Monday, October 25, 2010

More All Power to the States

Steve Bennen over at the Washington Monthly takes Senate Republican Leader Mitch McConnell's plan to continue obstruction in the next Congress for a stroll. The minority leader has dedicated his caucus to refusing to compromise in the least part with Democrats in congress. So far, Republicans have voted no on Republican ideas so they could reap the benefits of a depressed economy, high joblessness, and a housing crisis by blaming the majority. McConnell in a National Journal interview has doubled down on the strategy of the last two years, promising to do the same for the next two.
"[W]e need to treat this election as the first step in retaking the government. We need to say to everyone on Election Day, 'Those of you who helped make this a good day, you need to go out and help us finish the job.' [...]

The single most important thing we want to achieve is for President Obama to be a one-term president.... Our single biggest political goal is to give our nominee for president the maximum opportunity to be successful."
Apparently "successful" means to have as few policy overlaps as possible with President Obama. That means that the Republican leadership will be attempting to hold together solid "No" blocks on every single major policy put forth in the next two years at the federal level. If McConnell gets his way, and he might, there will be very little that gets done in the 112th Congress. Some Republicans have already started foreshadowing a 1994 redux government shutdown While Benen implicitly is making the 'that's why you elect Democrats--or at least less partisan Republicans' argument, I think McConnell may be playing a deeper game here.

Federalism, the cause celebre of either party when it is in the minority in the federal government, can for our purposes be defined as a balancing of power between the federal government and the governments of the states. (NB: I grew up in Washington, DC which has no government other than Congress, so this concept is a little bit foreign to me in operation.) States theoretically have the power to perform any duty that is granted to the state government in its Constitution. The people have vested state governments with certain powers which they have not otherwise delegated to Congress and the federal government. States used to perform the lion's share of regulations and day-to-day rule making. But as technology allowed for more interstate commercial activity, the states gradually became less competent to monitor and control larger and larger swaths of regulatory ground. This is one complaint of the modern conservative movement. The 1937 break in Supreme Court doctrine and the New Deal recognized the changing landscape, and conservatives have blamed the federal government for 'encroaching' on traditional state power. While one might as well blame the UN or WTO for economic globalization over the last few decades, the truth is probably that these institutions have reacted to a changing economic landscape.

But back to our story about federalism: As the states stopped doing the important work which was visible in daily-life, they lost the personnel and funding required to do this work. State legislatures are notoriously unprofessional in most cases. Minimal or non-existent staffs do not have the time to check the entire body of statutory laws which a change in the law touches, much less the case law which has developed. State legislators are in many cases operating blind when they draft statutes. Proponents of state power think that this hollowing out is an effect of giving state legislatures less to do. Congress enacts enough of our laws that state legislatures don't have enough on their plates to justify keeping legislators around for a full session, much less paying them or their staffs to do so.

If McConnell and colleagues are serious about preventing Congress from doing anything in the 112th Congress, we might be able to test that assumption. After all, with Congressional action out of the picture, the evolving economic, labor, societal landscape will require more local rule-making.

There is, as there always is, an alternative to asking the state legislatures to do their job. By not acting, they're effectively punting any new issues to the courts. Like all good small-d democrats, I think legislatures are better suited to solving arising problems than judges, so lets hope that if Republicans do manage to stall all Congressional action, state legislatures will fill the void.

NB: the title intentionally reflects the radicalism inherent in attempting to stop all government action which mirrors the Bolshevik motto of "All Power to the soviets."

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