Does federalism still matter? with Gordon Lloyd (San Diego Union-Tribune) April 3, 2005

When Congress recently enacted special legislation opening the federal courts to Terri Schiavo’s case, the word “federalism” suddenly reappeared in the national vocabulary. Perhaps you remember federalism, the old-fashioned idea that American democracy is not just about making policy decisions in Washington, D.C., but also concerns which branch and which level of government has the power to make each decision. With the Republican leadership neglecting it in recent years, one wonders whether federalism has any constituency or future.

The traditional political divide has separated Democrats — the party of big government, higher taxes and spending, and federal solutions — from Republicans — the party of smaller government, lower taxes and spending, and a preference for state, local or even individual decisions. Until recently, Republicans have quoted Thomas Jefferson with enthusiasm: “That government is to be involved, better local and state action than federalism.

But a funny thing happened on the way to the first Republican White House coupled with the first Republican House and Senate in 50 years. Under Republican leadership, federal spending and deficits are at all-time highs. And several commentators have observed that Republicans no longer seem to be the party of smaller government either. Indeed, the emerging conventional wisdom holds that the Bush administration and the Republican Congress seem less interested in the traditional conservative commitment to smaller government, focusing instead on using big government to serve conservative purposes.

Now the question arises, are Republicans also giving up on federalism?

Take education, for example. Traditionally a matter for local and state government, education has never been a federal priority. As recently as 1996, the Republican Party platform still sounded Ronald Reagan’s theme that, with no proper federal role in education, the U.S. Department of Education should be eliminated altogether. Of course, Democrats in Congress blocked closing the department. But less than ten years later Republicans are now undertaking a wholesale federalizing of education with the national testing and funding scheme of the No Child Left Behind Act.

Tort reform has recently moved to the top of the agenda in Washington. But wait, tort law — providing civil remedies for injuries or wrongs — has always been a matter of state common law, not federal statute. Here the case grows more complicated since some of what Republicans are calling “tort reform” is really more in the nature of court procedural reform, which is a federal matter. The recent bill to limit federal class action lawsuits, for example, is a proper federal initiative.

But the next proposed step in tort reform, capping punitive damages in lawsuits, should be undertaking at the state level. And for good reason, since there are several ways to eliminate excessive damages awards and we do not yet know which ones are most effective. This is where federalism does its best work, allowing as many as 50 state experiments to find out which programs produce the desired results rather than imposing a single federal solution. History shows that once one state closes the door on abusive lawsuits, attorneys file those cases elsewhere until, finally, reforms become pervasive.

Other values and culture issues have moved onto the federal plate. When Massachusetts and San Francisco attempted to authorize gay marriage, federal legislation and Constitutional amendments were advanced. With congressional action on partial-birth abortion and in the Schiavo right to die case, the federal government has now weighed in on traditional state issues from birth to marriage to death.

Democrats, of course, are all too happy to join in the federalizing fun. Capitalizing on concerns about election ballots and vote counting, their proposed “Count Every Vote Act” would essentially strip away the states’ constitutional right to regulate elections and increasingly move that power to the federal government. As in the education reforms of No Child Left Behind, states would be required to conform to new federal standards about all manner of balloting and vote counting matters.

So what’s going on here? Why has federalism fallen on such hard times, especially in a Republican-controlled White House and Congress? Why has keeping power away from Washington fallen into such disfavor on the watch of a president who once served as governor of a major state?

The explanations are many and varied, and range from the high-minded to the cynical.

First, we should acknowledge that federalism is not a yes or no question, but a paradox that incorporates some of the conflicting values of democracy. American federalism is fundamentally a middle ground response to the challenge of political pluralism on one hand and political unity on the other. Many would argue that you can’t have it both ways, that pluralism and unity are antithetical. But the wisdom of the Founders was that they wanted both “pluribus” and “unum” and they called this third way “federalism.”

The genius of American federalism combines greater decentralization and freedom in smaller communities with a more unified and central approach at the larger federal level. Over the years, the delicate balance between the pluribus, protected by the states, and the unum, governed by the nation, has been challenged and even undone.

Crises such as the Civil War and the Great Depression led to greater concentrations of federal power, a movement that reached its modern peak in the Great Society programs of the 1960s. Beginning with President Reagan in the 1980s, the themes of pluralism and state power began to be heard more strongly. The Republican Contract With America and even President Clinton’s admission that “the era of big government is over” reinforced this into the 1990s.

Perhaps then we have arrived at a time in the pendular swing of history when the federal role will again be strengthened and it is merely coincidence (and irony) that Republicans are in charge. The war on terror has consolidated federal power, with the new Department of Homeland Security and the Patriot Act. It may be that Republicans feel that same sense of crisis about education, abusive lawsuits and the culture wars and seek to enact more federalized solutions to these domestic problems.

Another explanation for increased federal legislative action is to provide a counterweight to judicial activism. So it was that the Massachusetts Supreme Court decision on gay marriage led to congressional action to protect traditional definitions of marriage. State and local decisions banning the posting of the Ten Commandments Defense Act. Similarly, the Pledge Protection Act was enacted to counter judicial activism that sought to remove “under God” from the Pledge of Allegiance. Even while congressional Republicans attempt to confirm federal judges who will not engage in judicial activism, they also seek to stop some products of judicial activism in their tracks.

There is also a philosophical reason why republicans may be neglecting federalism: the rise of neoconservatives. Neoconservatives are far more concerned about ends than means. So if we need to fight terrorism or illiteracy or promote democracy abroad, let’s do it and not worry so much about processes like federalism. The fact that this leads to more federal programs and higher deficits is secondary, in the view of the ends-justify-the-means neocons. In this sense, some believe the Bush administration is redefining Republicanism to be less about smaller government and federalism and more about promoting democracy abroad and the ownership society at home, while fixing as many problems along the way as possible.

Finally, there are those who believe the Republican shift away from federalism is really about power and politics and not ideology or policy. Why would Republicans turn their backs on one of their foundational doctrines? Because, as the party in power, they can. Traditional federalism imposes a major restraint on the use and abuse of federal power, yet Republicans who now have the power excuse themselves from the constraint because they don’t see themselves as dangerous. Their goals are worthy — win the war on terror, educate children, stop abusive lawsuits — and their means, federalizing domestic policy, are no different than the Democrats have used for decades. It’s their turn.

Choose your favorite motive but, in the end, democratic principles like federalism matter. Many conservatives, though reluctant to voice reservations when their party is in power, nevertheless wonder what brand of Republicanism they have elected. And don’t be surprised if, as the party out of power, the Democrats suddenly discover the virtues of state’s rights in areas such as gay marriage and the right to life. While the party not in power in Washington, D.C. often supports federalism as a check on its opponents, American democracy would be greatly strengthened by some federalist self-restraint from the Republican Leadership.

This op/ed appeared on Page G-6.