By Sean J Kealy

Book Review: Fighting Political Gridlock

December 23rd, 2021 in Federal Legislation, Legal Education, State Legislation

Fighting Political Gridlock

by David J. Toscano

University of Virgina Press, 2021

ISBN: 9780813946467 (hardcover)


Over the last few days, I had the chance to read David J. Toscano’s excellent new book Fighting Political Gridlock: How States Shape Our Nation and Our Lives.  From the dust jacket:

In this profoundly polarized era, the nation has been transfixed on the politics of Washington and its seemingly impenetrable gridlock.  Many of the decisions that truly affect people’s lives, however, are being made not on the federal level but in the states.  Faced with Washington’s political standoff, state governments are taking action on numerous vital issues, often with greater impact on citizens and their communities than from any decision made in D.C. Despite this, few Americans really understand their state governments or the issues they address.  In Fighting Political Gridlock, David Toscano reveals how the states are working around the impasse in Washington and how state policies are increasingly shaping society.

Many people are fed up with the seemingly hopeless nature of the federal government.  There is a lack of cooperation not just on important issues like immigration, the environment, and tax law—but also existential threats to the Republic like the deadly January 6th attack on the Congress. 

The state governments, however, are filling the void by functioning as they were intended.  This was especially true when faced by the global pandemic and a Trump White House that both undermined the government’s response to Covid-19 and at times actively worked against the efforts of the states.    

Still, many people don’t realize how important state governments are to their day-to-day lives.  Part of the problem is many people do not understand the difference between state and federal government. When I worked for the Massachusetts Senate I would often field telephone calls demanding that my boss, “the Congresswoman,” do something about military spending or nuclear weapons.  I would patiently explain that our office could work on many issues, but those were exclusively the job of the federal government.  I am willing to bet a similar scenario plays out daily in every state capitol in the country. 

This book is a terrific primer on how state governments work and respond to challenges.  In Chapter 5, “Players on the Stage”  David describes the roles of various state actors such as the governor and legislators.  David points out that legislatures often do the heavy lifting in state government and can be the dominant government institution—leading to the Virginia saying that, “Governors come and go, but the legislature is forever.”   He also discusses the growing power of the state attorneys general to affect state and national policy, and the special interests that are ever more involved in drafting legislation.

David also emphasizes that every state is different—due both to the state’s history and physical characteristics such as natural resources, and how the state has decided to govern itself.  David discusses the first part in Chapter 4, “The Cards You Are Dealt,” and the later in Chapter 3, “State Constitutions Matter.”  I find state constitutional law fascinating— states started enacting constitutions in 1776, and the early state constitutions were the model for the U.S. Constitution.  The Massachusetts Constitution, written in 1780 by John Adams, remains the oldest in-force constitution in the world.  The most recent state constitution, Rhode Island’s, was drafted in 1986.  Alabama adopted its sixth constitution in 1901 and at 388,882 words it is the longest and most amended constitution on the planet.  How the state organizes itself, splits power creating “checks & balances,” and which rights are protected all affect how the state addresses policy challenges. 

Getty Images

Throughout Fighting Political Gridlock, David comes back to a recurring mantra, “states matter!”  Often he makes his argument in the context of the pandemic, which has allowed some governors—from both parties—to show real leadership.  He goes on to discuss in detail how states have chosen to take on the challenges of: education policy ( Chapter 7), criminal justice (Chapter 8), economic development (Chapter 9), health care policy (Chapter10), culture war issues—such as abortion, guns, and immigration (Chapter 11), and climate change (Chapter 13).   

The most compelling chapter may be the conclusion, “Reimagining Civic Engagement.”  He begins the chapter with the timeless Lincoln quotation from his First Inaugural Address:

We are not enemies, but friends.  We must not be enemies.  Though passion may have strained, it must not break the bonds of our affection.  The mystic chords of memory will swell when again touched as surely as they may be, by the better angels of our nature.

David discusses the decline of civility in our political discourse.  Just as we need cooperation, office holders are no longer just talking past each other but actively yelling at each other.  He writes,

Many observers believe that some of the nation’s answers will be found in civic engagement, though there are disputes about the actual meaning of the term.  But one thing appears clear: some of the greatest opportunities we have for rejuvenation will involve governments closest to the people.  The answers are more likely to be found in our localities and our states than at the federal level.  And a key leadership challenge of our time involves lighting the spark and fueling the flame of productive engagement with the representatives who serve us at those levels.

He persuasively argues that civil engagement can be repaired with the following:

    • Employ empathy, humility, and respect for disagreement as the basis of civility;
    • Embrace the truth; reconciliation will follow;
    • Reinforce the political guardrails to guide our path;
    • Cultivate the disruption of dynamic listening; and
    • Reject the paralysis of guilt and the straight jacket of saintliness.

David’s take on the subject is not just thoughtful, but inspiring.

Virginia State Capitol, 1785
Architects: Thomas Jefferson & Charles-Louis Clérisseau

David, a 25 year veteran of Virginia state and local government, is the right author for a book on why states matter and how they fight gridlock.  He served as a city councilor and the Mayor of Charlottesville from 1994-1996.  He was then elected to the Virginia House of Delegates representing the 57th District, which includes all of Charlottesville and parts of Albemarle County—the seat once held by Thomas Jefferson.  He served as a delegate for 14 years,  serving on the Commerce and Labor Committee, Courts of Justice Committee, Rules Committee, and the Transportation Committee.  David also served on state commissions on such important topics as disability policy, alcohol safety, developing manufacturing and reviewing the state’s child support guidelines. For seven years, the Democratic Caucus elected David the House’s Democratic Leader. He left office in 2020, and now practices law with the Charlottesville firm Buck, Toscano & Tereskerz.  Prior to entering public service, David received a BA from Colgate University, a Ph.D. in sociology from Boston College and a J.D. from the University of Virginia.  He also writes a very interesting blog called Why States Matter.

I say David is the right author not just because of his extensive experience, but because of his attitude toward policy and politics.  If legislators can be broken into work horses and show horses, David is clearly the former who cares about good public policy.  David covers the policy choices made by states with the nuance and insight that comes from many years of hard legislative work.   Second, although a Democrat with clear policy preferences, this book is not a one-sided argument for a partisan agenda.  He is careful to give credit to officials from both parties where merited and criticism when criticism is due.  This is very refreshing in a world where too many things read like a spin-doctor issued press release.

In an otherwise terrific book, one criticism is David consistently referred to Virginia as “the commonwealth.” This was confusing given that everyone knows that Massachusetts is the Commonwealth—and now we can both field criticism from the good people of Pennsylvania and Kentucky

In addition, I was left wanting more from the chapter on civic engagement.   David’s prescription for better civic engagement is compelling, but he does not describe how we can change public behavior.  He is probably right that a successful effort will happen at the state and local levels, but there are several looming questions:  How do we improve civic education?  How can attitudes change when polite discourse and compromise are viewed as signs of weakness by large segments of the population?  This problem will only grow as authoritarianism becomes more popular, polarization increases, and people live in media bubbles.  In that vein, aren’t uncivil legislators just reflecting what their constituents want?  What can the government do and what are its limits? 

