypical model for state government as a template for individual states. Each state should establish a blue-ribbon commission to conduct a top-down structural review of state and local governments and recommend a restructuring plan that is best for that state.
A State Network for the 21st Century
The window of opportunity is open—for now. Instead of fostering gridlock, tolerating inertia and impeding the economic recovery, Congress can find common ground and do something. Democrats and Republicans can forge a compromise package that links urgently-needed state aid with long overdue state government reforms.
As part of the next stimulus package, the President and Congress should agree to establish a national advisory commission to reimagine federalism. This effort should entail a comprehensive assessment of federal-state relations, the structure of state government and the configuration of local government. The advisory commission should analyze alternative reform strategies and recommend a strategic reform initiative for consideration by political leaders and the American public.
The strategic reform initiative should include a specific plan for reorganizing the states around geographic regions and population centers. The state reorganization plan should call for the consolidation of the 50 states and District of Columbia into 15 to 25 new states. The ultimate configuration should be based on objective criteria adopted by the commission (e.g., population and geographic compactness)
One possible configuration would yield the following 17 states (key metro areas are in parentheses):
Northwest – Alaska, Washington, Oregon and western Idaho and Montana
Pacific – Hawaii and the Pacific territories if approved by those territories (American Samoa, Guam and North Mariana Islands)
Golden Gate – northern California and Nevada (Bay Area, Sacramento and Reno)
Southwest – southern California and Nevada (LA Metro and Las Vegas)
Great Plains – Wyoming, the Dakotas, eastern Montana and Idaho, northern Nebraska and Iowa and western Minnesota (Des Moines and Omaha)
Mountain – Utah, Arizona, New Mexico, Colorado (excluding eastern strand) and western Texas
Heartland – Iowa, Indiana, Kansas, southern Nebraska, eastern Illinois, Missouri (excluding southern strand)
South Central – Oklahoma, Arkansas, Texas, Louisiana, Mississippi and western Tennessee
Upper Great Lakes – Wisconsin, eastern Minnesota, upper Michigan, northern Illinois and northwestern Indiana (Chicago, Milwaukee and Minneapolis)
Lower Great Lakes – lower Michigan, northeast Indiana, northern Ohio, northwestern Pennsylvania and western New York (Detroit, Cleveland and Buffalo)
Ohio Valley – Kentucky, southern Indiana and Ohio, southwest Virginia, southwestern Pennsylvania, western Maryland and western West Virginia)
New England – Vermont, Maine, New Hampshire, Massachusetts, Rhode Island, northeastern New York and eastern Connecticut (Boston, Providence and Albany)
NYC Metro – southwestern Connecticut, southern New York and northern New Jersey (NYC Metro)
Delaware Valley – Delaware, eastern Pennsylvania and southern New Jersey (Philadelphia)
Potomac – northern Virginia, eastern Maryland and West Virginia and southeastern Pennsylvania (Baltimore and District of Columbia)
Southeast – Carolinas, Georgia, Alabama, Florida, eastern Tennessee and southern Virginia
Caribbean – Puerto Rico and the US Virgin Islands (if approved by their voters)
This is merely one approach for consideration. Other options should be carefully examined. For instance, the commission may conclude that it would be more politically palatable to respect more state borders. If so, they could adopt a plan that would consolidate states using current state borders wherever possible. They also could adopt a phased implementation plan that would use current borders for a reasonable transition period.
Regardless of the approach, the goal should be to reduce the number of states by at least half. The new states should be organized around large population centers and distinct geographic regions. The new states would be more balanced in terms of land, population, economic output, fiscal strength and operational capacity. This would ease the federal government’s transfer of more autonomy, power and flexibility to state governments, not just to manage programs like Medicaid, but to serve as true laboratories of democracy.
