The political safeguards of horizontal federalism.

AuthorGerken, Heather K.
PositionIII. The Affirmative Case for Spillovers A. The Source of the Problem: Division or Inertia? 4. The Costs of the "Big Sort": Undermining State Politics through Conclusion, with footnotes, p. 88-120
  1. The Costs of the "Big Sort": Undermining State Politics

    There are other democratic costs to a system checkered with red and blue enclaves. Choice is a celebrated feature in federalism discourse, and rightly so. Indeed, one of the most common arguments against spillovers invokes the values of democratic self-rule, the notion that each polity ought to set policy for itself and itself alone. We acknowledge these benefits in the next Part, but we also insist that there are costs to what Bill Bishop evocatively terms the "Big Sort." (132)

    Just as the Big Sort excuses national officials from doing the tough work of democratic compromise, it also excuses state officials from the same work. Because no state is homogenous, state officials are always aware that not everyone is happy with the enclave they've built for their citizens, be it red or blue. But vetogates and self-interested politicians can be as problematic in state legislatures as they are in Congress. Absent resistance by localities within the state, (133) arguments for change are presented by people who usually lack the votes to do anything about it. State politicians have every incentive to count the votes and brush the gadflies aside. Radio silence is the prerogative of power. On too many issues, state officials lack much by way of an incentive to cross party lines or compromise with those who seek change, something that can result in the same type of stasis and lockup that exists at the federal level.

    We worry not just that the enclave solution is too easy for political elites but that it's too easy for everyday citizens. It's too comfortable to sort oneself into homogenous communities and ignore those with different views. The Big Sort prevents citizens from living under someone else's law or trying out someone else's policies. Opportunities for democratic engagement are reduced. More importantly, as we discuss below, incentives for democratic engagement are reduced.

    If you think that living under someone else's law isn't a democratic good, think harder. Enclaves encase us in a protective policymaking bubble and shield us from laws with which we disagree. As we explain below, when citizens of one state must accommodate the preferences of another's, they are enlisted in the practice of pluralism. They are reminded that they are not just part of a state but part of a union. (134) A vibrant democracy depends not just on choice but on accommodation, compromise, and engagement. These are not the habits that enclaves cultivate. With the easy comforts of the Big Sort comes the risk that we lose sight of the other side and, concomitantly, our ability to engage with it. Spillovers force engagement and thereby spur the processes on which our democracy depends.

    We recognize, of course, that ours is a contested vision of what ails our democracy. But so is the other side's. We aren't attempting to establish that our assessment is the correct one; we doubt that could be done in a single paper, let alone a subpart. All we wish to establish here is that there are two plausible descriptions of the current state of affairs. After all, those who worry about interstate friction don't have a knock-down argument on the facts, either. To the contrary, the evidence they offer on the dangers of interstate friction doesn't go much past gloomy reminders about the Articles of Confederation. (135)

    Moreover, while we certainly don't have a magic measuring stick to establish that ours is the correct assessment, neither do those who emphasize the risks associated with interstate friction. It's possible that both sides are correct. It's possible that we swing like a pendulum between the two extremes. But as long as both remain realistic possibilities, we ought to be attentive to both accounts and tailor our regulatory strategy to whichever state of affairs currently prevails.

    Put differently, we believe that interstate friction is much like state-federal friction. Friction at the vertical level can lead to all sorts of problems, including inefficiency, conflict, and division. Federalism scholars don't deny these problems. They simply insist that we also pay attention to the productive possibilities associated with state--federal friction, that we recognize that too little conflict can be as problematic as too much. The key is achieving the right balance. And it's worth noting that scholars of vertical federalism haven't come up with a magic measuring stick for striking that balance, either. (136) Nonetheless, vertical federalism has muddled through, and we think that horizontal federalism can do the same.

