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Why federalism is hard

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The word federalism used to make liberals raise their eyebrows in suspicion and skepticism. States’ poorly funded welfare programs, paralyzing debt, and resistance to guidance from the federal government were enough reasons to make federalism, as principle of government, something from which progressives would keep their distance.

But after the 2016 election, that changed. After eight years of expectation that the White House would set strong national policy, followed by an epic setback, liberals rushed to quote Justice Louis D. Brandeis pointing out that states are “laboratories” of democracy, where a “single courageous state” can “try novel social and economic experiments.” Federalism has quickly become a tool to challenge and resist White House executive orders and the latest congressional bills.

Indeed, federalism has no ideological alliance. Heather Gerken, dean and professor at Yale Law School and one of the country’s leading experts on constitutional law and election law, told us that “federalism has long been the darling of conservatives. But that’s a mistake because federalism is for everybody.” But while the idea of federalism seems promising, the practice of it is a lot more complicated.

Over the past year, we’ve gathered data for the Laboratories of Democracy Database, a platform for tracking how states are testing new ideas for financing campaigns, structuring voting systems, setting district boundaries, and expanding participation. From this research, states like Washington and Arizona offer an especially optimistic and promising picture of what the future of progressive federalism could look like. Via strong campaign finance laws, robust public financing for campaigns, and independent redistricting commissions, these states are experimenting with new ideas, and the appetite for expanding those ideas has ballooned to a national scale.

But the enormous size and complexity of the United States means that when it comes to reform at the state and local levels, there’s little standardization and no systematic analysis of the effects of reform. On top of that, the drama of politics means that states are always under threat of losing federal funding, are stuck having to navigate partisanship and state/city conflicts, and don’t necessarily have the resources to create easily accessible repositories of information.

There is no standardization

One of the biggest challenges we faced while gathering data from all 50 states was figuring out how to depict that information in an accessible and clear way. With 50 states come just as many different ways to regulate the financing of elections. Even the vocabulary state legislatures and election boards use fluctuates. Election cycle, election period, election segment — they all mean different things. Imagine being a first-time candidate, without a lot of support, trying to abide by the rules. Or imagine being a voter trying to figure out how and when she can contribute to a campaign.

There’s no systematic analysis of the effects of reform

While there are exciting and promising innovations at the state and local levels — like Seattle’s voucher program, through which eligible Seattle residents receive $100 in democracy vouchers to support candidates in the city’s elections — states often implement reforms and then forget about them. Take Hawaii and Massachusetts’s partial public funding programs for candidates, which, according to Demos, is only used by one in 10 candidates running for office. Implementing reform is one thing. Getting it to stick is another.

Impact is another question. As in science, experiments don’t always go well, and not all federalist reforms will translate into positive findings. New policies have transition periods that can add to voter confusion as they try to register to vote, participate in elections, or follow the news. Other policies can impede the democratic process, like voter ID and early voting laws that discourage voters and shorten participation windows.

Some research has shown that public funding makes it harder, not easier, to elect moderate candidates. And even when it does work, the process is complicated. New York City has only been able to apply new campaign finance reforms because it’s required to publish an analysis and hold hearings after every election to continue making improvements. But that’s not the case across the board.

There aren’t easily accessible or transparent repositories of information

State websites were unclear and often contradictory, but finding answers in legislation or guides was just as hard. Some files were hundreds of pages long; others were scanned and unsearchable. In rare cases, the full legislative text isn’t easily available.

A career technologist who spoke with us off the record said that states should provide data in a format that’s easy for people and advocates to understand. That means data that’s online and machine-readable, relevant, and user-centered. To do this on a national scale, though, requires cooperation between the federal government and states to create accessible files and resources. The Governance Lab, an organization that works to promote the importance of open data as a way to improve governance, outlines six principles that aim to make data more open and easier to use, with the goal of promoting transparency:

  • Open by default
  • Timely and comprehensive
  • Accessible and usable
  • Comparable and interoperable
  • For improved governance and citizen engagement
  • For inclusive development and innovation

Throughout our research and data gathering for voting and elections systems, as well as for campaign finance regulation, most states failed to pass the criteria above. Ultimately, this expert told us that a main reason for the slow progress is the lack of stakeholdership: It’s a good idea, but it’s not anyone’s top priority.