Once the commission recommends a state reorganization plan, it will require legal confirmation. Under Article IV, Section 3 of the Constitution, legal confirmation will require the consent of Congress and all 50 state legislatures or a Constitutional amendment. A Constitutional amendment may be initiated by Congress (i.e., by a two-thirds vote of both chambers) or state legislatures (i.e., by two-thirds of the legislatures asking Congress to hold a constitutional convention). Regardless of how they are initiated, amendments must be approved by three-fourths of the states (via state legislatures or ratifying conventions).
The multi-state compact must be a critical component of any state government reform initiative, especially for states that will merge (or will be incentivized to merge) under the reform plan. Not the narrow, ad hoc compacts used so sparingly by states today, but broad, long-term and standardized compacts that will jump start interstate cooperation across every program and function—economic development, education, health care, environment, energy, transportation, broadband, utilities, taxation and administration.
In the short-term, this strategy should yield multi-state pandemic compacts for the provision of vaccines, medical resources and public health measures (e.g., quarantines and re-openings). In the long-term, it could spur the creation of multi-state authorities to carry out functions like health care insurance exchanges, transportation system improvements and energy grid upgrades. Every compact should be promoted, implemented and managed in a way that will expedite the consolidation of state governments.
A Modern Executive Branch
It is time to abandon the relics of the last century—like independently elected statewide offices. Every state should eliminate all elected offices except the governor and lieutenant governor and require the governor and lieutenant governor to run as a team (this is already the case for 26 states and four territories). And state constitutions should be amended to enable the executive branch (perhaps with legislative consent) to periodically modify the structure of state government without further amendments.
States should professionalize the other elective offices. Some states have more elected offices than other states, but examples include the Attorney General, Comptroller, Treasurer, Labor Commissioner, Insurance Commissioner, Land Commissioner, Agriculture Commissioner and Public Instruction Superintendent. All of these offices should be converted to appointed positions in the executive branch. As an interim measure, until such time the constitution is amended, the elected officials could be converted by statute to part-time advisory positions and their duties reassigned by executive order to gubernatorial departments.
The Secretary of State position merits special attention. Nearly all states (47) have state-level Secretaries of State (only Alaska, Hawaii and Utah do not) with 35 elected and 12 appointed (usually by the governor). In nearly all states, the Secretary of State performs several administrative duties (e.g., business registration, Uniform Commercial Code administration, notary public regulation, state records management and official document certification). States should eliminate the Secretary of State position and transfer the position’s administrative (nonelection) duties to a department under the governor.
In 38 states, the Secretary of State serves as the chief election officer (exceptions include Illinois, New York, North Carolina, Utah and Wisconsin), a source of growing partisan strife. In some states, like Utah, another elected officer fulfills this role. In a democracy, it is simply unfathomable to entrust our sacred democratic processes to a partisan politician. Every state should assign the chief election officer role to an independent nonpartisan state election commission comprising equal numbers of Republicans, Democrats and Independents. The election commission should appoint an experienced professional for a set term to administer state election practices, including registration controls, voting systems and ethical standards.
The new state government model should designate the Governor as the state’s chief executive officer. As is with any successful business or nonprofit, the state’s chief executive officer should have sufficient authority to manage all executive functions. The Governor should have a manageable span of control (i.e., no more than 12 direct reports) and a strong central staff unit for enterprise support (e.g., planning, budgeting, finance, personnel, procurement and asset management). This will entail merging an unwieldly array of siloed agencies into a smaller number of larger, more integrated cabinet departments. And every Governor should have a modern budget system, one that benefits from legislative input, but enables the executive to shape the budget plan, veto line items, control day-to-day spending and adjust appropriations to shortfalls.
Every state has scores—sometimes hundreds—of boards and commissions. Some, like public utilities commissions, perform a vital role. Many others are obscure, if not pointless. Little is known about the costs associated with these entities (staffing costs are often buried in the budgets of other agencies). But, at the very least, they can distract from more pressing needs. Instead of continuing to allow such entities to proliferate, every state should institute a mechanism to ensure the annual review of boards and commissions and any related regulations and accountability measures.