    1. The Solution to Inertia and Enclaves: Spillovers

    If you accept our admittedly contestable account of the problem that we should worry as much about inertia as brouhahas, as much about the comfort of enclaves as the discomfort of conflict--then you can see why spillovers matter. Spillovers mitigate the problems associated with inertia and enclaves by generating other types of problems--controversies and conflicts and costs that are far more likely to galvanize democratic engagement than yet another editorial, yet another protest, yet another blog post. Spillovers put issues on the national agenda, convert inchoate majorities into cohesive ones, and overcome congressional gridlock. They also enlist state politicians and their constituents in the project of pluralism, forcing state officials to engage and state citizens to take their democratic lumps.

    Put differently, the high-salience spillovers described in our matrix above bring with them a set of underappreciated benefits that must be weighed against their costs. While we have no quarrel with the impulse to look to courts to cabin low-salience, economically costly spillovers (Box 2), high-salience spillovers (be they economically costly, as with Box 1, or not, as with Box 3) require a different accounting than they've received in the literature.

  2. Spillovers and the Problem of Inertia

    Spillovers mitigate the problems associated with policymaking inertia because they provide the friction necessary to ignite the national policymaking process. (137)

    1. Agenda Setting

      Spillovers can get issues on the national policymaking agenda, which is no mean feat these days. The enclave strategy makes life easy for national elites because no one is demanding that they do anything. But when enclaves break down and one side forces its unwelcome policies on the other, the put-upon party almost inevitably looks for a federal referee. Auto executives who hate California's strict environmental policies plead with the Environmental Protection Agency ("EPA") to preempt them. (138) Opponents of marriage equality seek assurances from Congress that they need not recognize same-sex marriages performed in other states. (139) States ravaged by gun violence ask courts to force other states to tighten their regulations. (140) If you want to get something on the national agenda, in short, you might take a lesson from a first-grade classroom. One way to get the teacher's attention is to raise your hand. The other is to pull the pigtails of the girl sitting next to you. (141)

      Note the dynamic relationship between state and national policymaking that spillovers unleash. Spillovers don't just push issues onto the national agenda; they push issues onto state agendas as well. Sometimes, as we discuss below, that's because state officials are forced to work the issues out themselves. Other times, however, the push for state regulation comes because spillovers provide opportunities for backdoor policymaking. (142) The interest group that blocks legislation in Congress often can't block that legislation in every state. Climate-change advocates stymied in Congress, for example, have persuaded California to pass regulations that affect cars sold throughout the country. Spillovers are a key reason these alternative state avenues are so attractive. If a local law can have a regional or national impact, then states offer potential fora for backdoor national policymaking. It may not be a normatively attractive strategy, but it's a politically irresistible one.

    2. Overcoming Gridlock

      Backdoor policymaking eventually spurs front-porch debates, pushing issues onto the policymaking agenda. As a result, spillovers serve a second, related democratic purpose: overcoming national gridlock. This argument has been repeatedly made in the academic literature. (143) In environmental-law scholarship, it even has a name--"defensive preemption," used to describe how state spillovers reverse industry opposition to broadly popular legislation and thus break up congressional gridlock. (144)

      This policymaking dynamic works in an intuitive way. Typically, those who seek change bear the full price of inertia, while those who oppose change reap all of inertia's benefits. When interest groups use states for backdoor policymaking, they upset the status quo. Spillovers thus shift the costs of inertia, something that often prompts proponents and opponents of a policy to demand a national solution.

      Spillovers can reduce legislative inertia in another way. Absent spillovers, minorities using vetogates to block legislation bear no cost for their intransigence. They have two options--prevent a policy from being enacted (total victory) or allow that policy to be enacted (complete defeat). But spillovers change that calculus: blocking a policy from being enacted at the national level is only a partial victory because the state spillovers remain. The gap between the status quo and the new policy becomes narrower. As a result, opponents may moderate or drop their opposition.

    3. Eliciting National Preferences

      Spillovers are also useful because they can help elicit majoritarian preferences. Inertia runs deep in American politics. People aren't inclined to engage with an issue unless they must. Spillovers force engagement in a way that conventional forms of advocacy (editorials, political ads...

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