These are difficult questions, and I do not have answers.  Perhaps David does and can write a follow-up book—I would be excited to read it. 


November 2nd, 2021 in Legislative Operations, Opinion, State Legislation

I bought a painting!

I am not a major collector by any means, but I could not pass this one up:

Laura Atlas Kravitz (2021)

The painting, entitled "Chaos," is by Austin Texas based artist Laura Atlas Kravitz from Lollies Follies Studio.  A lawyer, Laura works in government relations for an education organization.  She started painting as a stress relief and a way to bring the community together.  One of Laura's ongoing themes is the Texas State Capitol and how she sees it depending on the day, time of year, and perhaps most importantly, what is going on at the time.

The Texas State Capitol was constructed between 1882 and 1888 and has been a National Historic Landmark in 1986. The Capitol is located on a hilltop overlooking downtown Austin and is an example of Italian Renaissance Revival style. Although it is taller than the US Capitol, it is only the sixth tallest state capitol, so there is at least one thing that isn’t bigger in Texas! Then again, the Capitol has almost 400 rooms and at 360,000 square feet of floor space, it is the largest state capitol in the United States.

The building has a pink hue because it is constructed of local sunset red granite. When the building was dedicated there was a weeklong celebration that included cattle roping, baseball games, singing groups, and fireworks. Some attendees purchased pieces of red granite as souvenirs.

The Capitol is topped with the statue Goddess of Liberty, a sculpture by Elijah E. Myers. In 1986, the original sculpture was replaced by a replica and the restored original is now in the The Bullock Texas State History Museum.

So why did I like this painting so much? 

Anyone who has worked in Congress or a legislature knows the emotion that this painting evokes. Most of Laura’s other paintings of the Capitol (available on Etsy) are light, some with many colors. Here the Capitol is surrounded by darkness. This, however, is not the darkness of a clear Texas night where the Goddess of Liberty generously adds a star to the firmament. This is a gloomy, yet swirling, darkness that at once uproots the Capitol from its Austin hilltop but also weighs the Capitol down. The darkness churns, not from winds or storm, but from uncertainty.

Laura tells me she painted “Chaos” a few days into the Legislature’s Second Special Session --a very chaotic time. A group of House Democrats had decamped to Washington DC in an attempt to stop what they saw as an odious bill that would have restricted voting rights. In return, Governor Greg Abbot, in a cruel-yet predictable-move, vetoed funding for the legislature and its 2,100 employees. That is fine for the legislators themselves, who are paid very little for their service and stand for election for reasons other than financial gain. It was obnoxious, however, to threaten the legislative staff—the people who keep the Capitol clean, the ones who answer telephone calls from constituents, the legal and policy staff who draft and redraft the bills to be debated. This year, they were working special session after special session. Staff work long unpredictable hours with tremendous stress. Further, legislative staff, especially lawyers, are typically paid far less than what they could make in other jobs. In large part, they do their job out of a sense of public service. To threaten the staff and their families with no pay was unconscionable.

Some will blame the missing Democrats for the chaos. I generally believe that when someone is honored by their constituents to represent their community they have an obligation to be there. If you are going to break quorum, however, it should be over something vitally important—like protecting the voting rights of the powerless and underrepresented. The Republicans pushing these voting rules might point out that they control the Legislature and under our system the majority rules. True. Still, in a Constitutional system, the will of the majority is tempered--and sometimes thwarted--by the God-given rights of the minority. Efforts to protect someone's ability to vote, which is referred to as a right in the US Constitution no less than five times, is--or should be--an example of when extraordinary measures are required.

I really like that Laura used gold to define the Capitol rather than another color—especially the pink of the actual granite. Gold is not just valuable, but precious. Legislatures, both as an institution and as a concept, are precious as well--even in difficult, chaotic times. People peacefully debating to work out their differences and create policy for the greater good may be the most valuable thing ever devised by society. In this painting the gold is swirling off the building and into the gloom. Unlike red granite, gold is malleable and soft. It is easily molded into something beautiful; but items made of gold can just as easily be scratched, chipped away, or destroyed.

In times of chaos, the legislature can suffer—both in its reputation held by the people outside the building and in the faith and enthusiasm of the people within. Luckily, when the legislative body returns to normal and functions as it should, the precious gold luster can be both restored and augmented—in preparation for the next storm of chaos.

I will end my amateur art analysis by noting that the gloom in Laura's painting is not total--there are spots of light in the dark.  Looking at the painting the light spots are amidst splotches that could have been caused by drops of sweat--or tears. Still, hope hides just beyond the chaos.  The British poet Alfred Noyes wrote The Road Through Chaos, which begins:

There is one road, one only, to the Light:
A narrow way, but Freedom walks therein;
A straight, firm road through Chaos and old Night,
And all these wandering Jack-o-Lents of Sin.

It is the road of Law, where Pilate stays
To hear, at last, the answer to his cry;
And mighty sages, groping through their maze
Of eager questions, hear a child reply.

I have commissioned Laura for another painting of the Capitol on the theme of “Sine Die” when the session finally, mercifully comes to an end and the legislative business, for better or worse, concludes.

I can’t wait to see what she comes up with.

n.b.  All opinions in this article are mine alone and do not reflect those of the artist.

A Visit to the Arizona Legislature

July 6th, 2021 in Uncategorized

This summer vacation brought me to Phoenix Arizona.  Not quite our usual family trip to the beach, but we are attending the Irish Step Dancing National Championships.  While my daughters practiced, I had a chance to visit the Arizona Legislature (kind of).

Unfortunately, the old Capitol Building, which now houses the Arizona Capitol Museum was still closed due to Covid-19 restrictions.  It is an impressive building with a copper dome (copper mining has been a huge part of Arizona’s history) and the Winged Victory statue on top.

Purchased for $150, Winged Victory changes direction with the wind—a feature drunk cowboys would take advantage of for fun.  After drinking in one of Phoenix’s saloons, the cowboys apparently would try to make Winged Victory spin by shooting it with their revolvers.

The House and the Senate are in separate 1960s-era concrete buildings on either side of the old building.

I had a chance to see the House chamber with its decorative panels of the Grand Canyon.

The House also had a sculpture of its longest serving member, Edwynne Culter “Polly” Rosenbaum (1899-2003).

Rep. Rosenbaum (D-Globe) started her legislative career in 1949 when her husband Rep. William “Rosey” Rosenbaum passed away and she was appointed to fill the rest of the term.  She served for the next 45 years until 1994–an incredible record that will never be beaten unless Arizona’s 8 year legislative term limits are repealed.

The House staff was welcoming—especially Steven at the front desk who was very knowledgeable.

Unfortunately, I could not get into the Senate chamber.  Apparently, Senate President Karen Fann (R-Chino Valley) still has not lifted her Covid-related closure of the building.  Perhaps this will happen after her “audit” of the 2020 Presidential election in Maricopa County is finished.  In a funny moment, I asked several staff members in the House Building where the Senate’s audit was taking place.  One said the ballots were now in Montana; yet another said the ballots were in Florida; one staffer said he thought the audit was finished.  It’s really hard to believe this process has been called into question!

The mall in front of the government building had several touching memorials: There is a statute honoring the Navajo Code Talkers who were so key to victory during World War II,

the anchor from the USS Arizona,

the Bill of Rights carved into large standing stones,

and a life-sized statue of a family with one parent handing the other a baby.

