Federalism Is Killing US
Judge Louis Brandeis is credited with calling the states the “laboratories of democracy”. The reality at this current moment, however, seems to be entirely opposite. In recent years, especially for those under Republican control, states have rather become the laboratories of autocracy, primarily through partisan gerrymandering and voter suppression. This is just a continuation of this country’s shameful history, where the concept of “states’ rights” has been used as cudgel to enforce white supremacy, as well as to shut down any attempt to truly tell that shameful history, and is now being used again for those very purposes. In addition, many of those same states have become laboratories of death, where tens if not hundreds of thousands have died unnecessarily because of the policy preferences of their leaders. In short, federalism is both literally and figuratively killing this country.
It is federalism that has given us the Electoral College, where Republicans have won just one of the last eight presidential elections but have managed to control the White House for twelve years. Donald Trump lost the popular vote by nearly 3 million, yet still won in 2016 because of less than 100,000 votes across three states. Joe Biden won the popular vote by over 7 million, but only became President due to less than 50,000 votes across three states. It is federalism that has given us the US Senate, where the seats are split 50-50 despite Democrats representing 41 million more citizens; the same US Senate where by 2040, just 30% of the people will control a super majority of 70 seats; and the same US Senate whose 35 members just managed use the filibuster to kill an effort to establish a 1/6 commission despite representing 87 million fewer Americans than the 54 who voted for it, with 11 shameless Senators not even bothering to show up and vote because it was a foregone result. These two elements alone, the Electoral College and the US Senate, have also allowed conservatives to maintain control of the US Supreme Court for most of the history of this country, including the last half century, and based on the current makeup, probably another half century in the future at minimum.
It is federalism, along with John Roberts and that same Supreme Court, that has given us 50 different voting rules for national elections. Partisan gerrymandering and an array of voter suppression rules have badly distorted our democracy, entrenching a minority with almost permanent power. One study showed that gerrymandering has given Republicans a nearly 20 seat advantage in the House of Representatives. It is even worse at the state level. One recent study showed that, after the 2011 redistricting, 45 states had levels of partisan asymmetry of over 10%, meaning that the percentage of state legislative seats represented differed from the percentage of the actual popular vote won by that amount. Of those 45, 43 favored Republicans. During the ensuing decade, this resulted in Republicans maintaining control of the state legislature in Virginia, Pennsylvania, North Carolina, and Wisconsin, despite losing the popular vote in all four states. At the federal level, some of these partisan asymmetry numbers are off the dial. In Ohio, the level was 36%, with Republicans winning a minimum of 75% of the US House seats despite winning only between 50% and 60% of the popular vote in every election during the decade. Federalist control of elections has also led to 21 US House of Representative seats being held open for more than 200 days over the last decade. The result is that the voters in those districts are effectively denied representation for 200 days, which is probably nearly half of the legislative working days of a normal House term. And, ironically, federalism, despite its reserving power to the states, is also what is keeping the residents of the District of Columbia from having real federal representation.
In the aftermath of Trump’s election loss, Republicans have unleashed a barrage of voter suppression measures in almost every state in the country. In at least 11 states, Republicans have already passed laws that make it harder to vote, with most of those bills targeting primarily Democratic constituencies. In Texas, for instance, new voting laws in Texas will result in a decrease in polling sites in Democratic areas and an increase in polling places in Republican areas, as well as allowing partisan poll watchers to harass voters inside the voting area. Some of these new laws also strip control over the elections process from nominally non-partisan or bipartisan positions and move it over to the state legislature or governor. That is the case now in Georgia and Florida. In Arizona, the legislature is trying to strip the Democratic Secretary of State of the power to defend election lawsuits and give it to the current Republican Attorney General, but only until 2023 when the Secretary of State’s term ends.
