17 Issues Facing State Legislatures in 2019

by John Haughey // Nov 26, 2018 FiscalNote State

At least one-fifth of the nation’s 6,073 state legislators will be first-term lawmakers when the sessions convene in 2019 — or, in the cases of Maine and California, in December.

With that wave of 1,650 new faces come new ideas in 87 of the 99 state legislative chambers.

Many new lawmakers will start their new roles by authoring and pre-filing bills before the 2019 sessions begin, to make good on campaign pledges.

Tracking those pre-filed bills, especially after elections where there’s significant legislature turnover, is a key tactic to identifying the emerging issues and influences that will shape the upcoming legislative session.

Regardless of a legislature’s constitution and party configuration, however, most of the issues that occupied lawmakers in 2018 will, again, be recurring themes in 2019’s state chambers.

Excluding the inevitable ditch digging of budgets, infrastructure, tax/fiscal policy, healthcare, environmental regulation, and education, the 17 issues below, arbitrarily numbered, are among the concerns on legislative agendas — and could find traction in the form of 2019’s introduced bills.

Opioid epidemic: Legislatures in 45 states considered more than 480 bills in 2018 related to policies to prevent and intervene in opioid misuse and overdose, according to FiscalNote’s state solutions software.

In fact, every state has enacted some type of measure addressing opioids in the past two years, with the bipartisan support, in most states.

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In 2019, the legislative emphasis will include measures relating to treatment, recovery, child welfare, and criminal justice reform – which itself will be, once again, a topic of legislative emphasis in upcoming sessions across the nation.

Immigration: Immigration is a federal responsibility, but services for newcomers are determined and provided by states – regardless of legal status in many cases, simply because they live in local and state jurisdictions.

According to FiscalNote there was a lull in immigration-related bills in state legislatures in 2018, down slightly from the 133 laws adopted in 47 states in 2017.

This slight dip in 2018 could be attributed to the Trump Administration’s attempts to maneuver a controversial federal immigration reform package through the Republican-controlled Congress, as well the November midterm elections, in which immigration was a push-button issue, especially for Republicans.

The build-up to the 2018 elections may have tempered controversial or overtly partisan legislative action regarding state immigration policies and services in some states.

That will not be a factor in 2019, regardless of party configuration, although the proposed solutions could change in some chambers.

Federal deregulation: The Trump Administration is working quietly in the background to fulfill a campaign promise to “audit” federal regulations that will mean rolling back a targeted 80 percent of all federal rules, regulations and agreements in almost every realm of oversight — including environmental, education and labor.

The fallout from federal deregulation is something state lawmakers will be contending with, perhaps increasingly so through biennium sessions and beyond.

Cybersecurity: At least 38 states, D.C. and Puerto Rico introduced more than 277 bills or resolutions related to cybersecurity in 2018, particularly in regard to state elections systems, according to FiscalNote.

That will remain a legislative emphasis, in anticipation of the 2020 general election, with additional focus in 2019 on improving and funding government security practices, restricting access and disclosure of sensitive information, as well as on creating systems, policies, and training programs to ensure cybersecurity safeguards.

State education plans: Always an exhaustive realm for state lawmakers, but with the Every Student Succeeds Act (ESSA) rolling back federal involvement in education policy and administration, this component of federal deregulation will remain an intensive emphasis in state legislatures in 2019.

Marijuana: Bills relating to the legalization of medical and/or recreational marijuana have been introduced in every state in one form or another and will continue to be a hot topic of legislative discussion in 2019.

Eight states and the District of Columbia have legalized marijuana for adult recreational use, while 29 states, D.C., Guam, and Puerto Rico, have legalized medical marijuana. Forty-six states have legalized access to some low-THC cannabis products.

There is increasing bipartisan emphasis in resolving the discord between state legalization laws and federal law, which still define marijuana as a narcotic-level drug, a classification widely regarded as archaic, but which still affects taxation, banking and other issues – small business loans, for instance – restraining the growth of a job-creating, revenue-generating industry.

Autonomous vehicles/artificial intelligence: According to FiscalNote, at least 44 states and D.C. have considered various policies on autonomous vehicles in the last five years, primarily addressing the testing and operation of these vehicles.

Now, the “second tier” replicable substrate of regulatory emphasis — insurance, privacy, cybersecurity — is manifesting in the form of introduced bills. That trend will continue, if not accelerate, in 2019.

It’s the tip of a spear rapidly hurtling toward all legislators at all levels.

