A Modest Proposal
The New York Times yesterday reported:
“The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress. Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.”
Tracing the recent history of the proposal, the report goes on to include one law professor’s prediction that it is doomed to failure because it would increase the power of the smaller, less populated states and, even if it were to pass, the likelihood of two-thirds of the state legislatures agreeing to repeal federal legislation or regulation is small.
Perhaps. But if the incipient wave of neo-federalism does prove to have, as they say in Hollywood, legs, there’s a far simpler method of reining in the ever widening imbalance of power between the federal government and the several states: repeal the 17th Amendment.
A whole lot has been written on this subject over at Outside The Beltway.
On philosophical matters of governance, I don’t agree with Steven Taylor all that often, but on this subject I think he’s entirely correctly. Repealing the 17th Amendment wouldn’t change much. For it to do so, you would need governors and/or legislators to have recall power, which they never had. Without it, a senator’s re-election it likely to depend on, more than anything, his or her party retaining the state legislature. The primary loyalty will not be to the governor that he may or may not support or the legislature that’s going to change every couple of years, but to the party whose support is absolutely essential to re-election.
You’d need something like the German senate-equivalent, where the senators are immediately answerable to the state’s chief executive. Do that and he will represent the governor’s interest, and by extension the state government’s.
Also, I am inclined to agree with the original that 2/3 is an extraordinary threshold to meet. The people freaking out about this proposal are completely missing that. If 2/3 of the states disagree on a law, it’s pretty unlikely that the law passes in the first place. Keeping in mind that of the 10 smallest states, 5 vote in one direction and 5 vote in the other, the “states representing 33% of the population can undo a law!” argument is faulty.Report
Or perhaps to the interests who tell the state legislators what to do?
The reason for the 17th Amendment, more than anything, was the corruption that went into selecting Senators. We’re talking bundles of cash through transom windows. It might be a bit more subtle today, but please don’t pretend that it wouldn’t happen.Report
Yes, it would certainly be a bad thing to introduce corruption into politics.Report
DC:
So you are saying that it isn’t easier nowadays for a large corporation to buy one senator versus many state legislators?Report
No I think what we are saying is that they would save money as they are already buying the state senators and therefore would no longer have to buy the US senators.Report
“You’d need something like the German senate-equivalent, where the senators are immediately answerable to the state’s chief executive. Do that and he will represent the governor’s interest, and by extension the state government’s”
Note that the governor, the state and the people of the state are actually not the same thing. If a Senator served at the whim of the governor, then that Senator is part of the Governor’s office, for purposes of command and control.Report
Determining the magnitude of difference reverting to a system of senatorial appointment by state legislatures would bring about is, of course, counterfactual speculation. I’m unconvinced the past is a reliable guide in this regard, primarily because of the effect of the metastatic growth in federal power since the 17th Amendment was passed.
This much, however, seems clear to me. As matters stand, U.S. senators are all but immune to influence from, let alone control by the governments of the states they putatively represent. Merely by being incumbents they enjoy a huge advantage over opponents; they personally control their own campaign finances, finances which by virtue of their national influence, can be funded entirely by out-of-state contributions; they are free to act against or at least not in cooperation with their state government with virtual impunity. (Former Virginia Senator Foghorn Leghorn, er, I mean John Warner strikes me as a perfect example of this sort of independent hubris.)
Doubtlessly, some can and will argue that these are all good things, that the Senate should be “above” the parochial interests of the states their members represent. I, however, do not. Anything that tethers politicians elected to federal office back to their actual constituency is, in my opinion, a good thing. No, I can’t say with certainty that a return to appointment by state legislatures would dramatically improve the current situation, but I certainly can reasonably expect that members of Congress whose continuation in office required the good graces of elected state officials would be far less likely to ignore the concerns of those elected state officials than they can today.Report
I tend to think that repeal of the 17th would work only in conjunction with repeal of the reapportionment act of 1929.
That said, golly, would that work!Report
The growth in federal power can be attributed to any number of things. Nationally and internationally, it’s a much smaller world than it used to be.
I understand your concerns in paragraphs #2 and #3, but I don’t think that repealing the 17th amendment actually changes that equation. You would need to go a few steps further, likely giving governors recall power, making senate terms shorter (and thus the senators more responsive to the legislators), or an augmented repeal amendment.