Partisan manipulation of the state electoral process results in a further distortion of our governing systems. A recent paper showed that Republican control of a state generally led to a severe decline in democratic rights. According to its author, “Results suggest a minimal role for all factors except Republican control of state government, which dramatically reduces states’ democratic performance during this period”. In North Carolina, Michigan, and Wisconsin, GOP-controlled state legislatures have stripped powers from newly elected Democratic governors, a precursor to the stripping of powers from non-partisan election officials. Just as the federalism bias of the US Senate has allowed conservatives to control the US Supreme Court for decades upon decades, so too does gerrymandered control of state legislatures allow control of state Supreme Courts. In GOP-controlled Arizona, the Republican governor was able to pack that state Supreme Court in order to neuter its more progressive members and ensure that a Democratic governor could not tip the balance of the Court. In Pennsylvania, Oklahoma, Missouri, Montana, Alaska, South Carolina, and Indiana, GOP-controlled state legislatures are trying to seize more control of judicial appointments, largely by trying to neuter independent nominating commissions. In Montana, there is a proposal to elect state Supreme Court judges by district rather than statewide, again to ensure more partisan control.
While Republicans may be driving most of these efforts, Democrats are not completely clean either. Illinois is trying to engage in its own partisan gerrymander and are redrawing judicial districts in order to maintain partisan control of its state Supreme Court. In the state’s defense, these will be the first changes in Supreme Court districts in over 60 years. The process in Illinois illustrates how easy it is for all these partisan anti-democratic efforts to spiral into escalation. David Frum has proposed that big Democratic states should threaten extreme partisan gerrymanders of their own if the GOP goes ahead with its partisan gerrymanders in key swing states later this year.
Partisan control of the elections process also manages to nullify efforts at direct democracy, particularly ballot initiatives. In Florida, the legislature, along with the courts, managed to undermine the ballot initiative that restored felon voting rights which passed with 65% of the vote. In Missouri, a “clean government” constitutional amendment that again passed with 62% of the vote was summarily gutted by the GOP state legislature. Legislatures are now trying to limit direct democracy initiatives, with Republicans proposing 144 bills to restrict the practice across 32 states. Changes have already been made in Florida, Idaho, and South Dakota. In Utah, in response to ballot initiatives on Medicaid expansion and preventing gerrymandering, the legislature has made it “harder for members of the public to overrule their decisions or enact policy changes by popular vote”, according to the Salt Lake City Tribune. In Arizona, a recent tax hike on the rich which passed via ballot initiative would be negated by an entirely new tax system proposed by the legislature. In Mississippi, the state Supreme Court invalidated the state’s entire ballot initiative project simply because the state legislature had not bothered to update the number of districts required to pass an initiative since it lost a congressional seat in 1992. Again, although the majority of these efforts are driven by Republicans, Democrats have taken similar action, such as the DC city council overturning the tipped-wage ballot initiative that passed with 56% of the vote.
Perhaps the greatest threat federalism currently poses to democracy is the willful undermining of faith in the electoral process, which is already largely stacked in Republicans’ favor. The fraudulent Arizona recount is more than an attempt to relitigate the November election but rather lay the groundwork for state legislatures to overturn the results of a future election. It now appears similar partisan efforts are underway now in Georgia and Wisconsin. In Texas, the new voting law would no longer require actual evidence to overturn an election, only allegations of fraud that might have effected the outcome. As Jamelle Bouie notes, “first step is republican state legislatures nullifying ballot initiatives they don’t like, next step is republican state legislatures nullifying election results they don’t like”.
Beyond the erosion of democracy, state legislatures are now moving to restrict free speech. In Florida, a proposed new law would prevent social media platforms from de-platforming or even shadow banning any political candidate, but, in the GOP’s usual obeisance to big business, the law includes a carve out especially for Disney. Republican legislatures are launching similar attacks on the teaching of Critical Race Theory or even the discussion of the 1619 Project in their never ending quest to control education. Such bills have been introduced in Arkansas, Iowa, Mississippi, Missouri, Idaho, Oklahoma, Texas, and South Dakota. In Texas, a new law would limit the teaching of slavery and racism, which would seem to make it hard to teach about Texas history at all. In Oklahoma, classes on race and ethnic studies have already been cancelled. All of these efforts will probably be challenged in court, but, until they are overturned, the effect on speech will be chilling.