This statue, titled “El Pasaje” is a tribute to the workers of Arizona, who have been injured while working.  This is an especially poignant memorial given the recent political battles over immigration.

Although it was too bad I could not see everything I wanted to, it was still worth the trip.

Sanctuaries With Guns? Turning The Rule Of Law Upside Down; by Delegate David Toscano (D-Charlottesville)

December 18th, 2019 in Analysis, Federal Legislation, Local Legislation, State Legislation

The Tazewell County, Virginia, Board of Supervisors recently jumped aboard the fast-moving “Second Amendment sanctuaries” train. In doing so, they embraced positions fundamentally at odds with state and federal constitutional law. Passing resolutions opposing certain laws or protesting governmental action is perfectly consistent with our traditions as a democracy, and no one should oppose the rights of citizens and their representatives to speak their minds. But Tazewell, and a number of other localities across Virginia, want to do much more. As Eric Young, an attorney and the county’s Administrator, put it, “our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities; counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon." Other counties are announcing different schemes if gun safety laws are enacted: for example, the Culpeper County sheriff pledged to deputize “thousands of citizens” so they can own firearms.

Conservatives have railed for years against so-called “sanctuary jurisdictions,” criticizing localities that refuse to cooperate with federal immigration policies they deem heartless and ineffective. In the past year, however, some conservative lawmakers have taken a page from the progressive playbook, employing sanctuary imagery in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights under the Second Amendment.

The two approaches are classic cases of false equivalency. Jurisdictions that proclaim themselves sanctuaries for immigrants do not seek to violate the law; they simply refuse to engage local law enforcement in supporting actions that are federal responsibilities. They do not block the law, but simply insist that it should be enforced by those who have the responsibility to do so. For some proponents of so-called gun sanctuaries, however, the goal is to prevent enforcement of state law that the jurisdiction (not a court) deems unconstitutional.

After Democrats won majorities in both chambers of the Virginia General Assembly, fears of stricter gun regulations have inspired a rise in Second Amendment sanctuary activity in Virginia. Sanctuary efforts are driven mainly by the Virginia Citizens Defense League, a gun rights group to the right of the NRA.  My office’s analysis of recent news accounts indicates that before November 5, just one county had passed a resolution; since the election, at least 80 localities (counties, cities, or towns) have passed some form of sanctuary resolution, and as many as 34 more are considering their adoption.


Second Amendment sanctuaries exploded onto the national scene in early 2019 after newly-elected Democratic Gov. J.B. Pritzker pledged to pass gun safety measures in Illinois. Within months, 64 of the state’s 102 counties passed sanctuary resolutions. After New Mexico expanded background checks in 2019, 30 of 33 counties declared themselves Second Amendment sanctuaries. Similar actions have either been taken or are under consideration in Colorado, Oregon, Washington state, and now Virginia.

In some cases, these resolutions simply register an objection to any infringement on gun owners’ rights. But some Virginia localities have gone further, indicating that they will not enforce state law that they deem unconstitutional. Some proponents have even resurrected words like “nullification” and “interposition,” terms first used extensively by Southern secessionists prior to the Civil War, and more recently during the “massive resistance” to federal laws requiring desegregation in the 1960s. They argue that constitutional officers in Virginia, such as Commonwealth’s Attorneys and Sheriffs, have discretion not to enforce laws that they consider “unconstitutional.” In Virginia, there has always existed some debate about the independence of these officers, but, while they are creations of the Constitution, their duties are nonetheless "prescribed by general law or special act.” In short, sheriffs may be “constitutional officers,” but they are not “constitutional interpreters.”


The emergence of these sanctuaries demonstrates a growing rift in our nation. For residents in many rural areas of our country, guns are viewed as part of their way of life, one some fear that they will lose due to national and state changes. Most gun owners are law-abiding citizens, and any effort to limit anyone's access to firearms is perceived as a direct attack on many things that they hold dear. During the Obama years, the manufacture and purchase of firearms increased in dramatic numbers in part due to unfounded fears that the government would try to take away guns. Voting to declare themselves “sanctuaries” is a way they can reassert some control over events that they feel are putting them at risk.  For these communities, it matters little that reasonable gun safety proposals have largely passed constitutional muster, or that most proponents of these measures have no intention of taking anyone’s guns away unless it can be shown, in a court of law, that they are a danger to themselves or others.

At the same time, the general public is increasingly supportive of certain gun safety measures. An April 2018 poll found that 85 percent of registered voters support laws that would "allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others" (71 percent "strongly supported"). These measures, called Emergency Risk Protection Orders (ERPO), or “red flag” laws, create judicial procedures by which persons with serious mental health challenges deemed a threat to themselves or others can have their weapons removed until their situation is resolved; courts can be engaged to protect the rights of the accused. And a March 2019 Quinnipiac poll reported that 93 percent of American voters support a bill that would require “background checks for all gun buyers.”

The energy behind support of gun measures like "red flag" laws is generated by concern for mass shootings, which are statistically rare but dramatic in their public impact, and the increasing numbers of gun-related suicides, which impact families and communities in quiet but devastating ways. On the latter front, there is a certain irony that some communities which have embraced Second Amendment sanctuary status also have higher gun suicide rates than other communities in their state. In Colorado, for example, nine of the 10 counties with the highest suicide rate over the past 10 years have declared themselves “Second Amendment sanctuaries,” many after the state passed an ERPO law in 2019. Of the 24 Colorado sanctuary counties for which suicide data is available, 22 (or 92 percent) had firearm suicide rates above the state average. Similarly, in Virginia, 36 of the 51 localities that have adopted a resolution to date and for which firearm suicide data is available have rates higher than the state median.

Virginia State Capitol, 1785
Architects: Thomas Jefferson & Charles-Louis Clérisseau

Recent polling in Virginia tells us that citizens of the Commonwealth are in step with the national trends documented above: Roanoke College’s Institute for Public Opinion Research recently released polling results which show that 84 percent of respondents favor universal background checks, and 74 percent support allowing a family member to seek an ERPO from a court.  Yet in the very same pool of respondents, 47 percent believe it is more important to protect the right to own guns than to control gun ownership.  The only way to make the math add up is to recognize that some people who strongly support Second Amendment rights may also support at least some reasonable gun safety measures—an approach the “sanctuary” advocates would never adopt.  But even former Supreme Court Justice Antonin Scalia might have had problems with some of the arguments being advanced by proponents of sanctuaries. “Like most rights,” he wrote in District of Columbia et. al. v. Heller, “the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."  In short, rights under the Second Amendment have never been absolute.  And under both the national and state Constitutions, our courts are tasked with determining the constitutionality of laws—not local sheriffs.

Proponents of Second Amendment sanctuaries have another problem in Virginia; the Commonwealth is what we call a “Dillon Rule” state. This means that if a power is not specifically permitted to a locality, state law rules. Progressives have been especially critical of Dillon Rule arguments in years past, believing that they have prevented localities from enacting policies—from local minimum wage ordinances to gun prohibitions—that seek to go further from state law. They have rarely been concerned that more conservative localities, if granted greater “home rule,” might enact policies, such as environmental regulations or building codes, that are more lax than state law. The Second Amendment sanctuary rebellion may prompt some to reexamine their views about how much additional power should be granted to localities.

The Virginia state legislature will soon consider several major gun safety measures, and opponents will likely strongly resist; as one county supervisor has said, “[W]e need to show them a crowd like they have never seen. They need to be afraid and they should be afraid.” Legislators should always be attuned to any unintended consequences of the laws that they pass; that is one reason why we have a deliberative process before bills are passed. But to leave the determination of whether to enforce duly-passed laws totally in the hands of sheriffs and local officials with discretionary power to determine their constitutionality is to turn the rule of law upside down, and is a direct attack on republican government and the Constitution itself.

David Toscano has represented the 57th district in the Virginia House of Delegates since 2006, and from 20011-2019 Del. Toscano served as the House's Democratic Leader.  His forthcoming book is titled, In the Room at the Time: Politics, Personalities, and Policies in Virginia and the Nation.


A modified version of this opinion piece appeared on

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Who Will Save the Africa Parliamentary Knowledge Network? by Elizabeth Bakibinga-Gaswaga

December 13th, 2018 in Africa, Conference, Legal Education, Legislative Operations

The bright promise that was the Africa Parliamentary Knowledge Network (APKN) is seemingly fading away. This important project, where African parliamentarians and their staff committed to help each other build capacity and share information was making a real difference in the governance of Africa. Sadly, when the United Nation's Department of Economic and Social Advancement (UN/DESA), using funds provided by the government of Italy, stopped supporting the APKN financially a few years ago, the Network not only lost momentum, but seemingly stopped altogether. Just because the Network has been quiet, and perhaps has frayed from lack of use (the Network’s website,, is now a Japanese fashion page) does not mean that it is lost. The talented and dedicated people from the various parliaments who made the APKN so promising should take the lead and chart a new course for the Network. This will take participation from across the Continent and should be driven by African voices. This effort will also take money. It is unlikely the UN will be a source-- but perhaps between the APKN members and the partners who have already shown a willingness to support the Network, we can find a new vision and the money to make that vision a reality. For instance, the Commonwealth Parliamentary Association is a potential partner. This conversation could start at the Commonwealth Association of Legislative Counsel (CALC) conference that will take place in Livingstone, Zambia April 1-3, 2019.

The APKN was established in June 2008 by the international conference “Africa Parliamentary Knowledge Network - Building Together Open and Learning Parliaments in Africa” in Cairo, Egypt. The APKN operated under the authority of the Speakers and Presidents of APKN member assemblies--30 assemblies in all. Representatives of the APKN assemblies met in plenary every two years to approve the reports of activities, the Executive Committee's strategic action plan, and to set new priorities and goals for the next two years. The Network was “hosted" by a variety of Parliaments who took the lead in putting together conferences and led the Executive Committee. The first host was Egypt, before the turmoil and revolution in that country. The next host was South Africa, and finally the Pan-African Parliament took the lead.

During its short life, the APKN had a string of successes; thanks in large part to the tireless work of the UN/DESA technical advisors, Flavio Zeni and Dr. Cecilia Matanga. The APKN issued a comprehensive set of legislative drafting guidelines for use across the Continent to allow better informatics sharing while remaining true to best practices in legislative drafting. An assembly of drafters from APKN countries refined and ratified the Guidelines at a 2010 conference in Cape Town South Africa. In 2011, UN/DESA, in conjunction with the APKN issued a handbook on designing legislation for the free use of drafters everywhere.

Perhaps the greatest victory is that earlier this year the legislative platform designed for APKN, Akoma Ntoso V1.0 became the newest Organization for the Advancement of Structured Information Standards (OASIS) Standard— the only OASIS standard with an African name (“linked hearts” in the Akan language of West Africa) to honor those who nurtured and promoted the platform. This platform is used by many institutions around the world — the European Parliament, European Commission, the Italian and Swiss parliaments, and other parliaments in both America and Asia. Still, no African parliament has adopted Akoma Ntoso platform —perhaps because of the missing APKN.

APKN served other important functions: one was simply bringing African legislators and drafters together to meet, talk and exchange ideas at periodic conferences. In addition, the APKN LawClinics had law students at Boston University School of Law drafting legislation with African drafters and law students at African universities for parliaments in Uganda, Zambia, Liberia and the East African Legislative Assembly.

Where do we go now? At a conference in 2011, when participants asked what APKN would do next, Flavio Zeni responded, "You are APKN!" The Network was never meant to be driven by the UN or an outside partner such as a European parliament or American university.  African parliamentarians and African drafters must lead the Network and give it vitality.

Should there be a website to share legislative ideas and language like the United States' National Council of State Legislatures? Should the Network train legislative drafters? Should it train new members of parliament? Should it take position on and suggest methods for legislative reform? Should there be an annual conference, and what would be the goals of that conference?

We will send this posting to the various African parliamentary leaders, those who have been active with the APKN in the past, and to the CALC community at large. If anyone who would like to make suggestions, on either a vision for APKN or a source of funding, we will post the ideas on BU Law’s Dome blog webpage. Our hope is that we can bring several potential suggestions to the CALC conference in April for discussion amongst drafters from APKN countries and their allies. Together, we can reinvigorate APKN and support stronger parliaments across Africa.


Elizabeth Bakibinga-Gaswaga was involved in AKPN as a legislative counsel for the Parliament of Uganda and is an active member of CALC.  Elizabeth represented Africa on the CALC Executive Council and later served as CALC's Vice President.





Sean J. Kealy is a clinical associate professor of law at Boston University School of Law where he directs the legislative clinical programs.  Sean helped organize the APKN LawClinics and is an associate member of CALC

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Some Unsolicited Advice To Nancy Pelosi (and Those Who Would Replace Her)

November 1st, 2018 in Analysis, Legislative Operations, Opinion

If the “Blue Wave” materializes next week, as so many predict, you Madame Leader, will become Speaker of the House once again.  Time marches on, and as many have already pointed out, you and the rest of the top Democratic House leaders are all closing in on 80 years old.  This situation was made even worse by the loss of Democratic Caucus Chair Rep. Joseph Crowley (D-NY); a relatively young 55 years old, to a primary challenge.   There is already a movement by younger members of the Democratic Caucus for a change in leadership, but you and the other leaders do not seem to be going anywhere.  It is time, however, for you—and the rest of Congress— to take a hard look at how the House is run.  I would argue that when Congress worked—during the second half of the 20th Century— younger potential leaders were groomed for the difficult office of Speaker.  It is time to return to that practice.

The House of Representatives was most effective during the so-called “Austin-Boston Connection” that dominated the House for 55 years; from 1940 until 1995.  During nearly all of this time—from the Depression until Bill Clinton’s “bridge to the 21st Century,” the Democrats held a majority in the House.  The House consistently passed needed legislation, effectively used its oversight powers and worked with presidents of both parties; not because of sheer numbers or ideological purity—far from it.  Rather, the House worked, in large part, because leadership routinely identified and trained future majority leaders and speakers.  After years of apprenticeship, new speakers understood both how to use the levers of power and how to deal with the opposing party.

