2012 State Election Preview The November 6, 2012 election is expected to bring unprecedented change to the makeup of the state legislatures. Not only will over 81 percent of the nation’s state legislative seats be up for grabs, but the once-in-a-decade convergence of term limits and redistricting changes is likely to produce unusually high levels of turnover. The election also comes on the heels of the 2010 midterm elections, which resulted in a turnover of almost 24 percent of lawmakers, and having two high-turnover cycles back to back makes it possible that the number of seats changing hands in 2012 will break records.1 These changes also make it likely that at the start of the 2013 legislative sessions, approximately half of all state legislators will have served for two years or less.2 The state-level elections could also feel a strong impact from the closely-contested race for the White House. Polling currently gives Democratic President Barack Obama a +1.2 advantage over his opponent, Republican Governor Mitt Romney, but by all accounts the race remains too close to predict.3 The Impact of Term Limits Term limit restrictions will affect the 14 states that have adopted term limits and that hold legislative elections during even numbered years: Arizona, Arkansas, California, Colorado, Florida, Maine, Michigan, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma and South Dakota. Louisiana also has term limits but does not have a general election for their legislature in 2012. Altogether, 248 current state legislators will have to leave office after the November elections because of term limits. Depending on the number of incumbents that lose, the Florida Legislature could be one- quarter new, the Colorado Legislature could be at least one-third new and the California Assembly could be 40 or even 50 percent new.4 1 Governing, State Legislatures May Experience a Mass Exodus at: http://www.governing.com/blogs/politics/state- legislatures-experience-mass-exodus.html (May 25, 2012); Ballotpedia, 2012 state legislative elections analyzed using a Competitiveness Index at: http://ballotpedia.com/wiki/index.php/2012_state_legislative_elections_analyzed_using_a_Competitiveness_Index (accessed June 21, 2012). 2 National Conference of State Legislatures (NCSL), A Majority of State Legislators May Have Two Years or Less of Experience in 2013 at: http://ncsl.typepad.com/the_thicket/2012/05/a-majority-of-state-legislators-may-have-two-years-or-less-of- experience-in-2013.html (May 25, 2012). 3 Real Clear Politics, General Election: Romney vs. Obama at: http://www.realclearpolitics.com/epolls/2012/president/us/general_election_romney_vs_obama-1171.html (accessed July 23, 2012). 4 Governing, id., supra note 1; National Conference of State Legislatures (NCSL), The Term Limited States at: http://www.ncsl.org/legislatures-elections/legisdata/chart-of-term-limits-states.aspx (accessed June 22, 2012); Ballotpedia, The Impact of Redistricting Elections immediately following the decennial redistricting process historically have higher numbers of open seats and bring in more new legislators than in typical election years. In the 2010 cycle Republicans had a huge advantage, exclusively controlling redistricting in 202 districts, while Democrats held authority in 47, bipartisan or citizen commissions drew 92, control was divided in 87 and seven districts were in at-large states that did not require redistricting. For the most part, Republican-controlled legislatures focused their redistricting efforts on shoring up vulnerable incumbents and cementing their control over important seats instead of trying to expand their majorities. The effect of this kind of nuanced change is hard to see on paper – the New York Senate is the only legislative chamber in the country that will be adding a seat due to redistricting – bringing the total number of seats in all state legislatures to 7,383 – and, factoring in all of the finalized new maps, Republicans were only able to pick up one seat from Democrats.5 However, Cook Political Report argues that the one seat gained from Democrats actually represents about 10 to 15 seats being fortified for the GOP, given that the majority of legislators who benefited from redistricting were Republicans.6 How Will Turnover Affect State Legislatures? Having such a high number of new lawmakers is sure to have an effect on the operations and effectiveness of state legislatures. Governing Magazine highlighted the following as possible effects of this kind of change7: Replacing experienced lawmakers with new ones can mean a loss of institutional memory, giving unelected officials such as aides and lobbyists greater influence and shifting the focus towards partisanship and ideology. Term limits may end up reinforcing a state’s majority party because minority parties – especially those in small-population states – may find it hard to produce enough credible candidates to replace their party members who are termed-out. New, term-limited lawmakers that aspire for leadership positions must ascend quickly, which makes them more likely to focus on ideology, personality and fundraising, instead of effectiveness or learning the procedural and substantive ropes. Impact of term limits on state legislative elections in 2012 at: http://ballotpedia.com/wiki/index.php/Impact_of_term_limits_on_state_legislative_elections_in_2012 (accessed June 22, 2012). 