A Vibrant, Visionary Legislative Branch
We should give serious thought to right-sizing the 49 state legislative chambers. A legislative body should be large enough to be representative, but small enough to get things done. In right-sizing the chambers, we should fit the size of the state senate and house to their respective roles. Nebraska, after concluding there was little value in having two chambers performing similar functions, made its legislature unicameral.
To the extent that other states want to maintain two chambers, they should distinguish each chamber’s role and vary their sizes accordingly. If, for example, the House carries out short-term tasks like approving the annual budget and the Senate addresses long-term issues like strategic planning, the House should be significantly larger than the Senate. Each state House should have just enough members to ensure legislative responsiveness, collaboration and productivity (a good rule of thumb would be up to about 200,000 citizens per district). In turn, each state Senate should be sized at about one-fifth the size of the House.
The term limit is one of the most widely discussed and popular legislative “reforms.” While limiting the terms of state legislators is no panacea for the many problems facing states, it could help inject new people, ideas and energy into state government. However, term limits for legislators should be linked with term limits for lobbyists (i.e., limited registration periods for lobbyists) to maintain some semblance of equilibrium. In addition, the legislative term limits should reflect each chamber’s updated role (e.g., four consecutive two-year terms for state house members and two consecutive six-year terms for state senators).
It does not take long for a rookie state legislator to discover how complicated state government is. The realization hits early that achieving one’s agenda takes far more time than any legislator has. While many state legislatures remain part-time, the demands on their time are not. It makes sense for states to periodically assess this issue, but the more important questions involve legislative staff. How many full-time legislative staff are needed? What services should they provide? What expertise will they need?
Every state legislature needs a dynamic, independent and shared professional staff resource. It is not unreasonable to fund a few personal staff to attend to each legislator’s unique political or constituency needs, but most legislative staff should support all legislators. There are many ways to organize such staff resources, but every shared staffing organization should possess the following capabilities: planning, policy analysis, fiscal analysis, bill drafting and code maintenance. Most importantly, there should be a joint legislative committee with equal partisan representation and a structured process for selecting qualified legislative staff.
Most state legislatures are myopic, unable or unwilling to think about state government beyond the next election cycle. There are at least two ways to address this problem. One way is structural—to change the focus of state Senates from the short-term to the long-term. Instead of merely duplicating the work of the House, the Senate would approve multi-year plans and budgets and affirm the alignment of any House-approved short-term legislation (e.g., the annual budget) with long-term legislation (e.g., the multi-year budget). The Senate would be charged with taking the long view and ensuring that state government can meet future challenges.
A second way to address the problem would be procedural. For instance, a state legislature could dedicate its short session to focus on strategic issues (e.g., the alignment of public education, workforce training and tax systems with economic opportunities, natural resource preservation and infrastructure development). The state legislature also could support the development of a multi-year budgeting process that integrates capital and operating budgets and the expansion of fiscal notes to include long-term fiscal considerations.
An Independent, Impartial Judicial Branch
Public faith in state government will never be restored if partisan politics continue to infect the state judiciary. If we do nothing else, we must invoke strong measures to protect the impartiality and independence of state judges at all levels—supreme courts, appellate courts and trial courts. The first—and most critical—measure is to institute a new selection and retention process for all judges.
Each state should establish an independent, permanent State Oversight Commission (SOC) to oversee the selection and retention of judges. The SOC should comprise an even number of members equally representing the executive branch, legislative branch and private sector. There should be an equal number of Republicans and Democrats. The SOC should employ a three-step merit selection process: 1) the commission recommends at least three “well-qualified” candidates per vacancy, 2) the governor nominates one candidate from the short list and 3) the SOC confirms the nominee (every nominee would receive an up or down vote and the governor could appoint an interim judge until a nominee is confirmed).