In addition, GOP legislatures’ have seized more control of their state education systems. In North Carolina, the GOP state legislature has gained more and more control of the University of North Carolina’s Board of Governors (UNCBOG) through its appointments over the last decade. The UNCBOG misled the public about a settlement with Sons of Confederate Veterans. Now, in an unprecedented move, the BOG has intervened to prevent a Pulitzer Prize winning contributor to the 1619 project from gaining tenure. Incredibly, as of 2019, UNC had 622 tenured professors but only eight were Black women.
Federalism is also literally killing us, not just our democracy. The refusal of primarily red states to adopt Medicaid expansion, which is literally free money from the federal government, has resulted in tens of thousands of otherwise unnecessary deaths. In Missouri, the state legislature is refusing to fund the Medicaid expansion that its own citizens voted for last November, effectively killing any expansion and once again sabotaging another direct democracy effort. Medicaid expansion would have happened in Wisconsin when a Democrat became governor, but the Republican legislature stripped the power to make that decision from the governor when he got elected.
Republicans love to claim that gun control laws don’t work, citing urban murder statistics which are once again rising. But a 2016 study showed that 74% of all guns and 86% of handguns used in crimes in New York actually came from other states with far less stringent gun laws. Thousands of New Yorkers died because of that. Many more Americans will die as states such as Texas make owning guns even easier, (yes, even easier than voting), and institute permit-free open carry laws. Another example is the haphazard and largely racist application of the death penalty. DNA evidence that the state of Arkansas refused to test now shows that the man the state executed four years was earlier clearly innocent. In fact, it is estimated that around 10% of all prisoners on death row are actually innocent.
COVID-19, however, illustrated some of the most glaring weaknesses of federalism. The resulting surge in unemployment overwhelmed the 53 individual unemployment systems this country currently uses. It highlighted that many states have purposely created barriers to receiving unemployment. In Arizona 70% of UI applications are denied and in Florida that number is 90%. Even among the most generous states, only 60% of unemployed workers actually receive benefits and, at most, those benefits usually only cover about 40% of the prior wage. One Florida resident described the state’s UI system as “designed for us to fail”, with an aide to Governor DeSantis admitting “It’s a shit sandwich, and it was designed that way”. New York’s UI system also failed and still hasn’t been fixed one year later. In Wisconsin, there was a four month delay in receiving benefits. A recent study found that there were potentially at least 30,000 excess deaths resulting from pandemic-related unemployment. Now, states have begun phasing out the expanded federal unemployment benefits before they actually expire despite the statutory language that requires that the Labor Department to distribute that money.
As Colin Gordon points out, Trump’s response to the pandemic may have been incompetent and intentionally harmful, but federalism already set this country up for failure when dealing with COVID-19. Says Gordon, “An important part of this longer history is federalism: the abdication of national responsibility for basic social policy standards to state governments. Wishfully characterized as a way of nurturing ‘laboratories of democracy’ attuned to local needs and values, welfare state federalism is in fact a chronic source of inequity and unequal protection…Deference to state governments—many without the capacity or the willingness to make meaningful investments in public goods and services—also has significant effects on the broader social determinants of health, on everything from school funding and segregation to economic inequality and environmental risk. For all these reasons, disparity in health outcomes across the states are as deep and profound as those found in cross-national comparisons”.
