Welcome to the Friday, Aug. 16, Brew.
By: Mercedes Yanora
Here’s what’s in store for you as you start your day:
- The administrative state and two defeated ballot measures in Wisconsin
- Thirteen state legislative incumbents face primaries in Florida – fewest since 2010
- Did you know that 24 states and Washington, D.C., have legalized the possession and personal use of marijuana for recreational purposes?
The administrative state and two defeated ballot measures in Wisconsin
In yesterday’s Brew, we told you about Wisconsin’s election results, including two ballot measures related to the administrative state that voters defeated at the polls. The administrative state is a term used to describe the phenomenon of executive branch administrative agencies exercising the power to create, adjudicate, and enforce their own rules.
Using Ballotpedia’s extensive library of materials about the administrative state, let’s dig deeper into understanding those ballot measures.
Wisconsin Question 1, Prohibit Legislature from Delegating Appropriations Power Amendment
Voters defeated a constitutional amendment that would have prohibited the legislature from delegating its power to appropriate money 57.45%-42.55%.
Republican lawmakers supported the amendment, claiming it would add “more oversight and serve as a check on the governor’s powers.” Democratic lawmakers opposed it, claiming the measure “would slow down the distribution of money when it needs to be spent quickly.”
Wisconsin Question 2, Require Legislative Approval for State Expenditure of Federal Funds Amendment
Voters defeated a constitutional amendment that would have required legislative approval via a joint resolution before the governor could expend federal money appropriated to the state 57.53%-42.47%.
Like Question 1, Republican lawmakers supported the amendment and Democrats opposed it, largely on the same grounds as they did on Question 1.
How the ballot measures fit in with the administrative state
The Wisconsin measures would have changed the state’s approach to the nondelegation doctrine, which is a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their powers to executive agencies or private entities.
Republican lawmakers believed that federal funds, particularly during the COVID-19 pandemic, should have been allocated with legislative consideration, instead of through Gov. Tony Evers (D) alone. This difference in political philosophy was the impetus for the Republican-controlled legislature to place the measures on the ballot (ballot measures the legislature refers to the ballot do not require gubernatorial approval).
Opponents of the measures argued that there are times, especially during a state of emergency, when the legislature fails to meet. Under nondelegation, the legislature’s failure to meet would inhibit the timely distribution of federal funds.
Where these measures fall on a national scale
Ballotpedia tracked 583 bills in 44 states related to administrative agency authority and action in 2024.
- Democratic trifectas considered 283 bills.
- Republican trifectas considered 169 bills.
- Divided governments considered 131 bills.
Thirty-eight states adopted or enacted 129 of those bills or resolutions (including three through veto overrides). These included the legislation putting Question 1 and Question 2 on the Wisconsin ballot.
- Eighty-eight reduced agency power.
- Eight increased agency power.
- Thirty-three did not clearly increase or decrease agency power.
Arguments for and against the nondelegation doctrine
Ballotpedia has curated a collection of arguments for and against nondelegation.
There are four arguments against delegation and in favor of the traditional nondelegation doctrine:
- It violates the separation of powers.
- It undermines public accountability (or, it is anti-democratic).
- It is forbidden by or inconsistent with the text of the U.S. Constitution or, if the delegation occurs. in a state government, by that state’s constitution.
- Delegation is wrong because of social compact theory.
There are eight arguments against the traditional nondelegation doctrine and in favor of delegation:
- The Constitution does not explicitly forbid delegating legislative power.
- Rulemaking is not the same as lawmaking.
- The U.S. Supreme Court has upheld virtually every statute challenged on nondelegation grounds.
- Agency law rules permit delegation.
- The increasing complexity of society requires Congress to delegate to do its job.
- Allowing executive agencies to exercise the discretion legislative delegation confers lets them adjust to unintended consequences.
- Advocates of the nondelegation doctrine actually oppose expansive federal regulations.
- Statutes giving open-ended authority to executive or judicial actors are not delegations.
Potential reform approaches
In Wisconsin, we saw how legislators used ballot measures as a way to address challenges related to the enforcement of the nondelegation doctrine. There are other legislative approaches, as well as executive and judicial branch approaches. These proposed reforms, while written for the federal level, are often applied to the state level and can be found here.
Ballotpedia’s 2024 administrative state session-end report is live today. Click here to read more!
Thirteen state legislative incumbents face primaries in Florida – fewest since 2010
Continuing our coverage of statewide primaries, today we dive into elections in Florida. The state is holding congressional, state legislative, school board, and local primaries on Aug. 20.
Why it matters at the national level
In the U.S. Senate, Democrats currently have a majority. There are 47 Democrats, 49 Republicans, and four independents. Three independents caucus with the Democratic Party. Another independent, Sen. Kyrsten Sinema, counts toward the Democratic majority for committee purposes. Thirty-four of 100 seats are up for election, including one special election. Of the seats up for election in 2024, Democrats hold 19, Republicans hold 11, and independents hold four.
In the U.S. House, Republicans currently have a 220-212 majority with three vacancies. Florida’s U.S. House delegation includes eight Democrats and 20 Republicans. We’re following two Florida U.S. House primaries as battleground primaries:
- Florida’s 1st Congressional District Republican primary
- Florida’s 16th Congressional District Republican primary
U.S. Senate
Incumbent Rick Scott (R), John Columbus (R), and Keith Gross (R) are running in the Republican primary. Scott was first elected in 2018.
Stanley Campbell (D), Rod Joseph (D), Debbie Mucarsel-Powell (D), and Brian Rush (D) are running in the Democratic primary.
U.S. House
One hundred three candidates are running for Florida’s 28 U.S. House districts, including 42 Democrats and 61 Republicans. The 8th Congressional District is the only open district. Incumbent Rep. Bill Posey (R) is retiring. This is the fewest open seats in Florida since 2014 when no seats were open.
Looking at the battlegrounds, incumbent Matt Gaetz (R) and Aaron Dimmock (R) are running in the Republican primary for Florida’s 1st Congressional District. Gaetz, who was first elected to Congress in 2016, received national media attention in October 2023 when he filed a motion to remove Kevin McCarthy (R) as House speaker. It became the first successful motion to remove a House speaker in U.S. history. Gaetz was one of eight House Republicans who voted to remove McCarthy.
In February 2024, Politico called Gaetz the biggest target in McCarthy allies’ campaign to recruit primary challengers to run against the Republicans who voted to remove McCarthy from the speakership. McCarthy endorsed Dimmock and former President Donald Trump (R) endorsed Gaetz.
In Florida’s 16th Congressional District, incumbent Vern Buchanan (R) and Eddie Speir (R) are running in the Republican primary. The Tampa Bay Times called Speir’s run “a challenge from the right.” Speir said, “[W]e have witnessed a shocking erosion of our individual rights and liberties. Where has Vern Buchanan been?” and called Buchanan “a statesman for the status quo.” Buchanan said, “We’ve built up a good reputation, a good name, and we’ve done a good job for a long time. I think you’ll see that at the ballot box.”
State legislature
All 120 House seats and 20 of 40 Senate seats are up for election. Heading into the primary, Republicans controlled the Senate 28-12 and the House 84-36.
Across both chambers, 13 incumbents face primary challenges, the fewest since tracking began in 2010 and representing 12% of all incumbents running for re-election. An average of 22 incumbents faced contested primaries in each election cycle from 2010 to 2022.
Of the 13 incumbents in contested primaries, eight are Democrats and five are Republicans.
Local battlegrounds
Seven candidates are running for two seats on the commission. The election will determine whether majority control of the city commission will lie with a group media outlets have described as traditional Democrats or a group described as progressives. Click here to learn more.
Hillsborough County state attorney Democratic primary
Elizabeth Martinez Strauss (D) and Andrew Warren (D) are running in the primary. The primary is taking place after Gov. Ron DeSantis (R) removed Warren from office in August 2022. Click here to learn more.
Did you know that 24 states and Washington, D.C., have legalized the possession and personal use of marijuana for recreational purposes?
In 13 of those states, as well as in D.C., voters used the ballot initiative process to legalize marijuana. In two states, the legislature referred a measure to the ballot, which voters later approved. In nine states, lawmakers legalized marijuana through the legislative process.
So far this year, voters in Florida, North Dakota, and South Dakota will decide marijuana-related measures in November.
Click here to read about marijuana laws and ballot measures in the United States.