Speaker Sam Rayburn
By Samuel Taliaferro

When the great Sam Rayburn first became speaker in 1940, he had not only been the majority leader for nearly four years, he had been the speaker of the Texas House for two years—starting at the age of 29.  When he re-took the speakership for the last time in 1955, he had over 10 years previous experience as speaker and 4 more years as minority leader.  When John McCormack became speaker (1962-1971), he had been the Majority Leader for 18 years.

Carl Albert (1971-1977) was majority whip for seven years and majority leader for nine years before taking the gavel.  Tip O’Neill came to Congress after serving four years as the Massachusetts House Speaker, then served two years as majority whip and four more years as majority leader.  O’Neill’s 10 year speakership (1977-1987) became the example for a House that ideologically opposed— but worked with—a president of the same, and then another, party. Jim Wright was majority leader for 10 years before his two year speakership (1987-1989)  When Tom Foley (1989-1995) became speaker, he had been majority whip for six years and majority leader for two and a half years.  Every one of these speakers came to office trained not just how to lead their own caucus, but how to reach across the aisle and create the majorities needed to pass complicated and controversial legislation.

Compare that to the level of preparation for leadership since then. Newt Gingrich (1995-1999) had only five years of experience as minority whip.  Dennis Hastert (1999-2007) was relatively well-trained with four years as majority whip.  You, Madame Leader, (2007-2011) were minority whip for only one year.  John Boehner (2011-2015) was majority leader for one year, minority leader for four years and a committee chairman for five years.   Paul Ryan (2015-2019) was just a committee chairman for five years before being drafted to be speaker.

From 1995 until now—half of the time the Austin-Boston era, we have had five speakers who had a combined five years of prior experience running the House as either the majority whip or leader.  How did we get here?  Frankly, the Democratic leadership has stagnated and grown old.  The Republicans seem to prefer whoever will apply the Hastert Rule, to the exclusion of working with Democrats, giving outsized influence to a fringe caucus.

And what have we had since 1995?  Gridlock, government shutdowns, speakers held hostage by small minorities within their own caucus.  The difference in productivity is stunning.  From 1973-2015, nine of the ten most productive Congresses were led by Albert, O’Neill, Wright, and Foley.  The lone post Austin-Boston speaker is Hastert at #10 from 1999-2001.  The least productive Congresses during that time were the two led by Boehner—2011-2015.

Some would blame this dysfunction on the rise of the Tea Party and the Freedom Caucus. Still, talented speakers have overcome even greater challenges: Speaker McCormack passed maybe the most significant law of the 20th Century, the Civil Rights Act of 1964 with 91 members of his caucus dead set against the bill.  Now, when a few dozen members of the Freedom Caucus opposes a bill, it becomes impossible to pass. Others may say the problem is gerrymandering—but that has been a problem since the founding generation; and since the Supreme Court keeps avoiding the issue, it is not going away soon.

What does this history lesson have to say about the next Congress?  This year it has become fashionable to run for Congress as a Democrat while running against you Rep. Pelosi by name.  Gil Cisneros, who has received $2 million from the Democratic Party to run for the House, said he won’t be voting for you because, “new leadership is needed.”  Tim Ryan (D-OH) got 63 votes in the last leadership vote and Rep. Seth Moulton (D-MA) has been openly critical of the current leadership. Rep. Linda Sanchez (D-CA) has also announced her candidacy for leadership.  Perhaps this is good politics, but a new set of leaders with no experience is not in the best interest of either the Democratic Party or the House as an institution.   None of these insurgents know what they are in for.  If the House is to work—especially while dealing with the mess that is the Trump Administration— it needs a steady and experienced leader in charge.

To your credit, you have remained supportive of breakaway Democrats, “I’m OK. Just win baby.  I think many of them are saying we need…new leadership, yeah I don’t take offense at that.”   That is the right point of view for a House leader— and the Democrats are lucky to have a leader with four years of experience as speaker.

Still, you must look to the future now.  Who will lead the House Democrats next?  Are you training the next generation of leaders?  Will they be practical, unifying politicians in the mold of the Austin-Boston era?   I hear you plan to put a younger member in charge of the Caucus--and that is not enough.  In the next session, you must entrust a new generation with the majority leader and whip positions and there are some terrific options:

Rep. Jim McGovern (D-MA) has mastered one of the most important levers of House power as ranking member of the Rules Committee.  Rep. Diana DeGette (D-CO) immerses herself in complicated issues like stem cell research and gun control, and is already a deputy whip.  Rep. Terri Sewell (D-AL) is another deputy whip with experience on the Intelligence Committee.  Rep. Jim Himes (D-CT) is chair of the moderate New Democrats Coalition, a position Joe Crowley held before joining leadership.  Any two of the four would bring new blood to leadership and be a bridge to the younger members.

If the House is to work again, we need you to train a new generation of leaders.  It is time to bring back the leadership apprenticeships that worked so well during the productive Austin-Boston Connection.


Sean J. Kealy is a Clinical Associate Professor of Law and the Director of Legislative Clinical Programs at Boston University School of Law.



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Why Big Pharma Lawsuits Probably Won’t Fix Things

February 28th, 2018 in Federal Legislation, Lobbying, Opinion

By: Lindsey Pasieka

Pharmaceutical companies are sued every single day. There are literally thousands of drug and medical device-related lawsuits going on right now. And they run the gamut, from things like Pradaxa lawsuits, brought on by victims of side effects, to statewide and regional opioid lawsuits, brought on by mayors and state attorneys general. Even government agencies have been known to take Big Pharma to court over violations like dangerous products, and illicit marketing techniques.

So why don’t things change? Why do drug companies continue to hide side effects, market off-label uses and manage to stay out of jail? Well, there’s a few reasons. First, since individual marketers and CEOs are rarely the defendants, the company as a whole has a chance to absorb any penalties- and there are plenty of loopholes to reduce the effects of a guilty verdict. Second, existing laws and regulations favor companies over consumers. And just like with old laws, new laws are hugely influenced by pharmaceutical companies, and more importantly, their money.

They’re Called “Big” for a Reason

FDA approved stamp

FDA approved stamp

One of the biggest pharmaceutical companies in the world is Pfizer. As of 2014, they owned over 500 subsidiaries, and that number is only growing. In 2016, the company has a revenue of $52.8 billion. To put it simply, it is a monster of a company.

That came in handy back in 2005, when the FDA brought an action against the company for its painkiller Bextra. Bextra was approved in 2001 as an alternative to generic options; as a Cox-2 inhibitor, it was supposed to be safer for patients. However, the drug was specifically rejected for approval for post-surgical pain. Despite this, marketers for Bextra deliberately sought out surgeons and marketed the drug for their patients.

Marketing a drug for off-label or unapproved uses is a direct violation of the Food, Drug, and Cosmetic Act (FDCA). So the FDA brought charges against the company. And if Pfizer had taken the hit, the punishment would have meant exclusion from Medicare/Medicaid programs-- and an almost guaranteed financial collapse.

But here’s where being big helps out. Instead of being pinned, Pfizer made a deal so that prosecutors charged their subsidiary, Pharmacia & Upjohn Co., Inc. That company went under, and Pfizer was left only with a fine. Again, being big was beneficial. To a small company, a $1.2 billion bill would be crushing; to Pfizer, it was only 2.5% of their revenue at the time.

The Approval Process Favors Them

Many people think the approval process is too long, too full of red tape and that because of this process that new, desirable drugs can’t get to the patients that need them. When you’re on the outside of the process, it’s easy to understand that point of view. On the inside, though, the pitfalls of our process shine through. Most of those pitfalls are because we try to get things to market faster than every other country, and because money plays a role.

Currently, the FDA must respond to any application for drug approval within 10 months. That’s already outpacing most other countries. But did you know that drug companies can pay the FDA to speed up? The FDA actually has several programs like Priority Review and Fast Track, which companies can pay to get into, which shrinks the approval time to as little as 6 months. This doesn’t include the trials they need to complete before applying for approval, but it does make it difficult for the FDA to make a fully informed decision.

Take, for example, Pradaxa. The drug was submitted to a priority process in 2010, and immediately, the problems with the clinical trials became obvious. The RE-LY trial used a broad population, and excluded the older generations and those with medical conditions that would be most likely to experience side effects. A third-party safety group also discovered that the trial waths not, in fact, a double-blind study. This means that the results pulled from the study are less reliable.

Despite these issues, the FDA pushed Pradaxa through. Some would say this backfired. Within 3 months, the FDA received more serious incident reports for Pradaxa than any drug before it. In its first five years on the market, Pradaxa caused over 1,000 deaths. And it’s now the target of an onslaught of lawsuits, led by victims and their families, and it’s received a black box warning for severe bleeding risks.

Yet, on the flip side, Pradaxa is still a leader on the market for blood thinners, and it brings in billions of dollars a year. So if the lawsuit charges don’t make a dent in revenue, the FDA doesn’t take away approval, and individual employees aren’t charged, why should Pradaxa’s maker change their tactics?

They’ve got Money in Washington

If pharmaceutical companies have some money in the FDA, they have whole banks of it in lobbying. In the first quarter of 2017 alone, the pharmaceutical industry spent $78 million in lobbying. Again, this is a drop in the bucket for companies making dozens of billions a year; but to lawmakers it speaks volumes.

Our example here is the ongoing opioid crisis. Most opioid addictions begin in the doctor’s office, with a prescription. When the pill bottles run out, addicts turn to illegal opioids for a high, most often to heroin. It’s a national issue, and it’s even been addressed by President Trump on several occasions, and declared it a Public Health Emergency. Yet law and regulation changes regarding opioids and addiction are slow to come about.

A big reason is because opioids make pharmaceutical companies money. OxyContin is one of the most prescribed opioids on the market. It is used by millions of people a year, and for many, it saves them from severe, debilitating pain. Evidence shows, however, that the 12-hour drug starts to wear off after 9 hours, causing patients to experience withdrawal between doses. As Oxycontin sales quadrupled between 1999 and 2016, opioid overdose deaths rose to over 200,000-- and counting.

Still, drug makers stand behind their products, and they expect lawmakers to as well. When laws to limit prescribing behaviors were introduced in the House and Senate, Big Pharma pushed back. They went so far as to fund the Pain Care Forum, a lobbying company that spent upwards of $740 million to curb the legislation, and they continue to lobby every time a new motion is brought forward to fight the epidemic.

What We Can Do

Lawsuits don’t seem to work, the FDA falls short, and Big Pharma has Washington in its pocket. While the outlook seems bleak and none of it will be easy to fix, there are ways to improve the situation. 2018is an election year; get out and vote with consumer safety in mind. Find representatives who promise to combat these issues. If your current reps aren’t following through, hold them accountable by calling or writing in. Donate to lobbyists who represent the people, not just large companies.

You can also ask your doctor if they work with pharma reps. You can ask them to explain their medication choices to you, and bring up your concerns regarding painkillers or other drugs with serious side effects. Use your voice to protect yourself, your family and your neighbors, and together, we can work towards change.


LindseyLindsey Pasieka is an investigator and writer who focuses on public health and safety issues. Through her work, she has become an avid advocate for consumers, fighting for their right to safe products. In her role as Consumer Rights Investigator for, she focuses on health and legal topics that are essential to protecting consumers. In her spare time, Lindsey enjoys reading and spending time with her cat, Lava.

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Legislator of the Year– Senator John McCain

December 30th, 2017 in Legislative Operations, Opinion

John McCain has served in the United States Senate for nearly 31 years, and is probably due a lifetime achievement award.  This award, however, is not for his distinguished service in the US Navy, nor for his many accomplishments over three decades in Congress, nor for the honorable manner in which he ran for and lost the Presidency.  Springsteen and U2 don't win lifetime achievement awards because they keep turning out relevant hits and earning new generations of fans.  Likewise, Sen. McCain wins this year's award for his ringing call over the summer for Congress to return to regular order, backed up by his courageous break with his party during the Affordable Care Act repeal vote.

In late July, Sen. McCain returned to the the Senate to cast a critical vote to proceed to debate on the Senate's Obamacare repeal legislation.  Sen. McCain, who had just disclosed that he was diagnosed with an aggressive form of brain cancer, then offered a passionate plea to his fellow senators:


"I've known and admired men and women in the Senate who played much more than a small role in our history, true statesmen, giants of American politics. They came from both parties, and from various backgrounds. Their ambitions were frequently in conflict. They held different views on the issues of the day.  And they often had very serious disagreements about how best to serve the national interest.1200px-John_McCain_official_portrait_2009

"But they knew that however sharp and heartfelt their disputes, however keen their ambitions, they had an obligation to work collaboratively to ensure the Senate discharged its constitutional responsibilities effectively. Our responsibilities are important, vitally important, to the continued success of our Republic. And our arcane rules and customs are deliberately intended to require broad cooperation to function well at all. The most revered members of this institution accepted the necessity of compromise in order to make incremental progress on solving America's problems and to defend her from her adversaries.

"That principled mindset, and the service of our predecessors who possessed it, come to mind when I hear the Senate referred to as the world's greatest deliberative body. I'm not sure we can claim that distinction with a straight face today.

"I'm sure it wasn't always deserved in previous eras either. But I'm sure there have been times when it was, and I was privileged to witness some of those occasions.

"Our deliberations today -- not just our debates, but the exercise of all our responsibilities -- authorizing government policies, appropriating the funds to implement them, exercising our advice and consent role – are often lively and interesting. They can be sincere and principled. But they are more partisan, more tribal more of the time than any other time I remember. Our deliberations can still be important and useful, but I think we'd all agree they haven't been overburdened by greatness lately. And right now they aren't producing much for the American people.

"Both sides have let this happen. Let's leave the history of who shot first to the historians. I suspect they'll find we all conspired in our decline --either by deliberate actions or neglect. We've all played some role in it. Certainly I have. Sometimes, I've let my passion rule my reason. Sometimes, I made it harder to find common ground because of something harsh I said to a colleague. Sometimes, I wanted to win more for the sake of winning than to achieve a contested policy.


"Our system doesn't depend on our nobility. It accounts for our imperfections, and gives an order to our individual strivings that has helped make ours the most powerful and prosperous society on earth.  It is our responsibility to preserve that, even when it requires us to do something less satisfying than 'winning.' Even when we must give a little to get a little. Even when our efforts manage just three yards and a cloud of dust, while critics on both sides denounce us for timidity, for our failure to 'triumph.'

