2018 is Also the Year of the States
It is a foregone conclusion among many pundits and media outlets that 2018 is the “year of the woman.” There is a significant uptick in the number of female candidates and they are logging impressive wins. The profile of women lawmakers is increasing. They are making their voices heard realizing the power that for too long had remained dormant. Similarly, the states are also on the ascent. Universal dissatisfaction with dysfunction in nation’s capital coupled with relative functionality in state (and local) governments have fostered state leadership in traditional and less traditional policy areas. Only 20 percent of Americans trust the federal government to “do the right thing” and Congress’ approval ratings long ago sank to record lows and have yet to rebound. Disillusion with federal institutions contrasts dramatically with the trust that most American voters still have in state and local governments.
Fortunately, the Founding Fathers established federalism, making the states co-equal partners with the federal government creating what Justice Louis Brandeis would call almost 150 years later “laboratories of democracy.” These 50 “laboratories” afforded the United States the opportunity to test policies in the states before adopting them nationwide. Good policies could be replicated and failed ones abandoned without risk to the rest of the nation. However, the Founding Fathers also recognized that the states must guard their power to prevent its inevitable migration to the federal government. James Madison warned that “There are more instances of the abridgment of freedom of the people by the gradual and silent encroachment of those in power than by violent and sudden usurpations.” Madison’s prediction was borne out as states ceded their power slowly but steadily, accepting laws, regulations and executive orders without challenging their constitutionality. Often state cooperation was encouraged with federal dollars. State sovereignty appeared to be faltering.
Hints of federalism’s impending resurgence can be traced to the 1980s. President Reagan, an active proponent of a balanced budget amendment (BBA) to the U.S. Constitution via an Article V amendments convention, issued Executive Order 12612 to restore the division of governmental responsibilities between national and state governments. Despite EO 12612’s rescission in the next decade, state sovereignty continued its quiet but inexorable advance and now seems to be enjoying an explosive bipartisan renaissance as progressives have discovered that federalism is a powerful tool for the states and does not have a party affiliation.
When Congress proved unwilling to police itself, a number of states submitted Article V applications to request amendments conventions to consider constitutional amendments ranging from the imposition of Congressional term limits to overturning the Supreme Court’s Citizens United v. FEC decision. A BBA Article V initiative is nearing the 34-state threshold to compel Congress to call an amendments convention with 28 state applications submitted. ALEC has adopted a model policy to support congressional term limits which can be accessed here and model policy to support a balanced budget amendment which can be accessed here.
To reduce the regulatory overreach of federal agencies, states are pressing for the Regulations from the Executive in Need of Scrutiny (REINS) Act. ALEC model policy supporting this initiative can be accessed here. America’s withdrawal from the Paris agreement on climate change prompted California Governor Jerry Brown to attend the UN Climate Change Conference in Bonn, Germany in November to reaffirm the commitment of California and several states, localities and other entities to the agreement. Governors representing states across the nation routinely reach out to other countries to promote trade as well as to the federal government to highlight the importance of international trade to their states’ economies. Earlier this month western governors submitted a letter to Secretary of Commerce Wilbur Ross encouraging him to “continue providing the stability and certainty upon which successful trade relationships and western economies depend” reminding Ross that “Robust international trade is essential to the economies of western states.”
One of the most powerful examples of state pushback in the last year was the bipartisan unity in opposition to the Presidential Advisory Commission on Election Integrity which compelled states to turn over voter registration data. In some cases, compliance with the federal government’s demand violated state law. Connecticut’s Secretary of State offered one of the first refusals to turn over the data, however the most colorful came from the Mississippi Secretary of State who invited the Commission to “go jump in the Gulf of Mexico,” adding that Mississippi is a “great state to launch from.” Michele Reagan, Arizona’s Secretary of State offered one of the most eloquent responses writing, “I share the concerns of many Arizona citizens that … the Commission requested information that is confidential under Arizona law … [and] … intends to make Arizona voters’ information publicly available without any explanation how this dissemination would serve the Commission’s efforts.” She presciently observed, “Centralizing sensitive voter registration information from every U.S. state is a potential target for nefarious actors who may be intent on further undermining our electoral process.” The text of the letter can be accessed here. At one point, 44 states informed the Commission that they could not comply fully or at all with its request, and in January 2018, the Commission was abruptly dissolved.
Federalism in America is robust and operating as intended. In the wake of unprecedented federal dysfunction, America’s 50 laboratories of democracy are stepping up to fill the leadership vacuum and are displaying political courage that is largely absent inside the beltway.