It happens every year. An idea pops up on the legislative agenda in a so-called “small state.” The appellation typically describes a state in which the affected company or industry has a minor presence and limited growth potential as compared to other states. States typically in this category include New Hampshire, Vermont, North Dakota, Hawaii and Alaska–among others.
In this case, analysis of the proposal indicates that it is, indeed, a bad idea and one that would be costly if adopted in California, New York, Florida or other “big” states.
But, since it is in a “small” state, a decision is made to not get involved–no lobbying or advocacy of any kind. Not even a letter or phone call. After all, it is said, we have limited resources and cannot engage everywhere.
True, no one can engage everywhere, but this analysis ignores a very basic rule of legislative trends–someone has to go first. Legislators ALWAYS ask what other state has done whatever is being proposed.
That fact was influential earlier this year when a Maryland bill threatened to regulate the Internet–from Annapolis. During each legislative hearing that key question – Has any state done this? – was posed by legislators and answered by the business community opponents. “No, no state has done this. Maryland would be the first.” The bill, whose prime advocate was Maryland’s Attorney General, was amended to call only for an interim study and passed.
The very existence of a “first” makes all subsequent state actions less risky and less difficult. Getting a “first” on the books, no matter what or where it occurs, can be the legislative equivalent of a fissure in a dam.
Wisely, advocates often start their campaigns in “small” states precisely because they recognize that the resources of potential opponents will be less, thus improving their likelihood of success. With a signed law in hand, they can take their new idea anywhere and not have to ask legislators to go first.
Another advantage for advocates in the small states? Legislators are usually part time and have very little staff support to provide perspective on the hundreds of issues on which they must deal. So advocates can organize some grassroots activity, present their case and get a bill passed. And as the examples show, the ideas then spread.
Now ask yourself, can my company or trade association really afford to ignore that “small” state?
Regardless of whether the new concept is a good one or a bad one, assuming that its emergence in a “small” state deserves inattention is a risky proposition.
Here are a couple of examples of issues that began with enactments in “small” states:
Bans on the collection and sale of physicians’ prescription data: New Hampshire, 2006
Subsequently adopted in: Illinois, Minnesota, North Carolina, Pennsylvania, Washington
Medical privacy laws: Hawaii, 2000
Subsequently passed in Arizona, California, Colorado, Connecticut, Florida, Georgia, Maryland, Massachusetts, Michigan, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas.