Bush cabinet nominees Gale Norton and John Ashcroft are running a humiliating gauntlet, forced to explain that their support for federalism in no way implies an endorsement of slavery or Jim Crow. The demagogic nature of the allegations against two honorable officials, however, should not blind conservatives to the fact that something is fundamentally wrong with their accustomed states’ rights defense of federalism.
This problem demands attention. In the coming years, federalism will be the subtext of important political battles over judicial nominations, federal land use policy, education, and quite possibly abortion. A firm defense of a federalism based on competition between states and citizen choice could help conservatives win many of those battles and, moreover, might allow them to discipline a bloated, irresponsible government (at all levels). Conservatives will squander those opportunities, though, with a “states’ rights” stance that forces them, time and again, to apologize for the sins of the Confederacy.
It is futile to argue that states’ rights are good as a general principle (even if slavery and segregation obviously were not). As Bob Dole learned in his 1996 presidential campaign, nobody mans the political ramparts or even casts a ballot for the Tenth Amendment in the abstract. This attests not to Americans’ lamentable ignorance about the Bill of Rights but to their good sense. An abstract principle is worthless (or worse) unless it produces sensible results.
States’ rights sentimentality notwithstanding, federalism is not about protecting local affections and attachments (which, as France shows, can survive even under a completely nationalized government) or about “devolving” federal administration to supposedly more competent states. Empowered state governments, on top of an effectively omnipotent federal government, are the last thing we need. Rather, the virtues that commend federalism are, first, the virtues of markets — diversity, citizen choice, and state competition; and, second, political transparency, discipline, and responsibility.
Diversity among states enables us to manage our differences — on economic and especially on social issues — in a sensible manner. The regulatory packages offered by Maryland and Virginia differ a great deal, as do those offered by New York and New Jersey. Those differences matter both to citizens and to businesses, which will sort themselves into jurisdictions to their liking.
Competition for productive citizens will discipline state governments just as market competition disciplines private producers. State governments will be more responsible and responsive to citizens’ preferences not because they are “closer to the people” (they are as interest-group ridden as the federal government, maybe more so), but because there are 50 of them. Unlike the monopolistic federal government, states will respond to the threat of losing their residents. If you doubt it, imagine how high state sales and income taxes would be if citizens couldn’t choose to shop and work elsewhere.
A competitive federalism means, first, that conservatives must stop worrying about “states’ rights” and instead start worrying about the federal government’s power. So long as that power is taken to be unlimited, Washington will remain free to wipe out diversity and competition among the states, and the Tenth Amendment — which merely reserves to the states or the people all powers not granted to the federal government — will remain empty.
Second, conservatives must stop obsessing over the states’ complaints about federal “unfunded mandates” and instead focus on the far larger problem of oppressive federal-state cooperation. State and local governments rarely cooperate with the federal government because they are compelled to do so; far more often, they sell their regulatory autonomy, in areas ranging from education to the environment to, more recently, crime control, for a handful of federal dollars. As the Supreme Court has observed on numerous occasions, federal-state cooperation obscures political accountability and responsibility, thus encouraging policy disasters. When things go awry, state and local officials blame federal regulators and a “lack of adequate funding”; federal regulators and legislators blame irresponsible state officials. In a world flattened by cooperative policies, citizens can neither identify the culprits, nor throw them out of office, nor even escape to more hospitable states.
More federal money and less federal regulation — “block grants” and “devolution,” in political parlance — provide no cure. Just as much as an unfunded mandate, a funded non-mandate (that is, a block grant) divides responsibility and obscures accountability. The incoming administration has promised to increase federal education funding by some $ 25 billion and to “block grant” existing and new programs. While that may be a necessary price to pay for the soccer mom vote, a system in which local, state, and federal officials are responsible for every-thing and nothing will easily absorb a few billion dollars to no net educational effect. Federal reform should disentangle the system — for instance, by sending federal dollars to parents rather than bureaucrats.
Third, conservatives must become attuned to federalism’s horizontal, state-to-state dimension. Left to their own devices, the states will attempt to beggar their neighbors — for instance, by seeking to impose tax collection obligations on e-commerce sellers in other states, or by robbing out-of-state corporations in billion-dollar product liability lawsuits brought on behalf of (some) in-state plaintiffs. Given half a chance, the states will attempt to form policy cartels to suppress interstate competition, either with the help of Congress or on their own; witness the multi-state tobacco agreement, which amounts to a $ 250 billion tax hike that no legislator, state or federal, ever voted on. Regulatory aggression and policy cartels, however, aren’t federalism but its antithesis. Conservatives should not be abashed about urging Congress to curb such practices; that is what congressional authority is for.
Fourth, conservatives have to stop looking to state and local officials and their Washington lobbying organizations as federalism’s principal defenders. States consistently oppose interstate competition for the same reasons that private corporations seek monopolistic access to customers. “States’ rights” rhetoric typically goes hand in hand with calls for federal “cooperation” that crowds out state competition, thus allowing state officials to do a lot of stuff, on behalf of special interests, that would otherwise drive productive citizens and businesses into other states.
Gale Norton’s record as Colorado’s attorney general, and John Ashcroft’s record as a state attorney general, governor, and senator indicate that both nominees understand federalism’s logic and attractions; their federalism problem, grossly inflated by their enemies’ distortions, lies in using a familiar but unfortunate rhetoric. Among current state leaders, one can find one attorney general (Alabama’s Bill Pryor), two governors (Oklahoma’s Frank Keating and Virginia’s James Gilmore), and perhaps a few others who favor state competition. As for the vast majority, their idea of federalism is “send us more money, and leave us alone.” That, in a nutshell, is the federalism agenda of the National Governors’ Association.
Some states will be on the right side of some federalism issues, and there is considerable mileage in exploiting divisions among the competitive states and their no-good, cartelizing, “fund-me” cousins. But federalism is too important to be left to the states. Conservatives must identify, issue by issue, the political constituencies that have a stake in a more competitive and diverse politics — school choice advocates and home schoolers on education; gun owners and civil libertarians on crime control; segments of the business community on Internet privacy and e-commerce; property rights advocates and, again, sectors of the business community on environmental and land use issues.
For historical and substantive reasons, it will prove difficult to extricate federalism altogether from the states’ rights legacy. But the task is not hopeless. Most citizens believe, correctly, that Washington does not care about their vote; most yawn, justifiably, when Beltway campaign-finance reformers promise to put citizens ahead of PACs. Increasingly mobile and educated citizens will care, however, about a government that responds when they vote with their feet — and about a federalism agenda that protects and enhances their right so to vote. Citizens have figured out that markets work, while Washington doesn’t. They will go with what works — if they are offered a federalism of competition and choice, not a states’ rights echo.
Michael S. Greve is the John G. Searle Scholar at the American Enterprise Institute and director of AEI’s Federalism Project. He is the author of Real Federalism: Why It Matters, How It Could Happen (AEI, 1999).