"I hope we can again rely on humility, on our need to cooperate, on our dependence on each other to learn how to trust each other again and by so doing better serve the people who elected us. Stop listening to the bombastic loudmouths on the radio and television and the Internet. To hell with them. They don't want anything done for the public good. Our incapacity is their livelihood.

"Let's trust each other. Let's return to regular order. We've been spinning our wheels on too many important issues because we keep trying to find a way to win without help from across the aisle. That's an approach that's been employed by both sides, mandating legislation from the top down, without any support from the other side, with all the parliamentary maneuvers that requires.


"I voted for the motion to proceed to allow debate to continue and amendments to be offered. I will not vote for the bill as it is today. It's a shell of a bill right now. We all know that. I have changes urged by my state's governor that will have to be included to earn my support for final passage of any bill. I know many of you will have to see the bill changed substantially for you to support it.


"Why don't we try the old way of legislating in the Senate, the way our rules and customs encourage us to act. If this process ends in failure, which seem likely, then let's return to regular order.

"Let the Health, Education, Labor, and Pensions Committee under Chairman Alexander and Ranking Member Murray hold hearings, try to report a bill out of committee with contributions from both sides. Then bring it to the floor for amendment and debate, and see if we can pass something that will be imperfect, full of compromises, and not very pleasing to implacable partisans on either side, but that might provide workable solutions to problems Americans are struggling with today.

"What have we to lose by trying to work together to find those solutions? We're not getting much done apart. I don't think any of us feels very proud of our incapacity. Merely preventing your political opponents from doing what they want isn't the most inspiring work. There's greater satisfaction in respecting our differences, but not letting them prevent agreements that don't require abandonment of core principles, agreements made in good faith that help improve lives and protect the American people.


"The success of the Senate is important to the continued success of America. This country --this big, boisterous, brawling, intemperate, restless, striving, daring, beautiful, bountiful, brave, good and magnificent country -- needs us to help it thrive. That responsibility is more important than any of our personal interests or political affiliations."


A few days later, Sen. McCain carried out his promise to vote against a bill that he continued to see as an "incomplete shell."  His vote doomed the effort to "repeal & replace" the Affordable Care Act.

Amazingly, after being elected to Congress as a Reagan Republican, and running as the GOP candidate for President, Sen. McCain now has a higher favorability among Democrats and independents than Republicans.  In December 2017, a CCN poll showed 68% of Democrats and 48% of independents had a favorable opinion of the Senator, whereas only 46% of Republicans felt the same.  In this toxic political time, some Republicans even whisper that Sen. McCain is a RINO, a "Republican In Name Only," especially after his health care vote in August. That is truly sad.

What is more conservative than demanding Congress, the branch that has the greatest capacity to do good or harm to the Republic, operate by its own time-honored traditions and rules and subject major bills to bi-partisan scrutiny and amendment before passage?  Many Republicans railed against these practices when former Democratic Leader Harry Reid recklessly used the "nuclear option" to end most judicial filibusters, and routinely "filled the tree" to prevent consideration of Republican amendments.  Yet once the GOP gained control of the Senate, they too placed ideology and winning over creating bipartisan agreement on important issues.

A strong functioning Congress is especially important now.  President Trump is a small man—seemingly devoid of ideals or morals.  He cares nothing for policy details, but just his own image and “winning” deals.  His “leadership” has demoralized executive agency personnel and harmed the nation's image oversees.   Senators should try to emulate the legends that went before them--Goldwater, Kennedy, Dirksen, Inouye, Ervin, Taft, Fulbright--and now McCain.  The House leadership should be taking the example of Cannon, Rayburn, Martin and O'Neill-- and stop kowtowing to the so-called "Freedom Caucus."  Congress needs to pull itself together to first balance, and then cure, Trumpism.

For his bold and timely call for a return to regular order, Dome is pleased to name Senator John McCain our Legislator of the Year.

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Can Mandatory Liability Insurance Stem Police Brutality? By: Phil Schneider

July 21st, 2016 in Analysis, Local Legislation, News

The deaths of Michael Brown in Ferguson, Missouri and Freddie Grey in Baltimore has placed a spotlight on the problems of police brutality and misconduct. Responding to those deaths and other examples of police abuses, large scale protests, some of which have turned violent, and the Black Lives Matter movement have become prominent parts of a national discourse. Now the shootings of Philandro Castile in Minnesota and Alton Sterling in Louisiana, as well as the shootings of police officers in Dallas and Baton Rouge have made addressing the issue of police misconduct all the more urgent.  An innovative idea being proposed to Minneapolis voters may be part of the solution.

In addition to the individual loss of life and suffering caused by police misconduct, there has been a larger societal cost.  In 2015, after several years of decline, the murder rate rose 17%  in the largest 56 cities in the country. Professor Richard Rosenfeld, writing for the National Institute of Justice, recently argued that community distrust of the police has made it impossible for police officers to do their jobs.  Citizens often view the police less as partners in the community and more as invading armies, especially in minority majority inner cities.  People in such communities have no faith in the police protecting them, and thus are much less likely to provide the assistance needed to close cases.

Several different policy approaches have been suggested to help improve these poor police / community relations including: bias training, increased data collection and body cameras.  Each of these have been tested in different jurisdictions.

After the November 2015 police shooting of Jamar Clark, however, activists in Minnesota proposed a different approach; a ballot question that would require all police officers to purchase professional liability insurance, similar to the malpractice insurance carried by doctors.  The base rate would be paid by the city, but the individual officers would be responsible for any additional rate raises due to personal or claims history. The hope is that this would price out police officers with multiple offenses, using market forces to remove uncontrollable police officers with multiple offences and encourage other officers to mitigate their behavior.  Supporters of the law have pointed to cases like Officer Tyrone Barze Jr., who has been the subject of seven separate lawsuits and has cost the city over $300,000 dollars in settlements.  Under a system of liability insurance, officers like Barze would be priced out of a job.

Minneapolis City Hall

Minneapolis City Hall

The proposal also hopes to shift some of the financial burden of civil rights settlements away from the taxpayers.  In 1961 the Supreme Court ruled in Monroe v. Pape that police officers can be individually liable for civil rights violations. However primarily through pressure from police unions, individual liability for police officers vanished.  Civil service unions are required to defend all of their members, even those who demonstrate bad conduct. In addition municipalities have incentives to quickly settle lawsuits rather then risk large jury settlement. Those two forces have combined to create a system where brutal and corrupt police officers are protected from disciplinary action and can continue to serve even after a pattern of malfeasance is established.  From 2006 to 2011 the 44 largest jurisdictions paid out approximately $735 million in civil rights claims, police officers personally paid less the .02% of that money.  Current Minnesota state law requires municipalities to cover payouts in cases where the harm was purely accidental and the police officer was acting within their duties.  For cases where the officer was negligent or criminal the current ballot amendment would shift much of cost of settlements onto insurance companies.