Anyhow, google “17th Amendment site:outsidethebeltway.com” for some additional commentary.Report
Oh, I certainly don’t contend that repeal of the `7th Amendment would immediately create some sort of federalist paradise. But the journey of a thousand miles, begins with, well, you know.Report
Nullification: It’s not just history.Report
What exactly is the expected end-game of initiatives like this? People seem to imagine that somehow we stop the federal government from doing stuff we don’t like and all will be well. But in reality the pressure to do those things will simply transfer to the states and in most cases they’ll end up doing more-or-less the same things the federal government was doing, because simply switching the same pressures to a different institution doesn’t really change the nature of the pressures. As a resident of a notably disfunctional state, this doesn’t really strike me as an improvement.Report
Meh. You’re the resident of a notably disfunctional nation, too. Which one do you think you have a better chance of changing?
Decentralized power is almost always more accountable power. (Yes, yes, I said almost.) Further, I don’t see all of the states adopting all of the policies, etc. of the federal government. I doubt, e.g., Texas and Connecticut will opt for or be willing to pay for the same basket of state provided government services. Thus, one benefit is a return to a degree of genuine federalism where we can both see what works better and what does not and we can, if we please, move to whichever state suits us best.Report
I see little chance of changing either, really. I’ll give you that state governments would eventually improve if they had more power, but they won’t be qualitatively different from the existing arrangements. in the kind of way many anti-Federalist types want.
Since Belgium and Italy choose very similar bundles of government services, but are vastly more different than Texas and Connecticut, and those bundles are also very similar to the one chosen by the US, I don’t see any basis for expecting anything different.Report
They may do the same things, but often they’re going to go about it in a different way. Without NCLB, the states will still (in conjunction with local governments) educate their young. But they may do so in a way that requires less standardized testing, for example. They will still enforce drunk driving laws, but maybe they will set the intoxication limit back at .1 or higher. They’ll let 18 year olds drink. Without the threat of losing federal funding (which they, like residents of the other states, paid into).
Another example is Medicare, where some states are considering (though unlikely to) forgo federal aid so that they can distribute money as they see fit. Draw their own eligibility requirements, for example. The welfare reform of the 90’s gave the states a lot more leeway and different states tried different things. I believe this sort of thing to be extremely healthy.
Obviously, there are limits to the leeway you can give states. I don’t want anyone thinking this to be a Confederacy argument. Slave-owning, Jim Crow, and so on should not be a state prerogative. And some things it only makes sense to look to at a national level. But the balance, in my mind, has shifted more to the federal level than I would prefer (welfare reform notwithstanding). Nothing I can’t live with (just some things I don’t like), but something I wouldn’t mind seeing the breaks being applied to when it comes to future expansion (such as graduated drivers licenses and other things that I believe better settled on a regional or local level).
The way I figure it, it’s easier to leave (or choose not to move to) a state with increasingly unpalatable policies than to leave the USA with the same. Naturally, I want palatable policies on every level. But on the national level, I have little choice but to hope that 51% of my fellow American citizens (or 41-60% of legislators) agree with me.Report
Sure. There’s scope for states to experiment with policies in a way the federal government can’t and in some cases radically different policies may be appropriate for different states. Although I should also point out that certain states are too big and diverse for this to make any sense – California is the obvious example, but arguably others too.
But I don’t buy the idea that this is helped by simply obstructing Federal legislation. As constituted at present, the Federal government has the power to run deficits and control over the macro-economy and the states in most cases must balance their budget every year. This means that only the Federal government can realistically fund countercyclical programs, or even something like Social Security. So even if it delegates implementation to the states, it is going to end up setting requirements for those programs. It has too, or states start complaining about one another.
While I think localism is a great idea, the Euro-zone is currently busy demonstrating that any configuration of political power that doesn’t have control of the currency, fiscal latitude, and funding of major social programs at the same level of subsidiarity is unstable. If you want to cede the ability to run their own welfare programs to the states, you’re going to end up ceding control of the greenback to them too (ie. we go back to the mis-named “free banking” era). It might be a good idea – in fact I’d go a good bit further and and change the currency system completely because in this field I’m a total crank – but it goes beyond what I think most people are thinking of.
The best realistic outcome is that the Feds fund programs and set goals, but the states choose the implementation (and we break up California – okay maybe not that realistic). Any plan to get powers back to the states that mainly involves frustrating the federal government is just going to create even worse federal legislation and even more bankrupt and incompetent state governments, because the states just aren’t capable of doing what the federal government does, but will feel obliged to pick up the slack, and the terribleness of federal legislation is mostly caused by things (like the senate fillibuster) that are supposed to protect the role of the states.Report
Although I should also point out that certain states are too big and diverse for this to make any sense – California is the obvious example, but arguably others too.