The states should have a judicial retention process, but it should involve the SOC, not the voters. It could be structured in various ways. One option would be to subject every judge to the retention process twice, at the end of the first two years of service and then again six years later. Another variation would be to calibrate the retention process to different court levels (e.g., more frequent retentions for trial courts than appellate and supreme courts). The SOC should be authorized investigate judicial ethics complaints, hear disciplinary cases, impose disciplinary action and, if merited, recommend impeachment to the legislature. States also should consider term or duration of service limits.
Every state should have a streamlined administrative structure overseen by a presiding judge or a judicial management committee. The presiding judge or judicial management committee should appoint a chief court administrative officer to manage all court plans, budgets, processes, systems, personnel and other resources. The chief court administrative officer should be empowered to track judicial productivity and recommend measures for improving productivity and efficiency, including the redistribution of judicial resources.
The state should accelerate the use of administrative law tribunals and processes to improve the efficiency and accessibility of civil justice. The state should establish a board under the supreme court to license and monitor legal services providers (e.g., attorneys serving as contract administrative law judges). The chief court administrative officer should work with the committee to modify regulations for expediting administrative law processes, such as online dispute resolution for and licensed paralegal usage for minor civic matters.
The states also must strengthen the accountability of the state courts. Tough ethics legislation, addressing such issues as judicial conduct, conflicts of interest, recusal rules, post-court employment, disclosure requirements and sanctions, should be enacted. The chief court administrative officer should be authorized to develop measurable performance criteria for the courts (e.g., case disposition time and costs per case). And the courts should be required to quickly publish all reports and ensure easy, affordable public access to all court deliberations, transactions and records.
Holding State Government Accountable
All states have audit functions, but they are too often fragmented, underfunded and ineffectual. In some cases, their efficacy is compromised by partisanship. The new state government model must have a strong, independent and unified State Accountability Office (SAO), with the authority to audit and review any branch, agency, office, board, program, law or regulation, and at any time.
How should the SAO be structured? Using the federal Government Accountability Office as a model, states should establish an appointed, non-partisan State Auditor position to supervise all state audit functions for a non-renewable term that spans multiple election cycles (e.g., ten to 20 years). The State Auditor should be appointed by the Governor from a list of three nominees recommended by the SOC with the consent of the Senate. The State Auditor may be removeable by a joint resolution of the legislature, but only upon a two-thirds vote of both chambers and the recommendation of the SOC.
The State Auditor should have the authority to unify audit functions, obtain all state records, develop an annual audit plan and assemble sufficient resources, including employees and contractors, to carry out the audit plan. The SAO shall conduct or coordinate all financial and compliance audits, performance reviews and “sunset” reviews (i.e., periodic reviews of programs to assess their viability). The state auditor should be required to report to the legislature on any audit findings or recommendations. The SAO should have a dedicated funding source approved by the voters or legislature (e.g., as a percent of total state expenditures).
Renewing the Grand Experiment
Oliver Wendell Holmes once described the Constitution as “an experiment.” And, in his 1871 essay, ″Democratic Vistas,″ Walt Whitman lauded democracy as the best political system for unleashing the full potential of individuals. If such sentiments are right, our republic is—and will always be—a noble experiment. If we are idealistic and bold enough to experiment, our democracy’s best days are on the horizon.
The Great Depression was a time of great suffering, yet it produced a democratic leader—Franklin Delano Roosevelt—who grasped the power of experimentation. His ideas didn’t always work, but he never stopped trying. Today, we are better off because of those experiments—Social Security, unemployment insurance and agricultural subsidies, more equitable labor relations and stock market controls. The profound regional impact of the Tennessee Valley Authority and Blue Ridge Parkway. And the countless roads, bridges, schools, parks, recreational facilities and post offices built by the Works Progress Administration.
The pandemic is also a time of grievous suffering. But, like the Great Depression, it too offers a rare opportunity to experiment, to replace and build anew. Restructuring state government is one such experiment, one that could benefit future generations. More competitive states. Leaner state bureaucracies and lower taxes. Fewer jurisdictional redundancies. Swifter and fairer justice. Stronger accountability. Most importantly, our state governments will be far better equipped to prevent, fight and defeat future crises.