With a federal government tripped up by war, deficit and paralysis, is it time for the states to reassert their "vertical check" and regain balance? The better question is "How?"
Few political relationships stay the same over time. Partnerships grow stronger and weaker depending on the issues and personalities involved; some fall apart on a roll call vote. Institutional relationships like the United States' federal partnership are rarely quick to change. But change they do, and few would argue that the relationship between the states and Washington has remained static over the past 220 years.
The changes were laid bare more than a decade before REAL ID got the attention of state legislators across the country, when Roger Pilon, director of the Cato Institute for Constitutional Studies, testified before the House Subcommittee on Human Resources and Intergovernmental Relations in 1995.
"I would have thought, especially following last November's elections, that the proper question was not "Why doesn't Washington trust the states?" but "Why don't the people and the states trust Washington?" Pilon said.
"The answer to that question has rather less to do with the policy concerns than with a much more basic concern about political and constitutional legitimacy," he continued. "In a word, the people and the states no longer trust Washington not simply because Washington has been doing a less than satisfactory job but, more deeply, because Washington has assumed a vast array of regulatory and redistributive powers that were never its to assume—not, that is, if we take the Constitution seriously."
Few Americans take the Constitution lightly—it has served us well for centuries, after all—but few ask the tougher question: how do we rebalance the federal equation?
Taking the Constitution seriously
Pilon's congressional testimony in 1995 was at the time only the latest in a long line of concerns about the consolidation of power in Washington. Even Thomas Jefferson worried about the power he saw funneling toward the federal government: "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated," he wrote to a friend in 1821.
The states, acting in concert, have achieved both great and innovative things (Policy in a Page, p. 4). They have also provided an important balance to the growing power of the federal government at different times throughout history. Many state legislators would like the states to fill this role more actively, bringing the federal government into line with the realities on the ground. And they could—in theory.
"Part of the problem is that we're so focused on the policy issues specific to our states that we don't have the capacity to work together concertedly against federal overreach," explains Ohio State Senator John Carey (R-Wellston).
Carey's committee assignments include agriculture, education and finance, all areas that have experienced moderate to significant incursion by the federal government during his 12 years in state government. And although he is quick to laud his positive relationship with Ohio's congressional delegation, he points to a deeper issue that affects the partnership.
The politics of the people
"Part of it comes down to the people," Carey says. "We could stand to have better civic education so people understand what the role of the federal government is and what the state government is meant to deal with. I think people get the lines blurred a little bit on what legislators' roles are."
Confusion in the electorate may be natural, however. "You can say in general that the 'government closest to the people' is best, or that the one with the greatest level of expertise is better suited to deal with certain issues, but the reality is that people don't think of those abstract things," says constitutional scholar and Stanford University political scientist Jack Rakove. "People that are sufficiently mobilized to want something from
their government are going to calculate which level will be more responsive, both politically and resource-wise."
Rakove notes that some of the Framers understood the general theory of competition between the two levels of government and saw it as a strength of the federal model. With a federal government unable to take important political, military and economic decisions, are the states in a position to grab the wheel?
Finding the right lever
Some state legislators have suggested that an issue so poorly conceived, so impractical may come along, galvanizing the states into a cohesive unit and allowing them to bring their full political authority to bear on the federal government. REAL ID has been rumored to be "the one." But to achieve a sustainable balance, the states would have to find the right institutional, constitutional or legal lever to pull on collectively, and that task has proven difficult.
"It's the $4 million question," laughs Stanford professor and Hoover Institution senior fellow Barry Weingast, an ex-pert on federalism issues. "I don't think any-one has any type of real solution for it. The cheap out is to say, 'Well, let's go back to the Constitution and have the Supreme Court be more careful in terms of what it allows the federal government to assert control over through the different clauses,' but I don't think that's a real solution."
Weingast poses a subtler question, "What are the legal and policy mechanisms through which more authority would get to the states?"
Small ideas vs. big ideas
Redistricting, lawsuits, intrastate compacts, constitutional conventions, the Electoral College and no-frills lobbying have all been advanced as potential means for the states to reassert their political authority, but the states have been out of the drivers seat for so long that their license may have expired.
Lobbying the congressional delegation seems to be today's preferred but polls suggest that Congress doesn't treat the states differently than any other lobby—worse perhaps, since they're not offering campaign donations, or worse still because they're asking for money in the form of appropriations.
Action through the Electoral College or a constitutional convention would be of seismic proportion and has never been attempted. Interstate compacts, largely toothless and with definite limits, aren't serious options, nor is the possibility that the Supreme Court would overturn the 17th Amendment or issue some equally mind bending decision. "The one area of leverage we still have," said North Carolina House Speaker Joe Hackney, "is redistricting." Even so, the Supreme Court has left its mark on the redistricting process as well, paring down state authority even further.
With the big ideas discounted or dismissed, some state legislators have turned their focus toward small ideas that could pay big dividends. Short of staging an insurrection against the federal government, Ohio Representative Fred Strahorn, (D-Dayton), thinks that all parties should stop laying blame and devise better ways to work together.
"I think the dysfunction in the relation-ship is largely an issue of communication, which goes both ways," Strahorn says. And although he laments the random, seat-of-your pants nature of state/federal collaboration, he doesn't fault his congressional counterparts for a lack of attention to state concerns. "Congress is a different ball game," he says. "You have a much larger district, more constituents, different colleagues, another household, new rules and new demands on your time. I can understand how it would be difficult to maintain close contact with your state legislators, which leads me to believe that without an umbrella—a structural apparatus—to do so, maybe it's unreasonable to think that it will happen otherwise."
Strahorn's focus on the design of the communication channels between state and federal legislators illustrates his take on the relationship itself. "The effectiveness of our communication is where the partnership succeeds or fails, and the broken structure of our lines of communication probably says more about the state of the partnership than anything else."
Carey, Strahorn's colleague in the Ohio legislature, offers some advice on how to improve the collaboration between state and federal legislators. "Of the practices I've seen, I think Congressman Hobson has the best model," he says. "He calls in all of the legislators not only from his district, but also from surrounding districts. Everyone meets and he goes around the table asking what our needs and concerns are, asking us to step back and look at the long range of issues and concerns."
By establishing more effective, structured lines of communication, state legislators may be able to avoid many of the symptoms of "federal overreach" before they occur. "We hear a lot about unfunded mandates," notes Strahorn, "but a bigger problem may be the structure of the mandates themselves. They don't have the flexibility to accommodate the unique characteristics of individual states."
A journey of a million miles...
Returning to the days of pre-Progressive Era federalism may be unrealistic given the realities of globalization and the integration of the U.S. economy. But state legislators still have a few options to make their voices heard—if they're willing to work together. Reestablishing and maintaining effective communication channels with their federal counterparts is a good first step, and one which may engender the trust in the relationship that Pilon found lacking. Obviously, good communication channels aren't enough to rebalance the equation, but a solid working dynamic won't hurt. After a few small steps in the right direction, it would be easier to tackle the deeper structural problems at hand.
"If we changed the dynamic to give more agency to the states, I think we'd see a lot more experimentation in our public policies," says Weingast. "But a lot of messiness comes along with experimentation. Some states won't do well, or will choose to do nothing.
Then what happens?
"Then you get more pressure for national solutions."
Frank Holland is Policy Today's managing editor.