5 NCSL, 7,383 at: http://ncsl.typepad.com/the_thicket/2012/06/7383.html (June 19, 2012). 6 Cook Political Report, 2012 Cook Political Report Redistricting Outlook at: http://cookpolitical.com/node/10516 (accessed June 22, 2012); Red State, Cook: State Republican parties gave national GOP 9 seats for 2012 at: http://www.redstate.com/moe_lane/2012/04/15/cook-state-republican-parties-gave-national-gop-9-seats-for-2012/ (April 15, 2012). 7 Governing, id., supra note 1. Experienced lawmakers have developed working partnerships with those across the aisle, while new lawmakers lack those relationships and may act aggressively or be less willing to cooperate. Impact of Citizen’s United & Super PACs on state elections On January 21, 2010, the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that the federal government may not prohibit direct corporate and union spending on advertising for candidates’ elections. The ruling blurs the lines between corporate and individual contributions in political campaigns and strikes down part of the 2002 McCain-Feingold campaign finance law that banned unions and corporations from paying for political ads in the final days of campaigns.8 The ruling does not directly affect state laws, but it is having a profound effect on the laws governing corporate political activity in the 24 states that, as of the ruling, prohibited or restricted corporate and/or union spending on candidate elections.9 Many of those states have or are considering repealing or re-writing their laws to avoid legal challenges under the new standard set by the Supreme Court; others have chosen to stop enforcing their laws. The ruling is also credited with and/or blamed for creating a new class of political action committees – known as Super PACs – which make no contributions to candidates or parties and therefore can accept unlimited contributions from individuals, corporations and unions. These Super PACs have to a degree replaced political parties as a conduit for large, often anonymous contributions, giving donors a way to exceed the $2,500 individual contribution limit and to circumvent the bar on corporate and labor contributions to federal candidates.10 A January 2012 Pew Center poll found that 78 percent of those who have heard a lot about these new rules on independent expenditures say they are having a negative effect on the 2012 presidential campaign.11 The impact of the ruling on state legislative races is not really known yet, though some expect the amount spent by Super PACs to be sizeable.12 A report from the National Institute on Money in State Politics recently found that donors who gave $25,000 or more to Super PACs in 2011 also donated $36.8 million to state campaigns during the 2008-2010 elections. The report says that the role Super 8 National Public Radio, Supreme Court Rips Up Campaign Finance Laws at: http://www.npr.org/templates/story/story.php?storyId=122805666 (January 21, 2010). 9 NCSL, Life After Citizens United at: http://www.ncsl.org/legislatures-elections/elections/citizens-united-and-the- states.aspx (accessed June 21, 2012); 10 Slate, Super-Soft Money at: http://www.slate.com/articles/news_and_politics/jurisprudence/2011/10/citizens_united_how_justice_kennedy_has_pav ed_the_way_for_the_re.html (October 21, 2011). 11 Pew Research Center, Super PACs Having Negative Impact, Say Voters Aware of 'Citizens United' Ruling at: http://www.people-press.org/2012/01/17/super-pacs-having-negative-impact-say-voters-aware-of-citizens-united-ruling/ (January 17, 2012). 12 Columbia Journalism Review, Super PACs at the State Level: A Different Story, at http://www.cjr.org/the_kicker/super_pacs_at_the_state_level.php (April 16, 2012). PACs play in state elections will be uncertain until nearer the 2012 elections, but predicts that the donors supporting them are likely to continue giving at both the state and federal levels.13 The institute argues that it may be months before reporters have access to much data on that spending, because super PACs have historically mostly focused on federal races and because states’ reporting deadlines are generally much later