The CDC may have put out national guidelines but states almost immediately began ignoring certain elements or tweaking those rules. States created their own definitions of “essential workers” and social distancing requirements. School closure metrics were all over the place, as were metrics for re-opening the economy. Soon, even mask-wearing became a partisan issue and the elimination of mask mandates continues to fuel infections to this day. Worse, state legislatures and governors began preventing localities from enforcing certain COVID protocols, again proving that the Republican mantra of “local control” is simply contingent on where they hold power. Super-spreader events like Florida spring break and the Sturgis rally spread infections to states that were actually doing a decent job of controlling the virus. Even the Supreme Court got involved, carving out a religious exception to the pandemic protocols regarding size of gatherings. The official tally of deaths from COVID is now over 600,000 but there could be anywhere from 60,000 to 160,000 in additional excess deaths that are also probably pandemic related. That estimate of excess deaths only covers 2020 and does not include the worst of the crisis early this year where the majority of deaths were clearly predictable and preventable. Even more distressing is the fact that 40% of those 600 plus thousand deaths were also preventable with proper protocols in place. And our system of federalism bears much of the blame for that failure.
We now see the same effect in vaccine distribution. As the Kaiser Family Foundation noted early this year, “Overall, we find states are increasingly diverging from CDC guidance and from each other, suggesting that access to COVID-19 vaccines in these first months of the U.S. vaccine campaign may depend a great deal on where one lives. In addition, timelines vary significantly across states, regardless of priority group, resulting in a vaccine roll-out labyrinth across the country”. That prediction has borne out as Republican controlled states have significantly lagged behind in vaccine distribution.
Winston Churchill once said that “Democracy is the worst form of government, except for all the others”. But it is hard to look at all of the above and claim that our federalist system is working. The system has been unable to respond to the epidemics of COVID, gun violence, and drug abuse. It is increasingly unable to deliver basic services for many of our citizens. It has created a system of entrenched minority rule. That minority has already attempted a violent and deadly coup to unseat an opposition President who won a free and fair election despite the structural imbalances he had to overcome. That minority is now set on ensuring that it can overturn the next election with a thin veneer of legality, should it lose again. Yes, the Republican party is largely to blame for many of these failures as it has descended into a far-right autocratic party even more extreme than those found in Europe. But it is our federalist system that has allowed that minority Republican party to still wield enormous power. Now it is true that busting the filibuster and passing voting rights legislation, including, most importantly, non-partisan redistricting, will mitigate at least some of the damage, especially at the federal level. But Republicans in states like New Hampshire are already talking about having separate electoral systems for federal and state elections, as well as moving those state and local elections to an off-year in an effort to maintain their power, thereby ensuring that much, if not most, of the anti-democratic biases of federalism will remain.
The two existential crises facing our country at this time are the erosion of democracy and climate change, and, in many ways, we have reached the point of reinforcing negative feedback loops in both. With climate change, global warming melts the ice caps and warms the oceans, which only further warms the climate, etc. With our democracy, as political scientist David Faris notes, “There’s a very circular structure to this kind of proto-authoritarianism. You have anti-democratic practices at the state level that produce minority Republican governments that pass anti-democratic laws that end up in front of courts that are appointed by a minoritarian president and approved by a minoritarian Senate that will then rule to uphold these anti-democratic practices at the state level”.
So far, we seem to be incapable of responding adequately to either crisis. With both climate and our political system, when things get so extreme, extraordinary measures are required to restore balance. The last time our democracy faced an existential threat, there was a civil war and the writing of a reformed Constitution with the addition of the Reconstruction amendments, whose full implementation has been a constant struggle for the last 150 years, primarily because of federalism. When it comes to today’s existential threat to democracy, as G. Elliott Morris writes, “The single biggest reason Republicans can pursue anti-democracy positions is because they can win control of federal + state governments with minorities of the vote…the only real solution to *gestures wildly* ‘all of this’ is to write a new constitution”. But the chances of that happening today are nonexistent, while the chances of political violence are far greater. Until the system itself is radically reformed, federalism and an extremist Republican party that exploits its inherent weaknesses will continue to literally kill us and our democracy.