The threat of losing federal funding can make states reform-shy

Despite the autonomy states enjoy due to decentralized government, they’re not always immune to retaliation if they choose to go against the federal government. States’ refusal to comply with and direct challenges at federal law can have serious and lasting consequences for states. Sanctuary cities, for example, have been threatened with losing crucial federal funding if they don’t comply with immigration guidelines.

Another unique aspect of American federalism is the difference between state and federal budgeting and funding. While the federal government can operate in a deficit, 49 state governments can’t (Vermont is the only clear exception). Additionally, unfunded mandates from the national level put financial pressure on states, and new tax reforms could have major consequences for high-tax states like California, Connecticut, New Jersey, and New York.

Already, as Harold Meyerson at the American Prospect explains, states are the “primary funders of education, transportation, local infrastructure, and public safety.” As a result, states quickly feel economic strain, meaning that any tough decisions could target new reforms like public financing first.

Conflicts between levels of government can increase gridlock

The 2016 election showcased an interesting juxtaposition: a Republican majority at the federal and state level, accompanied by an increase in support for local, progressive ballot measures like increased gun regulations, legalized marijuana, and higher minimum wages.

However, in the past, as Boston University professors Katherine Levine Einstein and David M. Glick have pointed out, this contrast has translated into political battles between governments. In Texas, for example, local city ordinances in 2015 banning fracking and plastic bags were overturned by the Republican state government concerned about a “patchwork of local regulations” governing oil and gas production, an interesting switch in the usual big government argument. North Carolina and Tucson saw similar conflicts over LGBT protections and gun regulations.

While this back-and-forth is important for the checks-and-balances aspect of federalism, it can also increase polarization and gridlock, as states find themselves engaging in never-ending fights both inside their state and against the federal government.

Is federalism the future?

Federalism is not all bad, of course. In fact, it may help decrease partisan warfare. For Gerken, “federalism is a way to soften the problem of polarization by creating incentives for compromise between a federal government controlled by one party and states controlled by another,” something that’s particularly important today, when compromise at the national level seems increasingly unlikely.

When states are given room to implement their own ideas and policies, it also makes national politics less high stakes and works against the winner-takes-all model that so often polarizes our current environment. To Gerken, it’s good for democratic compromise to have “powerful states” because “in a one-sided Washington, a state can do something by themselves.” President Trump may not need a Democratic vote to get through legislation, but he’ll eventually need to be able to work with California, Massachusetts, or New York.

That kind of state leverage allows for what Gerken and a colleague called uncooperative federalism, where “states use [their] regulatory power … to resist federal policy.” It’s an especially effective strategy in areas where the federal government lacks the ability to carry out policies itself, Gerken explained. With Obamacare, the federal government didn’t have the apparatus to run a fully federally funded system and needed the states to step in; not all cooperated. The Trump administration hasn’t always been able to enforce its immigration policy for the same reason: not enough actors to carry out the policy, and thus vulnerable to states that don’t cooperate.

For liberals, progressive federalism, as an idea, is a promising alternative to legislative setbacks at the national level. In the words of Pittsburgh Mayor Bill Peduto, cities can act as “urban labs” where programs that are “suffocated” in Congress “can be sent to grow.” While the Progressive Era of the early 20th century used the power of the federal government to enact social and economic reforms to lessen the negative effects of industrialization, today, progressive federalism takes advantage of decentralization and aims to use the power of state and local governments as tools against the Trump administration.

But using federalism as a model for legislative reform will require a much more serious, in-depth, and systematic endeavor to understand how differently states operate. Implementing real standardization would be impossible, but for scale and transferability purposes, states would need to present information in organized, uniform ways, so that those who aren’t as familiar with the governing and legislative process have a real shot at pushing for progressive reforms.

And even with the right infrastructure in place, pushing for more federalism can easily backfire. Federalism is an attractive idea when your party isn’t in power and you’re scrambling to figure out how not to see roll backs of legislation. As Harold Meyerson at the American Prospect pointed out, “the love of federalism is a sometime thing; its critics and champions switch places depending on who is in power at which level of government.”

But federalism itself is a long-term, nonpartisan endeavor. By pushing for more 10th Amendment rights in court, Gerken argues that opportunistic federalists looking for temporary political advantage may find they set a dangerous precedent that limits federal power in the long run.