Even so, California and Texas, two large and diverse states, nonetheless have different collective social and political cultures from one another. There’s still a collective culture (in each case), even if it’s a diverse one.
This means that only the Federal government can realistically fund countercyclical programs, or even something like Social Security.
Sure. And when it’s something that only the federal government can do, I would imagine that the states will go along. As I said, there are limits to the degree that we would ever want to decentralize. I’m not talking Articles of Confederation here.
If you want to cede the ability to run their own welfare programs to the states, you’re going to end up ceding control of the greenback to them too (ie. we go back to the mis-named “free banking” era).
I do not remotely understand why shifting welfare programs to the states would require this? Welfare Reform did not require this even though it did push things back towards the states. I don’t understand why expanding this would cause federal treasury problems? I can think of some logistical problems it might cause, but that’s not one of them.Report
California is different from Texas, but the different constituent parts of California are as different from one another as the whole is from Texas, too, and the aggregate political culture is a bad fit for each of the bits. The same may be true within Texas, but I don’t know that for sure.
I think I phrased what I said above a bit sloppily – its not a big fiscal issue if the Federal government gives money to states for well-defined purposes (like TANF). The Federal government inevitably has to limit the scope of these programs (as it does with TANF. Medicaid and unemployment), though, since it can’t accept open-ended liability for something someone else is administering, right?
If states want to really run their own welfare programs, as opposed to just administer and tweak federal ones, they need to fund them, which means they need to be able to borrow freely, since these programs are counter-cyclical – they cost most when tax revenues are at their lowest and credit is tightest. States currently have no way to escape their debts other than default and I’m not sure even that has been tested recently – they have no bankruptcy provisions, no ability to print money, no ability to exchange debt for equity. Not coincidentally, most (all?) of them also have balanced budget amendments. Were we really to go down this route, some mechanism for resolving unpayable state debts would have to be created. Last time this existed was in the “free banking” era when banks could back note issues with state (rather than federal) bonds and thereby effectively monetize state debt the way the Fed does for the Feds. Its probably not the best approach, but something in that area would have to give.Report
But how much limit to the scope do they apply? That’s an extremely important question. Do they pass down a very specific formula for eligibility and payouts or do they say “it’s supposed to go to this and how you allocate it and the conditions you apply is a decision between you and your electorate.”
The latter may be taking it a bit too far, as I would want a degree of transparency at the least, but I would prefer something somewhat closer to that approach than the first. Knowing and being responsive to local interests and prorities is their job. Harder to do in California than Vermont, for sure, but easier from Sacramento than DC (and easier for the good people of Mt. Shasta to petition the former than the latter).
And that’s for the countercyclical stuff. A lot of the stuff I am thinking about, such as dictating drinking ages, BAC limits, and perhaps soon graduated licensing by threatening to withhold funds, is mostly just a “We know better than you” power grab. And even when I agree with the federal government over the state government and wish my state would adopt such-and-such policy, I would still prefer more authority to be assigned to politicians closer to me and for different places to be allowed to have different priorities.Report
I’m thinking that by now, changing the manner that the Senate is elected or even abolishing it entirely wouldn’t alter the centralization of power all that much.
To create a real sea change, to radically shake up the status quo, repeal the commerce clause. Allow states all manner of regulatory and taxation authority that are now pre-empted by the federal government, and then one will see some real devolution.
I’m not really in favor of this, but it’s probably the only path for the time being to restore (or alter) the balance. The South pushing state sovereignty every hundred years for all the wrong reasons has poisoned the well pretty badly.Report
The South pushing state sovereignty every hundred years for all the wrong reasons has poisoned the well pretty badly.
That about sums it up.Report
“The South pushing state sovereignty every hundred years for all the wrong reasons has poisoned the well pretty badly.”
That’s what ticks me off so bad about Arizona, or Christine O’Donnell. You’ve got these strong highly-visible states-rights arguments for stupid shit. Like, “we think that states should be free to determine educational cirriculae free from Federal influence!” and I’m all “right on!” And then it’s “and we think that those cirriculae should present Young Earth Creationism as a plausible origin of the planet!” and I’m all “…ffffffuuuuuuuuuuck”Report