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With the pervasive emergence of artificial intelligence technologies, state lawmakers have been more nimble than their Congressional counterparts in staking state prominence —and competition among each other — in a rapidly evolving field of economic development.

Adjusting to federal tax reform: The elimination of the deduction for state and local taxes in the 2017 federal tax reform bill has led to higher property taxes for millions of middle-class taxpayers and put local and state lawmakers under pressure.

The fallout from this was felt by state legislatures in 2018, but in 2019, the repercussions will induce a spike in legislative action.

Revising state and local tax laws to help taxpayers recover from the loss of the federal deduction was a popular campaign pledge nationwide in November’s elections.

Also of common concern in state capitols is the status of tax-exempt municipal bonds governments rely on to fund infrastructure and other public improvements.

5G technologies: In 2018, more than 20 states passed bills advancing the infrastructure incorporation of mobile fifth-generation (5G) wireless systems, the next wireless technology upgrade.

A significant distinction in recent state emphasis has been in defining jurisdictional state, county, town regulatory boundaries in response to recurring conflicts between mobile phone carriers and local governments, many resulting in heated battles in communities across the country.

The industry wants less restriction, bureaucracy and expense in using existing infrastructure, such as utility poles and streetlights, and in building towers. Local governments are hesitant to concede their authority in zoning and land-use regulation to technology companies or, for that matter, to state lawmakers, ensuring it will continue to be a source of proposed legislation and regulation in 2019.

Healthcare/Medicaid: Despite a frantic effort to elevate immigration reform as the most pressing issue facing voters in the mid-term elections, polls never wavered: Healthcare was the no. 1 issue on voters’ minds.

November’s elections essentially determined if the Trump Administration would have a Congress it could – in its fourth attempt – repeal the Affordable Care Act (ACA) with.

At the state level, expanding, adjusting, and capping Medicaid financing will remain a 2019 issue of legislative emphasis, regardless of party configuration, although the proposed solutions could change in some chambers after November’s elections.

Among concerns will be Trump Administration rules shortening enrollment periods for federally-run exchanges, significantly cutting funds for enrollment assistance/outreach, ending cost-sharing subsidies to insurance companies, and rolling back requirements for employers to include birth control coverage in health insurance plans.

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While the federal government funds Medicaid, states – which are primarily responsible for regulating insurance – have a great deal of discretion in determining how that money is disbursed.

More than 75 million Americans are enrolled in Medicaid. Since the 2012 U.S. Supreme Court ruling that confirmed each state’s right to opt out of the ACA, debates on expanding Medicaid have occupied many State House sessions.

Only 14 states have not expanded their Medicaid programs to one degree or another under the ACA. Of the four states with Medicaid expansion proposals on the ballot in the November 2018 elections – Nebraska, Idaho, Utah, and Montana – only Montana failed to pass the proposal.

Section 1115 waivers (state-requested exemptions to standard Medicaid rules to promote innovation by encouraging new “care models” that deliver more bang for the buck) and Section 1332 innovation waivers (ways to lower costs of prescription drugs and numerous other initiatives, including prevention and wellness services and increasing the use of “telehealth” services), will be among healthcare-related topics of legislative emphasis in 2019 state legislatures

Gun control: Firearms-related legislation has been a huge issue in state legislatures for more than 20 years, but in 2018, the sustained nationwide trend in state lawmakers expanding gun-rights ended in the wake of the Valentine’s Day school shooting in Parkland, Florida.

According to FiscalNote, 126 firearms-related bills were passed by state legislatures in 2018, which include banning bump stocks after October 2017’s Las Vegas shooting, and “red flag” laws that allow police to temporarily seize guns from individuals showing signs of mental instability or violence.

Fourteen states with Republican governors and GOP-controlled legislatures adopted more than 50 new gun control laws, while eight states adopted laws expanding gun access, according to the NCSL.

The most significant state gun control measure adopted in 2018 was in Florida. A traditionally gun-friendly state, it now imposes a three-day waiting period to buy firearms. It has also raised the purchasing age from 18 to 21, among other restrictions, in the wake of the Parkland school shooting, the state’s third mass shooting in less than two years.

Expect this trend to continue in 2019, with the legislative emphasis on background checks; assault weapons; “red flag” restrictions for domestic violence; mental health; criminal penalties for gun-related crimes; open carry; and revisions to existing ‘Castle Doctrine’ and ‘Stand Your Ground’ self-defense laws.

Occupational licensing reform: In 2018, 15 states enacted 22 laws to reform their requirements and procedures to obtain an occupational license, according to FiscalNote.