Police groups and crime researchers have expressed several objections to the Minneapolis proposal, calling it “simplistic.” They argue that liability insurance would warp incentives for police officers. Officers may be unwilling to take the aggressive actions that are required for their jobs. The system would encourage officers to sit in their patrol cars, which would slow response time and hinder preventative policing. In addition the amendment brings up issues of due process. Insurance companies operate by manipulating and limiting risk. With mandated liability insurance, officers could have their rates increase even if they are found not legally responsible. In addition insurance companies would have a strong incentive to quickly settle cases and force higher rates on the officers accused. Insurance companies are profit-making institutions, and there is legitimate concern about offloading judicial decisions on companies whose prime goal is making money. Whether police officers keep their jobs could be made not by courts or oversight boards, but by actuary tables.

Despite these real drawbacks, the Minneapolis ballot initiative is an interesting test case. Federalism allows states and municipalities to experiment with out of the box solutions. The problems of police brutality and the related lack of community involvement and trust have created a dangerous situation in many of America’s cities. The impact of requiring liability insurance is still unknown, but this problem is so serious that unique approaches are worth trying. On July 13, 2016, the Minneapolis City Council approved putting the measure on the ballot.  Hopefully, this will be a test case to help alleviate one of the most serious problems our cities face.


By: Phil Schneider <>

Legislators of the Year 2015

December 22nd, 2015 in Federal Legislation, Legislative Operations, Opinion

In our inaugural Legislator of the Year Award, the staff of Dome is pleased to recognize Rep. Elijah Cummings (D- MD) and Speaker Paul Ryan (R-WI).

Elijah Cummings

Rep. Elijah Cummings really earned this award in April and May during and after the riots in his home town of Baltimore protesting the death of Freddie Gray. The Freddie Gray case was one of the true low points in a year filled with low points concerning race relations and the conduct of police officers around the country. Incident after incident made minority communities feel besieged in their own neighborhoods by an apparently aggressive, militarized and racist police force. For their part, the police have an extraordinarily difficult job and often feel unduly criticized when force is used in dangerous circumstances and when the officer legitimately feels threatened.  This fissure in our society deepened and widened this year and is a complex social problem that will likely take years to fully understand and address.

Still, during one of the darkest moments of the spring, Rep. Cummings took a leadership role and provided not only a voice of reason, but rallied his community to act in a thoughtful and positive manner to seek justice and reform.

He called for peaceful protests that would lead to change while praising the restraint of the Baltimore Police. He pushed for a stop to the violence that tore at Baltimore and helped clear the streets during a mandatory curfew. He also lent an eloquent voice to a community seeking justice. At Mr. Gray’s funeral Rep Cummings spoke directly to Gray’s mother, "For me, I am in the twilight years, but I am telling you we will not rest, we will not rest until we address this and see that justice is done. … We will not fail you.”  Rep. Cummings welcomed a Federal probe into the Baltimore Police, hoping the investigation would lead to improved relations between the police and the community, “The community needs the police and the police need the community to solve crime.”Elijah Cummings

When something like this happens, a community typically looks to and rallies around local leaders—pastors, city councilors and mayors. Congressmen, with big districts, focused on federal issues, and spending much of their time in Washington, are naturally not as close to a particular neighborhood or constituency.   It is a great testament to Rep. Cummings that when Baltimore needed a reassuring—yet outspoken—presence, they turned to him.

Earlier this month the first prosecution of a police officer involved in the Gray Case ended in a mistrial. Even before the decision, Rep. Cummings again called for calm, “Our future as a more just community will depend more upon our own actions than it will upon the decision of Officer Porter's jury.”

Mr. Gray’s death could have resulted in politicians scoring cheap political points by whipping up the crowd. Fortunately, Baltimore has been blessed with Rep. Cummings who at once is a stabilizing force for the community while also calling for much needed reform.

Rep. Cummings could have been a Legislator of the Year for service to his community, but he also played a crucial role as an opposition leader in the House. He continued to be a key voice on the House Committee on Oversight and Government Reform, playing the foil to Chair Jason Chaffetz (R-UT). More importantly, he agreed to serve as the Ranking Member on the House Select Committee on Benghazi. This never-ending inquiry seems to be nothing more than an attempt to hurt Hillary Clinton’s presidential campaign. The Committee reached its lowest point on October 22, 2015 when Chair Trey Gowdy (R-SC) kept Secretary Clinton on the witness stand for a ridiculous 11 hours. Rep. Cummings was outstanding throughout; pointing out the needless badgering of the witness by his fellow committee members and countering the political—and at times outrageous—lines of questioning.

Some of his constituents want Rep. Cummings to run for the Senate. The Senate’s gain would be the House’s loss—the House needs his leadership now more than ever.


Paul Ryan

This must have been a shocking autumn for the young representative from Wisconsin. Not that he ascended to a position of great power in Washington; the talented Rep. Ryan has always been headed in that direction. His intelligence, creativity and work ethic propelled him first to the chair of the Budget Committee and more recently to the Ways and Means Committee. In many ways he has been the true policy driver of the Republican Party in the Capitol during a time of thoughtless ideology and bumper sticker level political attacks. Speaker Ryan has already been the GOP’s vice presidential pick, and likely was headed to leading the ticket at some time in the future.

And then John Boehner stepped down as Speaker.

Mr. Boehner finally had enough of the backstabbing “Freedom Caucus” and his inability to get any sort of legislation—even essential spending and debt limit bills— through his own chamber without a major struggle because the bills were not ideologically pure enough for a semi-secret cabal of representatives. Then the “Freedom Caucus” refused to support Mr. Boehner’s logical successor Rep. Kevin McCarthy (R-CA). With the subsequent disarray, the caucus turned to a reluctant Rep. Ryan to take the gavel.Paul Ryan

Speaker Ryan was right to be reluctant for a multitude of reasons:

First, he was never on the “leadership track,” training to be Majority Leader or Speaker. There is a reason people apprentice with leadership, and why the Austin-Boston Connection was so successful for so many decades. Leadership must deal with the Senate and the President and protect the House while making reasonable compromises.  Leadership must skillfully interact with the press and craft a message that—again—protects and benefits the House membership. Leadership must devote considerable time to what David Hawkings calls “the member services dark arts.”  Much of this will be new to Speaker Ryan, who has devoted his legislative career to committee work.

Second, the problems that took down Speaker Boehner will only grow. The “Freedom Caucus” is newly emboldened and will continue to hold a sword over the Speaker’s head. Outside groups will no doubt start calling him a RINO or Squish every time he makes a compromise. The Republican Caucus will continue to be a fractured and difficult to manage, especially in an election year.  The new Speaker, therefore, will have all the challenges that made Speaker Boehner happily give up the gavel.

Finally, this was not part of his personal plan. Until this autumn, Speaker Ryan had an excellent chance to be a serious presidential contender in the not too distant future.  Will he still have that chance after a stint as the Speaker?  He will suffer many slings and arrows from both sides of the aisle. And history has not been kind—only James K. Polk successfully used the Speakership as a stepping stone to the Presidency, and only after being governor of Tennessee in between.

And yet Speaker Ryan put all of that aside and took the gavel. He put the House and the Congress above himself and his personal ambition.  Congress desperately needs the stability he will bring, and therefore, Speaker Ryan is a very worthy Legislator of the Year.