The legislative emphasis was part of a continuing effort to whittle back the burdens placed on businesses, especially locally-owned and operated businesses, by local and state licensing for everything from hair salons to home-based subsidiary businesses.

According to the National Council of State Legislatures (NCSL), in the last 60 years, the number of jobs requiring an occupational license, or government approval of some sort, to practice a profession, has grown from about 1-in-every-20 occupations to more than 1-in-every-4.

The move to reform occupational licensing is expected to accelerate in 2019, not only to relieve small businesses of regulatory burdens, but to iron out differences and disparities in laws from one local government to another, and across state lines.

Adopting E-Verify: A component of the broader immigration policy and services issue, lawmakers in many states have consistently pushed in recent years for mandatory application of the federal E-Verify system that allows employers to verify the legal work status of new employees.

Administered by the U.S. Department of Homeland Security in partnership with the Social Security Administration, nine states require E-Verify for all employers, with varied exemptions for small businesses, while 22 states require it for at least some public and/or private employers, and 11 require it for most public employers.

In addition to making E-Verify mandatory for most employers, eliminating loopholes in the system, such as the common practice of hiring contractors instead of employees to avoid labor practice scrutiny, will be among issues forwarded during many 2019 legislative sessions.

‘Fair Work’ scheduling: This is an emerging issue fostered by the accelerating impacts of automation, in this case, software increasingly being used by large employers to “micro-schedule” workers by the hour.

Oregon became the first state to pass a “fair work scheduling” law in 2018, requiring retail, food service and hospitality businesses with at least 500 employees worldwide to make work schedules available two weeks in advance.

This is another tip of the unintended-consequences-of-technology spear coming lawmakers way.

The development and widespread use of inexpensive on-demand scheduling software, means businesses – especially large companies – can adjust staffing needs by the hour.

That’s a good thing for businesses, but not so much for workers, who may not know until the last minute if they are working from one day to another.

Laws requiring “fair work scheduling” have thus far primarily been adopted at the local level – New York City, San Francisco, Seattle – and often require “reporting pay,” mandating employees be compensated if sent home early.

“Fair work scheduling” bills were proposed in Connecticut, Maryland, Massachusetts and New Jersey in 2018. Expect more to be proposed in 2019.

Redistricting: State lawmakers in 2019 will be jockeying for momentum in influencing how the post-2020 Census nationwide redistricting of state congressional and representative districts unfold.

According to Ballotpedia, no less than one-eighth of state lawmakers who will be orchestrating that post-2020 Census redistricting were elected in November.

Democrats, after suffering state-level losses across the nation since 2010 before the last Census redistricting, dominated the process in the 1970s and 1980s. Republicans have since taken that advantage, “gerrymandering” districts in a way that benefits them.

Redistricting rules vary by state, but state legislators are responsible for the process in 37 states. Seven of the least populated states — Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, Wyoming — do not need to redistrict.

Redistricting will not generate many bills in state legislatures in 2019, but it will be a pervasive undercurrent in committee appointments and bureaucratic structure within newly configured chambers and gubernatorial administrations.

Legal Sports Wagering: May’s Supreme Court ruling striking down a 1992 federal law effectively banning commercial sports betting in most states came as many states had already adjourned for the year.

But after New Jersey’s 10th Amendment victory overturned the federal Professional and Amateur Sports Protection Act, state lawmakers in 2019 will be pondering legislation aimed at cashing in on what is estimated to be a now-taxable $150 billion annual industry.

In the wake of the Supreme Court ruling, nine states in 2018 opened the doors to legal sports wagering in legislation, simply by incorporating it as an already regulated activity in adopted budgets in several cases.

Meanwhile, at least 20 state legislatures have pending laws awaiting regulatory refinement to be determined by lawmakers in those chambers as well. It will likely be nationwide in 2019.

Post-Quill Online Sales Tax Collections: The U.S. Supreme Court, in its June ruling in South Dakota v. Wayfair, issued another 10th Amendment decision after many state 2018 legislatures had adjourned. But it will be of significant legislative emphasis in 2019 sessions across the nation.

The court’s ruling overturned 51 years of precedent that had restricted states from imposing sales tax obligations on out-of-state or “remote” retailers who lacked a brick-and-mortar presence in their state, ostensibly hurting local businesses, while at the same time being deprived of the sales tax revenues necessary to sustain government services for those businesses that actually pay sales taxes.

Establishing the administrative infrastructure, reporting requirements and collections systems within post-Wayfair guidelines will be a nuts-and-bolts legislative emphasis in many of the 45 state legislatures that levy a sales tax in coming sessions.